IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 996 of 2011() 1. SANTHI.C., SANTHI BHAVAN, T.C.80/772, Petitioner Vs 1. MARY SHERLY, PCM DY. DIRECT OFFICE, Respondent 2. STATE OF KERALA, REPRESENTED BY THE For Petitioner :SRI.M.SREEKUMAR For Respondent : No Appearance The Hon'ble MRS. Justice K.HEMA Dated :30/06/2011 O R D E R C.R K.HEMA, J. Crl.Appeal No. 996 of 2011 Dated this 30th day of June, 2011 . JUDGMENT
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 Exts.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 12 of the impugned order:
"Accused is not admitting either the signature in Ext.P1 or the execution of Ext.P1. So, it is the duty of the complainant to prove the execution of Ext.P1. Only when the execution of Ext.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 Ext.P1 cheque was given by the accused. It will not prove the execution of the Ext.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 Ext.P1 cheque was executed by the accused. There is absolutely no other evidence to prove the execution of Ext.P1. So, the execution of Ext.P1 is not proved and the offence u/s 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 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 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 main factor to be proved by complainant to establish guilt of accused under Section 138 of the Act is that accused has "drawn" the cheque.
7. The expressions "draw" or "drawn" is not defined in the Act. Section 7 defines "drawer" thus: "maker of a cheque is called the drawer". So, a person who "makes" the cheque is the drawer and the corollary follows that "draw" means, "to make a cheque". As per Oxford Advanced Learner's Dictionary, 7th Edition, the word, "make" means "to create or prepare something by combining materials or putting parts together or to write, create or prepare something". As per Black's Law Dictionary, Eighth Edition, "draw" means, "to create and sign; to prepare and frame (a legal document).
8. Thus, a person can be said to have "drawn" a cheque, if he has made, prepared or created a "cheque". A cheque is an instrument which is created, in conformity with the requirements of Section 6 read with Section 5 of the Negotiable Instrument Act. A reading of section 5 and 6 of the Act shows that a cheque consists of mainly, two parts. One is, an unconditional order in writing directing the banker to pay a certain sum of money only, or to the order of, a certain person or to the bearer of the cheque. The second part is the signature of the drawer.
9. Therefore, if prosecution proves that accused has made or prepared or created a cheque, which contains an order in writing, under his signature, directing the banker to pay a certain sum of money only to the payee or the bearer or to the order of a certain person, he can be said to have "drawn" the cheque. Such "drawing" is also referred to as "execution" as a legal synonym by various courts and the Bar. Therefore, absence of word "execution" in section 138 is of no consequence. It is also not an excuse not to prove execution/drawing in a prosecution under Section 138 of the Act.
10. The fact that accused has "drawn" the cheque, as stated above can be proved by any known method recognised by law. The mere production of a cheque or marking the same as an exhibit in a case however, will not prove that the cheque is "drawn" by the accused. The factum of drawing or execution of cheque has to be proved by evidence of person or persons who can vouchsafe for the truth of the facts in issue. It can be proved by direct or circumstantial evidence, which is admissible in law. This proposition will be clear from what Supreme Court stated in Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745, at page 751 :
"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue".
11. Like any other document, mere production and marking of cheque may only prove that a cheque which contains an order in writing and a signature has come into existence. But, it will not further prove that it is created , drawn or executed by accused. Ordinarily, execution of a document is established by proving the handwriting and signature in the document, under Section 67 of the Evidence Act. It is primarily proved by examining the person who executed or created the document by writing and signing in the same. When such examination is not possible, execution can be proved by examining a person who saw the document being written and signed. In the absence of direct evidence relating to the writing and signature in the document, execution may be proved by examining a person who is qualified and competent to express his opinion, as to the handwriting and signature, by acquaintance or otherwise.
12. The person who is stated to have received the document, may also establish his acquaintance with the handwriting and signature and his competence to identify the writing and signature of the person who executed the document and thereby prove execution of the document. There are also certain other modes of proof of documents. The evidence of a handwriting expert under Section 45 of the Act may be obtained to prove that the authorship of writing and signature in the document. The court may also reach a conclusion on the authorship of the handwriting and signature by comparison, as envisaged under Section 73 of the Evidence Act. However, the only caution is, the court must be find it safe to act upon such evidence, before it is accepted. In S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596, at page 616, Supreme Court held thus: :
"The ordinary method of proving a document is by calling as a witness the person who had executed the document or saw it being executed or signed or is otherwise qualified and competent to express his opinion as to the handwriting. There are some other modes of proof of documents also as by comparison of the handwriting as envisaged under Section 73 of the Evidence Act or through the evidence of a handwriting expert under Section 45 of the Act, besides by the admission of the person against whom the document is intended to be used. The receiver of the document, on establishing his acquaintance with the handwriting of the person and competence to identify the writing with which he is familiar, may also prove a document. These modes are legitimate methods of proving documents but before they can be accepted they must bear sufficient strength to carry conviction.
