RAMACHANDRAN S. Vs. B. BHANUVIKRAMAN NAIR

JUDGEMENT

(1.) The appellant and the first respondent were the complainant and the accused respectively in ST No. 290/2002 on the file of the Judicial Magistrate of the First Class - II, Thiruvananthapuram. The latter was prosecuted for the offence under S.138 of the Negotiable Instruments Act. The appellant's case was that on 05/07/2000 the first respondent borrowed from him Rs.1,70,000.00 and to discharge the liability he issued Ext P1 cheque dated 05/12/2000; on presentation it was returned dishonoured for want of sufficient fund in the account and in spite of demand by notice he failed to pay the amount. The first respondent was an employee of the Food Corporation of India. His defence was that he and two colleagues, one of whom was one Vilas Kumar, borrowed certain amounts from a society and they were sureties for one another; as security for the loan each of them issued a signed blank cheque. Thereafter, the first respondent was transferred to another place. He paid back the loan. The creditor society handed over to Vilas Kumar the signed blank cheque the first respondent had given as security. A dispute arose between the appellant and Vilas Kumar and the former committed theft of the first respondent's signed blank cheque and this is the one relied on by the appellant in this case. For various reasons the Trial Court acquitted the first respondent. This is challenged.

(2.) Heard the learned counsel for the appellant and the first respondent.

(3.) In a complaint filed under S.142 of the Negotiable Instruments Act it is essential for the complainant to prove that the accused executed the cheque relied on by him. Learned counsel for the appellant submits that the admission of the first respondent that Ext P1 cheque bears his signature is sufficient to prove its execution. It is well settled that an admission of a party should be read as a whole. What the first respondent admitted is not execution of the cheque, but signing a blank cheque leaf. There is no admission that the first respondent received any amount from the appellant or that the first respondent issued the cheque to the appellant. So the appellant was bound to adduce evidence to prove execution of the cheque.