JUDGMENT : JOHNSON JOHN, J. This appeal by the complainant is against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I Act’ for short). 2. The allegation in the complaint is that the accused borrowed Rs.1,50,000/- from the complainant during April, 2002 and towards discharge of the said liability, he issued cheque dated 25.7.2002 for Rs.1,50,000/-. Subsequently, when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of issuance of statutory notice, the accused failed to pay the cheque amount to the complainant. 3. Before the trial court, from the side of the complainant, PWs 1 and 2 were examined and Exhibits P1 to P5 were marked and from the side of the accused, DW1 examined and Exhibit D1 marked. 4. After considering the oral and documentary evidence on record and hearing both sides, the trial court found that the complainant has not succeeded in proving the offence under Section 138 of the N.I Act against the accused and hence, the accused was acquitted. 5. Heard Smt. Bhavana K.K., the learned counsel representing the learned counsel for the appellant on record, Sri. P.V. Anoop, the learned counsel representing the learned counsel for the 1 st respondent/accused on record and Smt. Hasnamol N.S., the learned Public Prosecutor appearing for the second respondent. 6. The learned counsel for the appellant argued that the trial court ought to have found that the accused has not rebutted the statutory presumptions in favour of the complainant. It is argued that the finding of the trial court that there is no proper service of statutory notice as contemplated under Section 138 (b) of the N.I Act is not legally sustainable. 7. But, the learned counsel for the accused/first respondent argued that the complainant has not disclosed the date of execution and issuance of the cheque in the complaint or in the chief affidavit of PW1 and that the evidence of DW1 and Exhibit D1 agreement would clearly show that Exhibit P1 cheque bearing No.2599 was one among the cheques entrusted by the accused as security in connection with Exhibit D1 transaction to one Manoharan on 10.06.1999. It is also argued that the specific case of the accused is that he has not received statutory notice or any intimation and that during the relevant period, he was not residing at the address in Exhibit P4 notice. 8. The evidence of PW1 in cross examination shows that the accused is residing on the side of Koya road at Puthiyangadi. In Exhibit P4 notice, the address of the accused is shown as Thiruvoth Gayathri, P.O. Chelannur, Kozhikode. Even though, PW2, postman, deposed in chief examination that he informed the accused about the notice, he admitted in cross examination that he has not given any direct intimation to the accused regarding the notice. In cross examination, PW2 deposed as follows: 9. In C. C. Alavi Haji v. Palapetty Muhammed and Another [ 2007 (2) KHC 932 ] , a three member Bench of the Honourable Supreme Court held that giving notice to the drawer before filing a complaint under Section 138 of the N.I Act is a mandatory requirement and if the accused is able to prove that the notice was not received by him and he has no knowledge about such notice, there is a violation of the provision. In the said decision, it was also observed that in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. The Honourable Apex Court also held that the question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. 10. In this case, Exhibit P4 notice returned to sender, shows the endorsement ‘absent- intimated’ and the evidence of PW2, postman, in cross examination clearly shows that he has not given any direct intimation to the accused and there is also nothing in evidence as to whom PW2 has given intimation regarding Exhibit P4 notice. Further, the complainant has not made any attempt to prove that the accused knew about the notice and deliberately evaded service to defeat the process of law. 11. Further, the complainant has not made any attempt to prove that the accused knew about the notice and deliberately evaded service to defeat the process of law. 11. In the absence of any material to show that the service of notice has been fraudulently refused by the accused or the accused had knowledge about the notice, it cannot be held that there is proper service of statutory notice as contemplated under Section 138 (b) of the N.I Act. 12. The learned counsel for the appellant argued that the evidence of DW1 and Exhibit D1 are not sufficient to arrive at a conclusion that the accused has rebutted the statutory presumptions in favour of the complainant. It is argued that the accused has not chosen to enter the witness box and the accused has also not examined Manoharan, the second party in D1 agreement, and therefore, the trial court is not justified in relying on Exhibit D1 agreement and the evidence of DW1 for arriving at a conclusion that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant. 13. It is well settled that the standard of proof which is required from the accused to rebut the statutory presumptions under Sections 118 and 139 of the N.I Act is preponderance of probabilities and that the accused is not required to prove his case beyond reasonable doubt. The standard of proof, in order to rebut the statutory presumption, can be inferred from the materials on record and circumstantial evidence. In Basalingappa v. Mudibasappa ( (2019) 5 SCC 418 ) , the Hon'ble Supreme Court summarised the principles of law governing the presumptions under Sections 118 and 139 of the N.I Act in the following manner: “(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. (ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutÝng the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. The standard of proof for rebutÝng the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the accused to come inthe witness box to support his defence.” 14. In APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and Others [ 2020 (1) KHC 957 = 2020 (1) KLD 313 ], it was held that whenever the accused questioned the financial capacity of the complainant in support of his probable defence despite the presumption under Section 139 onus shifts again on the complainant to prove his financial capacity. 15. In ANSS Rajashekar v. Augustus Jeba Ananth [ 2019 (2) KHC 155 = 2019 (1) KLD 492 ] , it was held that when evidence elicited from complainant during cross examination creates serious doubt about the existence of debt and about the transaction and the complainant fails to establish the source of funds, the presumption under Section 139 is rebutted and the defence case stands probabilised. 16. Exhibit D1 agreement dated 10.06.1999 is seen attested by a notary public and page 2 of the said agreement would clearly show that Exhibit P1 cheque bearing No.2599 of the Chelannur Thamarassery Service Co-operative Bank Ltd. is one among the 3 cheques entrusted as security by the accused to one Manoharan. 17. When considering the evidence in this case on the basis of the above legal principles, it can be seen that the evidence of PW1 regarding the alleged transaction relatable to the time of execution and issuance of cheque is not at all reliable. 17. When considering the evidence in this case on the basis of the above legal principles, it can be seen that the evidence of PW1 regarding the alleged transaction relatable to the time of execution and issuance of cheque is not at all reliable. The printed portion in the cheque relating to the date would clearly show that the cheque in question was related to the period prior to the year 1990, in as much as it is printed in the top right hand side of Exhibit P1 as “ ….198….” and in the said portion, the date is written as ‘25-07-2002’. 18. I find no reason to disagree with the finding of the trial court that the evidence of DW1 and Exhibit D1 probabilise the version of the defence, especially in view of the fact that the complainant has not disclosed the date of execution and issuance of the cheque in the complaint or in the chief affidavit and therefore, I find no reason to interfere with the finding in the impugned judgment that the complainant has not succeeded in proving the offence under Section 138 of the N.I Act against the accused. Therefore, I find that this appeal is liable to be dismissed. In the result, this appeal is dismissed.