IMPORTANT POINT
In absence of an allegation in compliant that cheque was drawn by accused and in absence of proof of such fact an accused cannot be convicted for offence under Section 138 of N.I. Act, 1881.

K.Hema, J. — On a complaint filed by appellant before Magistrate court, first respondent stood trial for offence under Section 138 of the Negotiable Instruments Act (‘the Act’ for short). To prove complainant’s case, PW1 was examined and Exs. P1 to P6 were marked. The accused did not adduce any evidence, but took up a contention that he received only a lesser amount from complainant and as security, he handed over a cheque in blank form to complainant. The transaction took place on a different date and not any date alleged by complainant. The blank cheque was misused, to file a false complaint, it is further contended.

2. Learned Magistrate, after consideration of evidence and materials on record, acquitted the accused, mainly on the following observations and findings in paragraphs 11 and 1, 2 of the impugned order:

“Accused is not admitting either the signature in Ex. P1 or the execution of Ext.P1. So, it is the duty of the complainant to prove the execution ofExt. P1. Only when the execution of Ex. P1 is proved, the offence u/s. 138 of the Negotiable Instruments Act will be attracted.

12. The mere allegation made by PW1 is to the effect that Ex. P1 cheque was given by the accused. It will not prove the execution of the Ex. P1 because issuance and execution are different. The term ‘issuance’ is not equivalent to ‘execution’. There is nothing in the testimony of PW1 to the effect that Ex. P1 cheque was executed by the accused. There is absolutely no other evidence to prove the execution of Ex. P1 So, the execution of Ext. P1 is not proved and the offence under Section 138 of the Negotiable Instruments Act is not admitted.”

3. Challenging the order of acquittal, this appeal is filed. When the appeal came up for admission, I heard learned counsel for appellant and he strongly argued that accused admitted execution in the reply notice and hence, the order of acquittal passed on the premise that there is no proof for execution of cheque is illegal. He read out the reply notice in court but it is quite clear from the reply that accused denied execution and specifically contended that a signed blank cheque was handed over by him to appellant, in connection with another transaction.

4. On consideration of the various aspects and provisions of the Act. I am of view that the contention raised by an accused in a prosecution under Section 138 of the Act that he issued a blank signed cheque will not amount to admission of execution of cheque. A signed blank cheque leaf is very often referred to as a blank “cheque”, but, strictly speaking, it is not a “cheque”, as defined under the Act, it can be treated only as “cheque leaf” containing admitted signature of accused. The admission of signature in a cheque leaf alone will not constitute admission of execution of the cheque. The argument that accused admitted “execution” of the cheque in the reply notice etc., cannot therefore, be accepted.

5. Learned counsel for appellant also argued that no where in the Negotiable Instruments Act, it is stated that execution is to be proved by complainant in a case involving offence under Section 138 of the Act. He also argued that what is meant by “execution” is not stated in the Act, but most of the courts insist that complainant must prove execution and accused are illegally acquitted, on the ground that “execution” is not proved. According to learned counsel for appellant, it is illegal to cast any burden on complainant to prove “execution”, in a prosecution for offence under Section 138 of the Act, since the said provision does not even refer to the word, “execution”.

6. True, the expression, “execution” is not used in Section 138 of the Act. A reading of Section 138 of the Act however, shows that to prove the offence under the said section, prosecution shall inevitably prove that the cheque was “drawn” by accused. The only overt act which makes a person liable for the offence under Section 138 of the Act is “drawing” of cheque by him. So, the