IMPORTANT POINT
Simply because the cheque contained the signature of the accused, it cannot be said that the cheque was drawn by the accused as contemplated by Section 138 of the Negotiable Instruments Act.

V.K. Mohanan, J.—The appellant herein is the complainant at C.C. No.297 of 1996 on the files of the Judicial First Class Magistrate Court-II, Aluva which is a case instituted upon a private complaint for an offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to for short as ‘the N.I. Act’ only) As per the judgments dated 19.9.1998 in C.C. No.297 of 1996 of the Trial Court, the accused was found guilty under Section 138 of the N.I. Act and he was sentenced to undergo simple imprisonment for six months. Considering the above conviction and sentence, the accused preferred an appeal as Crl. Appeal No.5 of 1999 (originally it was as numbered as Crl. A. No.387 /98 of the Sessions Court, Ernakulam). As per the judgment dated 1.6.2000 on Crl. Appeal No.5 of 1999, the Additional Sessions Judge, North Paravur allowed the appeal setting aside the conviction and sentence of the Trial Court. Challenging the above order of the lower Appellate Court, the complainant initially filed Crl. M.C. No.4122 of 2000 for leave of this Court which was granted on 11.8.2000 and thus, this appeal is preferred against the judgment of the lower Appellate Court.

2. The case of the appellant/complainant is that the accused borrowed a sum of Rs. 2 lacs from the complainant promising to repay the same amount on demand for which Ext. P1 cheque dated 10.11.1995 was issued. The cheque was drawn from the account maintained by the accused in the Angamaly Branch of Federal Bank Limited. On presentation of the cheque for encashment, the same was returned on 12.12.1995 for the reason ‘funds insufficient’. Consequently, the complainant had caused to send a lawyer notice on 22.12.1995 which was received by the accused. Then the accused sent a reply denying the transaction and according to the complainant, it was only a false allegation and contention. Thus, according to the complainant, though a statutory notice was issued, no payment was effected with the statutory period and hence the accused has committed the offence punishable under Section 138 of the N.I. Act. Therefore, he approached the Trial Court by filing complaint under Section 138 of the Act.

3. During trial, PWs1 to 3 were examined as prosecution witnesses and Exts. P1 to P7 were marked as documentary evidence on the side of the complainant. On the side of defence, DWs. 1 and 2 were examined and Exts. D1 and D2 were marked as documentary evidence. After appreciation of the evidence and materials on records, the Trial Court was of the opinion that Ext. P1 cheque was issued in discharge of the debt, but the same was returned for want of sufficient funds and the complainant had complied with all legal formalities and therefore, it was found that the accused is guilty of the offence under Section 138 of the N.I. Act.

4. On appeal, at the instance of the accused, the lower Appellate Court had found that the complainant had miserably failed to prove the passing of consideration and merely because of the admission of signature in cheque, it could not be said that the execution of cheque was proved. Relying upon certain decisions, the lower Appellate Court had held that though the accused had admitted his signature in the cheque, in all other respect it was a blank cheque, and what was admitted was the signature alone and thus, that would amount to denial of execution of cheque. In support of the above conclusion, the lower Appellate Court had relied upon certain materials which are available on record. On analysis and application of Section 118 (a) of the N.I. Act, in the facts and circumstances of the case, the lower Appellate Court had come to a conclusion that the appellant/complainant had failed to discharge the initial burden regarding the execution of the cheque and therefore, the presumption under Section 118 (a) of the N.I. Act was not available to him. Further, on an appreciation of the evidence and on the basis of materials on record, the lower Appellate Court had he