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Issues: Whether, in a prosecution under Section 138 of the Negotiable Instruments Act, 1881, the complainant must prove that the cheque was drawn or executed by the accused, and whether proof of mere issuance or handing over of a signed blank cheque is sufficient to sustain conviction.
Analysis: Section 138 is attracted only when the cheque is shown to have been drawn by the accused. A cheque is drawn when it is made, prepared or created in the form required by Sections 6 and 7 of the Negotiable Instruments Act, 1881, including the writing/order and the drawer's signature. Mere production of the cheque, or proof that a signed blank cheque leaf was handed over, does not by itself prove drawing or execution. Such fact may be proved by direct evidence, circumstantial evidence, or other legally admissible modes, including proof of handwriting and signature under the Indian Evidence Act, 1872, but the complainant must still establish the essential fact that the cheque was actually drawn by the accused.
Conclusion: Proof of mere issuance or delivery of a signed blank cheque is insufficient; the complainant must prove drawing or execution of the cheque to attract Section 138.
Final Conclusion: The acquittal was upheld because the essential ingredient of drawing or execution of the cheque was not proved.
Ratio Decidendi: In a prosecution under Section 138 of the Negotiable Instruments Act, 1881, the complainant must prove, by admissible evidence, that the cheque was drawn by the accused and that mere possession or issuance of a signed blank cheque does not establish that ingredient.
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