1. The appellant and the first respondent were the complainant and the accused respectively in ST No.290/2002 on the file of the Judicial Magistrate of the First Class-II, Thiruvananthapuram. The latter was prosecuted for the offence under Section 138 of the Negotiable Instruments Act. The appellant’s case was that on 5.7.2000 the first respondent borrowed from him Rs. 1,70,000/- and to discharge the liability he issued Ext P1 cheque dated 5.12.2000; on presentation it was returned dishonoured for want of sufficient fund in the account and in spite of demand by notice he failed to pay the amount. The first respondent was an employee of the Food Corporation of India. His defence was that he and two colleagues, one of whom was one Vilas Kumar, borrowed certain amounts from a society and they were sureties for one another; as security for the loan each of them issued a signed blank cheque. Thereafter, the first respondent was transferred to another place. He paid back the loan. The creditor society handed over to Vilas Kumar the signed blank cheque the first respondent had given as security. A dispute arose between the appellant and Vilas Kumar and the former committed theft of the first respondent’s signed blank cheque and this is the one relied on by the appellant in this case. For various reasons the trial court acquitted the first respondent. This is challenged.

2. Heard the learned counsel for the appellant and the first respondent.

3. In a complaint filed under Section 142 of the Negotiable Instruments Act it is essential for the complainant to prove that the accused executed the cheque relied on by him. Learned counsel for the appellant submits that the admission of the first respondent that Ext P1 cheque bears his signature is sufficient to prove its execution. It is well settled that an admission of a party should be read as a whole. What the first respondent admitted is not execution of the cheque, but signing a blank cheque leaf. There is no admission that the first respondent received any amount from the appellant or that the first respondent issued the cheque to the appellant. So the appellant was bound to adduce evidence to prove execution of the cheque.

4. In the proof affidavit filed in lieu of the examination-in-chief of the appellant (PW1) there is not even a whisper about execution of the cheque by the first respondent. But in the cross-examination he stated that the first respondent entered the particulars in the cheque and signed it before him. Later he disclosed that the first respondent only signed the cheque before him. In other words, the cheque was a written up cheque when it was allegedly brought to the appellant. This is not natural. If PW1 had not been corss-examined there would have been no evidence even to prove that the cheque bears the signature of the first respondent. A party should not leave to the cross-examiner proving a fact by suggestion which the former should prove by his evidence. It is very difficult to hold that the appellant has proved execution of the cheque.

5. Assuming that execution of the cheque has been proved, I shall examine whether the first respondent has rebutted the presumption under Section 139 of the Negotiable Instruments Act. In Kundan Lal Rallaram v Custodian Evacuee Property, Bombay (AIR 1961 SC 1316), which was followed by the Supreme Court in M.S. Narayana Menon @ Mani v State of Kerala and another (AIR 2006 SC 3366), it was held that to rebut the presumption it is not necessary for the defendant/accused to adduce any evidence; he may rely on the facts brought out in the evidence of the complainant; he may even rely on the inferences that may be taken from the facts and circumstances of the case or the improbabilities in the case.

6. It was brought out in the cross-examination of appellant (PW1) that he had filed six other cases under Section 142 of the Negotiable Instruments Act between 2001 and 2004. The total amount involved in all the cases was about Rs. S