13. If the complainant has seen the accused making or drawing a cheque, by writing in the cheque and signing the same, as required in Section 5 and 6 of the Act, such person can give direct evidence relating to such writing and affixure of signature and prove that accused has drawn the cheque. If complainant is not an eye witness to the drawing and if there is any other eye witness, such witness can be examined to prove drawing of the cheque by accused. In cases in which, there is no eye witness to drawing of cheque, prosecution can adduce circumstantial evidence to prove drawing of cheque by accused.
14. It has also to be borne in mind that there may be cases in which accused would not by himself write in the cheque but, he would have caused the cheque to be filled up by some other person. In such cases, the person who actually wrote in the cheque can be examined to prove that he filled up the cheque, under instruction of accused or at his instance. In cases in which, even such evidence is also not available, prosecution can establish execution/drawing by placing circumstantial evidence either oral or documentary before court, from which, the court can draw an inference whether accused has drawn the cheque or not.
15. 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.
16. At any rate, no universal rule can be laid down, what are the various circumstances to be proved to establish drawing of cheque by accused, in the absence of direct evidence. It depends on facts of each case. The court shall consider whether each of the circumstances is proved by prosecution, as per law and whether those proved circumstances lead to an irresistible conclusion that the cheque was drawn by the accused, as alleged by prosecution.
17. In cases in which only circumstantial evidence is produced before court to prove drawing of cheque, court shall follow the mode adopted for appreciation of circumstantial evidence, to enter a finding whether cheque is drawn by accused, as alleged by prosecution. If any circumstance or circumstances proved in the case can be explained on any hypothesis which is inconsistent with the assertion of drawing of cheque by accused, accused cannot be said to have drawn the cheque.
18. Whether the cheque was handed over or delivered to complainant by accused and whether it was drawn by accused are independent facts, which require independent proof. The mere production of the cheque in court will not prove either of the above facts. It seems from the records in various appeals involving offence under Section 138 of the Act that most of the complaints do not contain even the relevant facts. Neither the complainant nor the witnesses are made to speak the relevant facts in box. Everything seems to be taken for granted. This case also falls under that category.
19. The cases are often proceeded with, as though mere production of cheque proves all the relevant facts which prosecution must establish in a prosecution under Section 138 of the Act. This approach is not a correct. For a successful prosecution of offence under Section 138 of the Act, complainant must allege and 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.
20. The court must be satisfied from the allegations in the complaint and from the evidence adduced that the cheque was made, prepared or created by accused. The court must be convinced that the order in writing which is found in the cheque was made by accused himself or by some other person at the instance of accused or under his instructions. Even if such other person cannot be identified or examined, complainant can still prove execution by circumstantial evidence. There must also be satisfactory evidence to show that accused himself signed the cheque. Then alone, it can be said that accused has drawn the cheque.
21. In this case, there is no allegation or proof of the fact that the cheque was "drawn" or "executed" by accused. The only fact alleged in complaint and stated in evidence by the sole witness, PW1 is that accused "gave" the cheque to complainant. From such evidence alone, it cannot be concluded that the cheque was "drawn" by accused. The trial court rightly acquitted accused, in the absence of proof of "drawing" of the cheque, which is the most essential ingredient of the offence under Section 138 of the Act.
22. Learned Magistrate rightly held that "execution" is different from "issuance" of cheque. "Issue" means, to "give something to somebody". Issuance of cheque does not mean drawing of cheque. I fully agree with the learned Magistrate that issuance and execution are different acts. Proof of issuance or giving of cheque by accused to complainant alone will not suffice to constitute offence under Section 138 of the Act.
23. Learned counsel for appellant was not able to satisfy this court that impugned order or findings therein suffer from any perversity, illegality, error or infirmity which calls for interference. In the above circumstances, I do not find any ground to admit this appeal.
This appeal is dismissed.
K.HEMA, JUDGE.