The petitioner is the accused in a prosecution under Section 138 of the Negotiable Instruments Act. The signature in the cheque is not disputed. Fairly specific contention appears to have been raised as early as in the reply to the notice of demand that the cheque was handed over as a blank signed cheque as security when the husband of the petitioner/accused availed a loan of Rs.1.75 lakhs from the complainant. It is the fairly specific contention of the petitioner/accused that the cheque was issued as a blank signed cheque as security for due repayment of the said amount of Rs. 1.75 lakhs. It is the further specific contention that the other entries in the cheque were not made by the accused, but by the complainant. That cheque is being mis-utilised to stake a totally false and fanciful claim for Rs.6.25 lakhs, it was contended.

2. Trial has commenced. The complainant's evidence is already over. At the stage of defence evidence the petitioner filed an application that the cheque may be sent to the expert. That prayer was rejected by the learned Magistrate by placing reliance on the decision in Francis v. Pradeep(2004 (2) K.L.T. 1080). In as much as the signature is admitted it is not necessary to send Ext.P-1 cheque for expert opinion, it was held. The precise observations which are relevant which appear in paragraph 3 of the impugned order are as follows:

In the instant case, the accused admitted the signature in Ext.P-1 and hence I hold that it is not necessary to send Ext.P-1 cheque for expert opinion and the accused is at liberty to adduce other evidence to establish that the complainant has no transaction with the accused.

3. The learned counsel for the petitioner submits that the learned Magistrate did not correctly appreciate the dictum in Francis's case (supra). It is not the law that if the signature in the cheque is admitted such a cheque need never be sent to the expert. Here the accused had taken a very specific stand that except the signature, the other entries are not written in her hand. I have been taken through the cross-examination of the complainant/P.W.1 wherein the complainant is shown to have specifically asserted that all the writings were made and the signature were affixed by the petitioner in the presence of the complainant.

4. It is true that it has often been held that admission of signature in the cheque is of crucial and vital significance. But that observation cannot be understood to mean that admission of signature is equivalent or synonymous with admission of execution. Admission of signature does go a long way in the attempt to prove execution of a document. But the nice legal distinction between admission of signature and admission of execution must always be borne in mind. Admission of signature may in an appropriate case persuade the Court to draw permissive presumptions of fact under Section 114 of the Evidence Act. But certainly the right of the accused to contend that a blank signed cheque was mis-utilised by the payee cannot be taken away by such mere admission of signature. Ultimately when the evidence is appreciated the Court shall have to consider whether admission of signature coupled with the other circumstances is sufficient to prove execution. But the right of the accused is to show that only the signature is his/hers and the other entries are made unauthorized by the complainant cannot be taken away. Whether that plea will be accepted or not ultimately is entirely different. It would certainly be myopic to read the dictum in Francis's case (supra) to conclude lightly that in every case where admission of signature is made, the cheque need not be sent to the expert. Such erroneous impression if any certainly deserves to be disabused. A reading of the facts in Francis's case (supra) clearly indicates that, that was a case where there was no reply to the notice of demand. That was also a case where the genuineness of the signature was not challenged when the complainant wa