TMI Blog2009 (4) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... on, it is taken for final disposal by consent of the learned Counsel for the appellant and his arguments on merits are heard. Perused the impugned judgment and order of acquittal and also copies of depositions of P.W. 1-the complainant and D.W. 1-the accused which are made available by the learned Counsel for the appellant. 3. Stated in brief the case of the complainant is that the accused, who is known to the complainant since the past six years, borrowed from the complainant a hand loan of Rs. 36,000/- on 10-1-2005 for meeting her urgent necessities and thereafter on 31-7-2005 when the complainant demanded repayment of the said loan amount, the accused issued the cheque for the said amount of Rs. 36,000/- and said cheque, on being pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused. 5. As to the liability of the accused for the offence under Section 138 of the N.I. Act in respect of a cheque issued by him to the complainant as security towards repayment of debt borrowed by him from the complainant there are two decisions of this Court and they are: (i) S.T.P. Limited, Bangalore v. Usha Paints and Decorators, Bangalore and Anr. 2006(5) Kar. L.J. 323; (ii) Dr. B.V. Sampathkumar v. Dr. K.G.V. Lakshmi 2006(3) Kar. L.J. 333 : ILR 2006 Kar. 1730. 6. I have gone through both the said decisions. In first of them i.e., in S.T.P. Limited's case, it is observed that there can be no distinction between the cheque 'issued for repayment' and the one 'issued as security for repayment' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant in the present case. 7. In second of the said decision i.e., in Dr. B.V. Sampathkumar's case, it is observed by this Court that 'a cheque whether issued for repayment of loan or as security makes little difference under Section 139 of the N.I. Act, in the event of its dishonour, legal consequences are same without distinction'. On careful reading of the judgment in the said case, it could be seen that the relevant facts in the said case are not forthcoming from the judgment. Further, the accused therein had not led any evidence rebutting the presumption raised under Section 139 of the N.I. Act. This being so, I am of the considered view that the observation made in the said case are not applicable to the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of which the cheque was given by him (borrower) to the lender as security, is not repaid as agreed, the said cheque will be encashed by him (lender) by presenting it to the Bank. If the borrower does not repay the loan amount to the lender despite such demand being made against him by the lender, then only the lender would become entitled to present the said cheque to the Bank for its encashment. Further, if the said cheque is not honoured for want of funds in the account of the borrower or for any such other valid reason, and if the borrower further fails to comply with the statutory notice issued by the lender pursuant to dishonour of the said cheque, cause of action would accrue to the lender to prosecute the borrower for the offence u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecurity for the repayment, of the alleged loan amount of Rs. 36,000/-. 10. It is the settled principle, as laid down by the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde AIR 2008 SC 1325 : (2008)4 SCC 54 : 2008 AIR SCR 738 that presumption under Section 139 of the Negotiable Instruments Act does not extend to the existence of legally enforceable debt as on the date of the cheque and the existence of such debt is to be proved by the complainant beyond reasonable doubt like any other fact. On perusal of the averments in the complaint, the evidence of P.W. 1 and that of D.W. 1 it is clear that the complainant has failed to establish that she lent the said sum of Rs. 36,000/- to the accused on 10-1-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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