2011 (6) TMI 1036 - HC - Indian Laws

Summary

Issues Involved:
1. Proof of execution of the cheque.
2. Distinction between issuance and execution of the cheque.
3. Burden of proof in cases u/s 138 of the Negotiable Instruments Act.

Summary:

1. Proof of Execution of the Cheque:
The appellant filed a complaint u/s 138 of the Negotiable Instruments Act. The trial court acquitted the accused, noting that the accused did not admit the signature or execution of the cheque (Ext. P-1). The court emphasized that the complainant must prove the execution of the cheque for the offence u/s 138 to be established. The appellant argued that the accused admitted execution in the reply notice, but the court found that the accused only admitted to signing a blank cheque, not executing it. The court clarified that a signed blank cheque is not a "cheque" as defined under the Act and does not constitute an admission of execution.

2. Distinction Between Issuance and Execution of the Cheque:
The court explained that the term "execution" is not used in Section 138 of the Act, but the prosecution must prove that the cheque was "drawn" by the accused. The term "draw" means to create and sign a cheque. The court stated that proving the drawing of a cheque involves showing that the accused made, prepared, or created the cheque, including the order in writing and the signature. The court cited various legal sources to support this interpretation and noted that mere production of a cheque does not prove its execution.

3. Burden of Proof in Cases u/s 138 of the Negotiable Instruments Act:
The court highlighted that the prosecution must prove the drawing or execution of the cheque by direct or circumstantial evidence. The complainant must provide evidence that the cheque was created by the accused or under their instructions. The court noted that the mere fact that the cheque was in the complainant's possession is insufficient to prove execution. The court emphasized that each case must be evaluated based on its facts, and the prosecution must prove each circumstance relied upon to establish the drawing of the cheque by the accused.

Conclusion:
The court found that there was no allegation or proof that the cheque was "drawn" or "executed" by the accused. The trial court correctly acquitted the accused due to the lack of proof of drawing the cheque, which is essential for an offence u/s 138 of the Act. The court agreed with the trial court's distinction between issuance and execution, stating that issuance alone does not constitute the offence. The appeal was dismissed as the appellant failed to show any error or illegality in the trial court's findings.