The complaint filed by the appellant under Sec.138 of the Negotiable Instruments Act failed and Ist respondent/accused was acquitted. Therefore, this appeal.

2. The facts of this case are not in dispute. There was a dealing between the parties in terms of Ext.P6 agreement. Whether the Ist respondent was the dealer of the appellant or agent of the appellant is immaterial when Ext.P6 agreement is admitted.

3. Ext.P6 agreement discloses that the Ist respondent had drawn two cheques in favour of the appellant. One for an amount of Rs.5000/- as deposit and another, cheque No.DLBC 890885, drawn on Dhanalakshmi Bank, Ltd. Palluruthy, the cheque in question. This was a blank cheque. Both the cheques are referred to in Ext.P6 agreement and it is made clear that this blank cheque was towards the liability that may fall due from the Ist respondent. When there was certain dues payable by 1st respondent, the cheque was presented in the bank. It was bounced for want of funds. Statutory notice did not result in payment of the amount. Therefore, the complaint was filed by the appellant.

4. The Court below found that the presumption under Sec. 139 of the Negotiable Instruments Act was not applicable, because the cheque was issued when the accused really not owed the complainant. It was also a blank cheque. That the cheque was issued against an enforceable liability has to be proved by the complainant. The complainant ought to have produced the books of accounts to prove such liability. Thus it was found by the court below that the accused was not guilty of the offence punishable under Sec. 138 of the Negotiable Instruments Act. This finding is challenged in this appeal.

5. The learned counsel for the appellant relied on the decisions of the Apex Court in Anil Kumar Sawney v. Gulshan Rai (1994(1) KLT 111), Beena v. Muniyappan (2001 (3) KLT 950 (SC) and I.C.D.S. LTD. V. Beena Shabeer (2002) (3) KLT 218 (SC)).

6. The decision in Anil Kumar’s case is one in respect of post dated cheque. A post dated cheque is only a Bill of Exchange. The post dated cheque becomes a cheque under the Act on the date mentioned in the cheque. When presented to the bank, if it was not cashed, necessarily a prosecution under section 138 will lie. Admittedly, here the cheque was a blank cheque, not even dated. So the said decision does not have any application.

7. The decision in Beena v. Muniyappan is to the effect that it is the duty of the drawer to prove that the cheque had not been issued to discharge a debt or liability on his part. That also does not have much application to the facts of this case.

8. The decision in I.C.D.S’ case is in respect of a cheque said to be issued in the capacity as a guarantor. The husband of the drawer of a cheque entered into an agreement with M/s. I.C.D.S. Ltd. The drawer of the cheque was the guarantor and the cheque was issued in her capacity as guarantor. The cheque was presented to the bank of the drawer. It was bounced with the remark “insufficient funds”. Prosecution under Sec. 138 was initiated. The drawer invoked sec. 482 of the Criminal Procedure Code for quashing the complaint which was allowed on the ground that it being a cheque from the guarantor it could not be said to have been issued for the purpose of discharging any debt or liability and the complaint under Sec. 138 of the Negotiable Instruments Act, 1881, was maintainable. The matter was taken up by the I.C.D.S. Ltd. to the Apex Court. The Supreme Court held as follows:

10. “The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section starts with the words “Where any cheque”. The above noted three words are of extreme significance, in particular, by reason of the user of the words “any” – the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the high