Indian Kanoon - Search engine for Indian Law

14.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 a "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 cannot, be accepted.

17.The prosecution shall however, make clear to Court, each of the circumstance which is relied upon by it, to establish drawing of the cheque by accused. The mere fact that the cheque produced in Court came from possession of complainant alone will not be sufficient to prove execution, even though it may be one of the circumstances. No law allows a Court to presume that the cheque which is produced and marked in Court was handed over or delivered to complainant by accused. The Court, at best, can say that the cheque was in possession of complainant. But, under what circumstances it came to his possession is to be stated by complainant. In the absence of such statement, Court cannot proceed on any assumption that it was handed over to complainant by accused. For a successful prosecution of offence under Section 138 of the Act, complainant must allege and http://www.judis.nic.in prove that the cheque was "drawn" or executed by the accused. In the absence of an allegation in the complaint that the cheque was drawn by the accused and in the absence of proof of such fact, an accused cannot be convicted for offence under Section 138 of the Act.