The complainant must prove the due and conscious execution of the cheque in question to establish liability under the Negotiable Instruments Act.

P. UBAID, J.

1. The appellant herein is the complainant in C.C 123/2009 of the Judicial First Class Magistrate's Court-II, Alappuzha, and the 1st respondent herein is the accused therein. The complainant brought the said prosecution under section 138 of the Negotiable Instruments Act (for short "the N.I. Act"), on the allegation that a cheque for Rs. 1,34,391/- executed and issued by the accused in discharge of the goods purchased by him from the complainant's firm happened to be bounced due to insufficiency of funds, and in spite of statutory notice, the accused failed to make payment of the cheque amount. The accused appeared before the trial court, and pleaded not guilty when the substance of the accusation was read over and explained to him. The complainant examined PW1 and proved Exts.P1 to P18 documents. The Ext.X1 specimen hand-writings given by the accused were also marked. When examined under Section 313 Cr.P.C, 1973 the accused denied the incriminating circumstances, and projected a defence that he had no transaction with the complainant firm as alleged in the complaint, at the relevant time, and that he had not executed the cheque in question in discharge of any liability. The further defence projected by him is that the Ext.P1 cheque is in fact the cheque leaf given by him as a signed blank cheque to one T.G Lal years back, and the complainant's wife somehow procured the said cheque from the wife of T.G Lal after his death, and brought a false complaint to extract money from him. However, the accused did not adduce any evidence in defence.

2. On an appreciation of the evidence adduced by the complainant, the trial court found that the complainant has failed to prove the execution of the cheque in question and also the transaction, or the liability alleged in the complaint. Accordingly, the learned Magistrate found the accused not guilty and acquitted him under Section 255 (1) Cr.P.C, 1973 by judgment dated 10.3.2010. Aggrieved by the judgment of acquittal, the complainant brought this appeal with the leave this Court.

3. There is no dispute regarding the fact that the Ext.P1 cheque was bounced due to insufficiency of funds. The accused has no case that he had sufficient funds in his account to honour the cheque, or that it was bounced on some other ground. He has also no case that he had made any payment as required in the statutory notice. Thus, the complainant has proved the compliance of all statutory requirements for initiating prosecution under section 138 of the Negotiable Instruments Act. But the question is whether the complainant has succeeded in proving the execution of the cheque in question, and also the transaction involving the liability, in discharge of which, the cheque was issued.

4. The learned counsel for the appellant cited a decision of the Hon'ble Supreme Court in Beena v. Muniyappan [2001 (3) KLT 950 SC]. The said decision is regarding the presumptions under Sections 118 and 139 of the N.I Act. The presumption under Section 118 of the N.I Act that a negotiable instrument is supported by consideration, or the presumption under Section 139 of the N.I Act, that a particular cheque in question was issued in discharge of a legally enforceable liability, will arise only when the cheque in question is either admitted, or its execution is duly proved. In a case where the cheque in question is not admitted or where its execution is not proved, the court cannot apply the presumption under Section 118 or under section 139 of the N.I. Act. So the primary question in a case like this must be whether the complainant has proved the execution of the cheque in question, when its execution is denied by the accused. This Court and also the Hon'ble Supreme Court have well settled that merely because the cheque in question bears the signature of the accused or just because the signature is admitted by the accused, the court cannot find execution against him. Conscious execution of a cheque is a different ma