JUDGMENT : MOHAMMED NIAS C.P., J. 1. The defendant in a suit for the realisation of money is the appellant. 2. O.S.No.362 of 2011 was filed by the respondent/plaintiff alleging that he had advanced an amount of Rs. 2,00,000/- to the appellant/defendant for business purposes on 07.10.2010, which the appellant agreed to repay within 5 months, besides issuing a cheque dated 25.02.2011 for Rs. 2,00,000/-, drawn on the Syndicate Bank, Alappuzha Branch. The cheque, on presentation, was dishonoured on 12.03.2011 for insufficient funds. A lawyer's notice was issued, to which the appellant replied, disputing the transaction and the liability, which led to the filing of the suit. 3. The appellant, apart from denying the plaint allegation of receipt of any amount from the respondent, specifically pleaded that he had not executed the cheque in question on 25.02.2011 as alleged and that the same was one among the cheque leaves handed over by him to his brother Rafeek as part of the financial dealings between them. The appellant's brother, Rafeek, who also had monetary transactions with the plaintiff, handed over those cheques to the plaintiff/respondent, misusing which the claim was founded. 4. The respondent had also instituted four criminal cases against the appellant based on those cheques under Section 138 of the Negotiable Instruments Act (for short the 'N.I. Act'), alleging dishonour, all of which were settled out of court between the appellant and respondent on 04.03.2010, on making payment. The appellant was made to believe that he had only four cheques with him. The plaintiff had retained the cheque in question, which he presented on 12.03.2011, leading to dishonour of the same. 5. The trial court considered the evidence of PW1 and PW2 and Exts.A1 to A4 and Exts.C1 and C2 were marked on the side of the respondent. The appellant was examined as DW1, and the handwriting experts who examined the cheque as DW2 and DW3, respectively and also marked Exts.B1 to B17 on the side of the appellant. 6. Earlier, the trial court had decreed the suit, which was challenged by the appellant by filing RFA No.752 of 2016 before this court, wherein this court found that the handwriting expert, who examined the disputed cheque, was not qualified and therefore his report cannot be accepted in evidence and accordingly remanded the matter. Thereafter, the trial court again decreed the suit. 7. Thereafter, the trial court again decreed the suit. 7. The trial court, after remand, found that the evidence of PW1 and PW2 shows that Ext.A1 cheque was executed and that the defendant had borrowed an amount of Rs. 2,00,000/-. The trial court also relied on the presumption under Section 118 of the N.I. Act to hold that the cheque is supported by valid consideration. The fact that the disputes were settled on 04.03.2010, and the improbability of a further borrowing by the defendant, was not accepted by the trial court. Thus holding that the defendant failed to rebut the presumption under Section 118 of the N.I. Act, granted a decree for Rs. 2,00,000/- with interest at the rate of 9% per annum from the date of borrowal, ie, 07.10.2010, till the date of the decree and thereafter at the rate of 6% per annum till realisation. 8. The learned Senior Counsel for the appellant, Sri. Raghuraj N. instructed by Adv. Vivek Menon, argues that the court below had gone wrong on facts as well as in law while passing the impugned judgment. It is his submission that Ext.A1 cheque was illegally retained by the respondent/plaintiff and misused to unjustly enrich himself, and that the trial court did not take note of the crucial fact that four criminal cases, in which the subject matter cheques bearing numbers 535697, 535698, 535699 and 535700, were issued on 20.02.2009, 25.02.2009, 21.03.2009 and 20.03.2009 respectively and therefore Ext.A1 cheque, which bears an earlier serial number, but allegedly issued two years later. That apart, the criminal cases, instituted based on the above cheques, were settled on 04.03.2010 by paying Rs.4,00,000/- as cash and Rs.1,00,000/- by way of cheque dated 04.06.2010 and thereafter it was highly improbable for the appellant to have made a fresh borrowal of Rs.2,00,000/- on 07.10.2010, that too by issuing a cheque which had a serial number much previous to the cheques referred to above. 9. It is also argued that the report of the handwriting expert, Ext.C2, was unduly relied on by the trial court, despite the evidence of the expert that there was no scientific examination and that what was carried out was an examination of the characteristics of the writings. 