JUDGMENT : This appeal by the complainant is against the acquittal of the accused for the offence under section 138 of the Negotiable Instruments Act . 2. As per the complaint, the accused borrowed Rs.75,000/- from the complainant during December 2003, and subsequently when the complainant demanded back the amount, the accused issued a cheque dated 10-05-2004 for Rs.75,000/- to the complainant. When the complainant presented the cheque for collection, the same was dishonoured as per memo dated 24-05-2004 on two grounds. (i) insufficient funds (ii) alteration in date require drawer confirmation. 3. Thereafter, the complainant issued statutory notice and in spite of notice, the accused failed to pay the cheque amount to the complainant. 4. Before the trial court, from the side of the complainant, PW1 was examined and Exhibits P1 to P4 were marked and from the side of the accused, DWs 1 and 2 were examined and Exhibits D1 to D3 were marked. 5. The trial court found the accused guilty of the offence under section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for 3 months and to pay a compensation of Rs.75,000/- to the complainant and in default of payment of compensation to undergo simple imprisonment for 6 months. 6. Against the judgment of the trial court, the accused filed Criminal Appeal No. 246 of 2006 and as per the impugned judgment of the Additional Sessions Judge (Adhoc-I) Manjeri dated 21-05-2008, the judgment of the trial court was set aside and the accused was acquitted of the offence under section 138 of the Negotiable Instruments Act . 7. In the present appeal, when there was no representation for the appellant, this Court issued notice to the appellant and the same was returned with the report, addressee not known and thereafter, this Court appointed Adv. Sudeep Aravind Panicker as State Brief to represent the appellant. 8. Heard Sri.Sudeep Aravind Panicker representing the appellant as State Brief and Adv.U.K.Devidas, appearing for the first respondent/accused and Sri.Alex M.Thombra, the learned Senior Public Prosecutor for the second respondent. 9. The learned State Brief representing the appellant argued that the finding of the Sessions court that there is material alteration in Ext.P1 cheque and that the accused has succeeded in rebutting the statutory presumptions is not legally sustainable. 9. The learned State Brief representing the appellant argued that the finding of the Sessions court that there is material alteration in Ext.P1 cheque and that the accused has succeeded in rebutting the statutory presumptions is not legally sustainable. In this connection, the learned State Brief cited the decision of the Hon'ble Supreme Court in Bir Singh v. Mukesh Kumar, [2019 (1) KLT 598 (SC)] to point out that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. The learned counsel representing the appellant also cited the decision of this Court in Bhaskaran Chandrasekharan v. Radhakrishnan [1998 KHC 162] and argued that once there is admission of issuance of a cheque and even if there is insertion of a date on an undated cheque, the same cannot be a material alteration and it is to be presumed that the drawee has impliedly consented to put the date on the cheque. 10. The learned counsel for the accused/first respondent argued that the complainant has no case that he received an undated cheque from the accused and therefore the above decisions cited by the learned counsel representing the appellant is not applicable to the facts and circumstances and there is no reason to interfere with the finding of the Sessions court that the defence version is more probable and that the accused has succeeded in rebutting the presumptions. It is also argued that Ext.P1 cheque is of the Nadungadi Bank Limited and Ext.P2 dishonour memo is issued from Punjab National Bank and the decision of this Court in Criminal M.C. No.1612 of 2023 (2025:KER:44771) would show that on amalgamation of the Nadungadi Bank Limited with Punjab National Bank, cheques drawn on the Nedungadi Bank Limited will not fall within the definition of Cheque as per Section 6 of the Negotiable Instruments Act . 11. PW1 is the complainant and for the purpose of Chief Examination he filed affidavit reiterating the averments in the complaint. In cross examination, PW1 would say that he is not aware for what purpose the accused borrowed the money. Regarding the source PW1 would say that he was in possession of Rs.80,000/- in connection with the sale of rubber and a tree. In cross examination, PW1 would say that he is not aware for what purpose the accused borrowed the money. Regarding the source PW1 would say that he was in possession of Rs.80,000/- in connection with the sale of rubber and a tree. According to PW1, the accused signed the cheque in his presence. But he cannot say at which place the accused filled the cheque. PW1 denied the suggestion that he made alteration in the cheque without the knowledge or consent of the accused. However, he admitted that there is a correction in the date written in the cheque. When the learned counsel for the accused made a specific suggestion to PW1 that he obtained Ext.P1 cheque from the accused as security at the time of advancing the chitty amount, he has not denied the same and instead stated that the same is not known to him. PW1 denied the suggestion that in spite of payment of the chitty amount by the accused, he has not returned the cheque. 