TMI Blog2011 (6) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... s not admitting either the signature in Ext. P-1 or the execution of Ext.P-1. So, it is the duty of the complainant to prove the execution of Ext.P-1. Only when the execution of Ext.P-1 is proved, the offence Under Section 138 of the Negotiable Instruments Act will be attracted. 12. The mere allegation made by P.W. 1 is to the effect that Ext. P-1 cheque was given by the accused. It will not prove the execution of the Ext.P-1 because issuance and execution are different. The term 'issuance' is not equivalent to 'execution'. There is nothing in the testimony of P.W. 1 to the effect that Ext. P-1 cheque was executed by the accused. There is absolutely no other evidence to prove the execution of Ext. P-1. So, the execution of Ext. P-1 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake 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 Sections 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 S.C.C. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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