9. It is also argued that the report of the handwriting expert, Ext.C2, was unduly relied on by the trial court, despite the evidence of the expert that there was no scientific examination and that what was carried out was an examination of the characteristics of the writings. It is also argued that the finding in the earlier remand order by this court that there was force in the contention of the defendant that there was no occasion for a fresh borrowing and issuance of a fresh cheque after the settlement was not considered at all. 10. The trial court also did not appreciate the evidence of PW2, a close friend of the plaintiff, who allegedly saw the appellant executing the cheque in question. The entire evidence of PW2 was misread to hold that there was a valid execution. It is also argued that the presumption under Section 118 of the N.I. Act could never have been drawn as the instrument itself is not a valid one within the meaning of Section 138 of the N.I. Act, for the reason that even going by the case of the plaintiff, the cheque was dated 25.02.2011 and the instrument could have been treated as valid only up to 25.08.2011, and the suit filed solely based on the negotiable instrument was instituted only on 20.12.2011, three months after the six-month validity of the cheque. Thus, the entire probabilities of the case clearly showed that the transaction alleged was false. 11. It is also argued that, based on the same cheque, proceedings were sought to be taken under the N.I. Act, but C.M.P. No.2137/2011, which was an application seeking condonation of delay in instituting proceedings under Section 138, was dismissed as per order of the Judicial First Class Magistrate -I, Alappuzha, dated 24.08.2011. Ext.B17 order, the Magistrate Court found that the case of illness put up by the plaintiff was wrong as he was actively participating in several cases under the 138 Act before the said court itself, and this clearly showed that he had no regard for truth in proceedings before the courts. He also relied on the judgments in Letha @ Hema Latha v. U. Damodaran,  2025 KHC 1824, M/s Kumar Exports v. M/s Sharma Carpets,  2009 KHC 219 and Basalingappa v. Mudibasappa, 2019 (2) KHC 451 . He also relied on the judgments in Letha @ Hema Latha v. U. Damodaran,  2025 KHC 1824, M/s Kumar Exports v. M/s Sharma Carpets,  2009 KHC 219 and Basalingappa v. Mudibasappa, 2019 (2) KHC 451 . He argued for setting aside the judgment and decree and allowing the appeal and dismissing the suit. 12. The learned Counsel for the respondent, Sri. S.K. Balachandran, on the other hand, contended that the transaction stood proved by the evidence of PW1 and PW2. It is also argued that the evidence of the expert clearly showed that the cheque was written by the defendant himself, and therefore, the contention that it is not validly executed cannot be accepted. It is also argued that the payment of Rs. 2,00,000/- is proved by the evidence of PW1 and PW2, and even if the cheque in question was not valid after a period of six months, the decree granted is only to be sustained as the transaction is proved. It is further argued that though the cheque in question was previous to the ones which were the subject matter in the earlier proceedings and which were settled, the defendant had, in fact, given a cheque of more or less the same time while settling the dispute by paying Rs.1,00,000/- and thus the contention that the cheque in question is older than the ones which were the subject matter of the N.I. Act proceedings also cannot hold good. 13. Heard the learned counsel on both sides and perused the records. 14. As rightly found by this court in the earlier order of remand, the cheque was issued on 07.10.2010 after the settlement of four cases under Section 138 of the N.I. Act as early as 04.03.2010 by issuing a cheque dated 04.06.2010. Thus, there is considerable force in the contention of the defendant that there could not have been any occasion for a fresh borrowal or the issuance of a fresh cheque subsequently. To appreciate this contention, the numbers of the cheques which were the subject matter of the proceedings between the parties and the date of issuance of those cheques are relevant. Cheque No.535697 for Rs.1,50,000/- is dated 20.02.2009. Cheque No.535698 for Rs.1,50,000/- is dated 25.02.2009, Cheque No.535699 for Rs.1,00,000/- is dated 21.03.2009, Cheque No.535700 for Rs.1,00,000/- is dated 20.03.2009, totalling Rs. 5,00,000/-. All the cheques were issued between 20.02.2009 and 21.03.2009. Cheque No.535697 for Rs.1,50,000/- is dated 20.02.2009. Cheque No.535698 for Rs.1,50,000/- is dated 25.02.2009, Cheque No.535699 for Rs.1,00,000/- is dated 21.03.2009, Cheque No.535700 for Rs.1,00,000/- is dated 20.03.2009, totalling Rs. 5,00,000/-. All the cheques were issued between 20.02.2009 and 21.03.2009. The cheque in issue, Ext.A1, bears the number 535620 and is dated 25.02.2011, which is highly improbable as Ext.A1 cheque bears an earlier serial number, but was allegedly issued almost two years later. 