12. The accused is examined as DW2 and he deposed that the complainant was conducting a chitty during the period 1998-1999 and when he approached the complainant for receiving the chitty amount, the complainant demanded a blank cheque as security and accordingly, he entrusted a blank cheque and even after payment of the chitty amount, the complainant has not returned the cheque entrusted as security by saying that the same is missing. DW2 also stated that on receipt of the notice, he approached the complainant and then the complainant assured him that there will be no further proceedings in the matter. 13. The Manager of Punjab National Bank, Perinthalmanna Branch is examined as DW1. According to DW1, Ext.P1 cheque is of Nedungadi Bank Limited and the same is issued to the account holder on 03- 07-1998. He also deposed that Ext.P2 dishonour memo is issued by Punjab National Bank. In cross examination, DW1 stated that even after the take over of Nedungadi Bank by Punjab National Bank, they are honouring the cheques of Nedungadi Bank. 14. He also deposed that Ext.P2 dishonour memo is issued by Punjab National Bank. In cross examination, DW1 stated that even after the take over of Nedungadi Bank by Punjab National Bank, they are honouring the cheques of Nedungadi Bank. 14. 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 rebutting 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.” 15. 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. 16. 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. 17. 17. It is well settled that the standard of proof which is required from the accused to rebut the statutory presumption 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. 18. The decision of the Honorable Supreme Court in Sanjabij Tari v. Kishore S.Borcar [2025(6) KHC 250(SC)] shows that ultimately, it becomes the duty of the courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence. 19. It is pertinent to note that the specific case of the accused is that he subscribed for a chitty conducted by the complainant and at the time of receiving the bid amount in the chitty during 1999, the complainant demanded a blank signed cheque as security and accordingly, he entrusted a blank signed cheque to the complainant and in spite of payment of all the chitty installments, the complainant has not returned the cheque by saying that the same is missing. 20. As noticed earlier, Ext.P1 cheque is of Nedungadi Bank Limited and Ext.P2 dishonour memo is of Punjab National Bank. The evidence of PW1 in cross examination would show that his evidence in chief examination regarding the alleged transaction relatable to the time of execution and issuance of the cheque is not at all reliable. PW1 is not aware for what purpose the accused borrowed the money. The specific suggestion in cross examination that the accused entrusted Ext.P1 cheque as security at the time of receiving the bid amount in the chitty is not denied and PW1 only stated that the same is not known to him. The evidence of DW1 clearly shows that the cheque was issued from the Nedungadi bank on 03- 07-1998 and after the take over of Nedungadi Bank by Punjab National Bank, no cheque was issued to the accused from Punjab National Bank. 21. The evidence of DW1 clearly shows that the cheque was issued from the Nedungadi bank on 03- 07-1998 and after the take over of Nedungadi Bank by Punjab National Bank, no cheque was issued to the accused from Punjab National Bank. 21. In Shree Daneshwari Traders (M/s.) v Sanjay Jain and Another [ 2019 (4) KHC 495 ] , the Hon'ble Supreme Court followed the principles formulated in Kumar Exports v. Sharma Carpets [2009 KHC 219] wherein it is held as follows : “20. The accused in a trial under S.138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non- existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in S.114 of the Evidence Act to rebut the presumptions arising under S.118 and 139 of the Act.” 22. When considering the evidence in this case on the basis of the above legal principles, it is apparent that there existed a contradiction in the complaint moved by the appellant as against his cross examination relatable to the time of execution and issuance of the cheque and in view of the evidence of DW1 Bank Manager regarding the issuance of the cheque from the Nedungadi Bank to the accused on 03-07-1998 and the dishonour of the cheque as per Ext.P2 memo dated 24-05-2004 by the Punjab National Bank, I find that the accused has brought on record sufficient material to rebut the statutory presumptions and therefore, I find no reason to interfere with the findings in the impugned judgment that the case of the accused is more probable and 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.