JUDGMENT
K. Sreedhar Rao, J.
1. The respondent accused is prosecuted for the offence under Section 136 of the Negotiable instruments Act. The accused issued a cheque for Rs. 74,000/- dated 16.3.1998 and another cheque for Rs. 79,600/- dated 13.3.1998 both drawn on Vijaya Bank towards discharge of the loan. On first presentation, the cheques are dishonoured. Bank intimations are marked as Exs.P3 and P4. On the second occasion, both the cheques were presented together for collection. Ex.p8 is the bank intimation of dishonour dated 5.8.1998. Statutory notice is issued on 19.8.1998 by registered post which was received on 24.8.1998. The complaint was presented on 22.9.1998.
2. Per contra, the accused contends that he has not borrowed Rs. 1,53,600/- at all; he had borrowed only Rs. 25,000/- and the complainant had collected two blank signed cheques as security. The loan of Rs. 25,000/- is discharged in full. The complainant has dishonestly fabricated the two cheques as Exs.P1 and P2 to launch false prosecution. The accused also got summoned bank account extract of the complainant to show that when the loan of Rs. 25,000/- was paid by way of cheque, the cheque was not honoured since there were no sufficient funds; the complainant arranged the funds and got the cheque- Ex.P3 passed. The accused has also produced Ex.D1 dated 25.5.1998, receipt for receiving Rs. 9,350/-. The complainant admits the contents of Ex.D1f but contends that the loan of Rs. 25,000/- is distinct from the loan granted under Exs.P1 and P2.
3. On a close perusal, Ex.P1 dated 16.3.1998 is a self-drawn cheque, not a cheque issued in favour of the complainant. The provisions of Section 138, Negotiable instruments Act for convenient reference is extracted hereunder:
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of moneys to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such a person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or with both.
(underlining emphasised by me)
Ex.P1 is a self cheque and not drawn in favour of other person. In that view, the provisions of Section 138, N.I.Act will not attract for the dishonour of a self-drawn cheque.
4. The cheque, Ex.P2 is drawn in favour of the complainant. The admitted receipt of money under Ex.D1 is much earlier to the presentation and dishonour of Ex.P2. The ink found in the signature of the accused on Ex.P2 is distinct from the ink of other writings on the cheque. The complainant states that the amount under Ex.D1 is received and adjusted towards the loan of Rs. 25,000/- granted. The said explanation appears to be unconvincing. If the loan of Rs. 25,000/- was not repaid, the possibility of granting another loan of Rs. 1,53,600/- cannot be believed. It is pertinent to note that Ex.D1 is paid after the cheques Exs. P1 and P2 were dishonoured in the first instance. Even for a moment assuming that there is a recoverable debt or legal liability under Ex.P2, the entire cheque amount cannot be considered as due in view of admission of receipt of Rs. 9,350/- under Ex.D1. in view of the oral and documentary evidence and the discrepent circumstances placed by the accused, the trial court has rightly held that the accused has sufficiently rebutted the presumption and has successfully shown that there exists no debt or legal liability under the cheques in question. In that view, the order of acquittal is sound and proper. The appeal is accordingly dismissed.