15. This tallies with the specific case of the defendant that the cheques which were given to his brother, with whom admittedly the plaintiff had transactions as seen from the evidence of PW1, and with respect to which the N.I. Act cases were filed. No prudent person would have settled the entire disputes, after contest, by paying Rs. 5,00,000/-, the cheque amounts on 04.03.2010, by making payment, and thereafter borrowing money on 07.10.2010, by giving a cheque which was much earlier than the cheques which were the subject matter of the previous N.I.Act prosecutions. No prudent person would have taken a cheque as old as Ext.A1 when he himself had prosecuted cases with respect to the later cheques, as seen from the Ext.B1 complaint. 16. As regards Ext.C2, the report of the handwriting expert, relied on by the trial court, it is trite that an expert is not a witness of fact and his evidence is only of an advisory character. The scientific opinion/evidence, if intelligible, convincing and tested, is a factor for consideration along with the other evidence of the case; the credibility of such a witness depends on the reasons stated in support of the conclusions and the data and materials furnished, which form the basis of his conclusions. His duty ends in furnishing the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The expert in this case deposed that no scientific methods were used for the examination of the handwriting. The report only details the characteristics of the writing in question. At any rate, the same is not useful for considering the acceptability of the transaction set up by the plaintiff. 17. At this juncture, the contention based on the proviso of Section 138 of the N.I. Act is to be considered. The report only details the characteristics of the writing in question. At any rate, the same is not useful for considering the acceptability of the transaction set up by the plaintiff. 17. At this juncture, the contention based on the proviso of Section 138 of the N.I. Act is to be considered. The relevant provision reads as follows: “138. Dishonour of cheque for insufficiency, etc., of funds in the account: …. Provided that nothing contained in this section shall apply unless: (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.” 18. The validity of the cheque at that relevant point in time was six months, and if the date mentioned in Ext.A1 is taken, the period would have expired in August 2011. True, going by the dates in the cheque, the same ought to have been presented within six months, going by the provisions existing then. However, the non-presentation of the cheque to the drawee bank within the period specified would absolve the person issuing the cheque of his criminal liability under Section 138 of the Act, but the same will not relieve the person from paying the cheque amount within the date if a civil action is initiated under the law, provided the transaction is proved by the plaintiff instituting the civil action. The law only mandates the cheque to be presented at the bank on which it is drawn, within the prescribed period, if the drawer is to be held criminally liable. Thus, the contention that the instrument has to be treated as invalid for the purposes of the civil action cannot be countenanced and is accordingly rejected. 19. The plaintiff in a suit based on the Negotiable Instrument Act can also contend about the transaction, and a suit for money on the original cause of action can always be maintained. The entire reasoning of the trial court is based on the statutory presumption under the N.I. Act, and if the instrument itself is invalid, the presumptions under the Act could not have been relied on. Here, the evidence of PW2 also assumes significance. The entire reasoning of the trial court is based on the statutory presumption under the N.I. Act, and if the instrument itself is invalid, the presumptions under the Act could not have been relied on. Here, the evidence of PW2 also assumes significance. In the chief examination, he stated that he saw the plaintiff signing a cheque, but in cross-examination, he clearly said that he had not seen the cheque and that he was not sure whether the defendant had written in the cheque or signed the cheque. Thus, PW2's evidence on the execution of the cheque cannot be accepted. 20. It is also pertinent to note that PW1 admits his transactions with the plaintiff's brother. Thus, on a totality of the circumstances, the case of the defendant that the cheques issued by his brother, who admittedly had absconded due to financial problems, were with the plaintiff and he had misused the same, despite the settlement made by the appellant on 04.03.2010, appears to be more probable. The interested witnesses, PW1 and PW2, cannot be believed to prove the execution or the version set up by the plaintiff. In the aforesaid circumstances, the reasoning of the trial court that nothing prevented the defendant from again borrowing money from the plaintiff after the settlement cannot be sustained. 21. Thus, on an appreciation of the pleadings and the evidence on record, the transaction alleged by the plaintiff cannot be said to be proved. The findings of the trial court holding otherwise cannot be sustained for the reasons indicated above. Accordingly, the appeal is allowed, and the suit will stand dismissed.