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2023 (12) TMI 670 - HC - Indian LawsDishonour of Cheque - validity of judgement of acquittal - examination of evidence of DW1 and DW2 which is in the form of affidavit - application filed under Section 391 of Cr.P.C - HELD THAT - The appellate Court has accepted the defence set up by the accused and acquitted the accused. The evidence of DW1 and DW2 which is in the form of affidavit instead of examination-in-chief is not permissible under law, the same cannot be looked into. However, the appellate Court has not observed the same and passed the impugned judgment of acquittal which is not sustainable under law. On these grounds, it is just and proper to remand the case to the trial Court with a direction to provide an opportunity to the accused to adduce his evidence in accordance with law. Application filed under Section 391 of Cr.P.C - HELD THAT - In the affidavit of the complainant he has stated that the appellate Court has allowed the appeal filed by the respondent solely on the ground that the report of the handwriting expert is not proved in accordance with law. In order to prove that particular handwriting expert report, the complainant has not examined the handwriting expert. As a matter of abundant caution, without prejudice to the appeal filed by the appellant before this Court for the purpose of proving the report of handwriting expert, the complainant had filed this present application - The respondent has not filed any objection to this application. Considering the facts and circumstances of the case since, this Court has opined that the trial Court has committed an error in receiving the defence evidence by way of affidavit, it is just and proper to provide an opportunity to the complainant to examine the handwriting expert as sought for in this application. Appeal allowed.
Issues Involved:
The appeal against the judgment of acquittal under Section 138 of the Negotiable Instruments Act, 1881. Summary: The appellant/complainant appealed against the acquittal of the accused by the II Additional District and Sessions Judge. The complaint was regarding the dishonour of a cheque for Rs.72,000 issued by the accused. The trial Court convicted the accused, but the appellate Court acquitted the accused. The appellant contended that the appellate Court failed to consider the statutory presumption under Section 139 of the Act and disregarded crucial evidence, including the report of a finger print expert. The appellant also filed an application under Section 391 of Cr.P.C to examine a handwriting expert. The respondent did not present any arguments. Consideration of Issues: 1) The appellant made a case to interfere with the judgment of acquittal by the appellate Court. 2) The appellant sought permission under Section 391 of Cr.P.C to examine a handwriting expert. 3) The final order was to allow the appeal, set aside the judgments of the appellate and trial Courts, and remand the case for further proceedings. Detailed Analysis: The complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, concerning the dishonour of a cheque issued by the accused. The appellate Court accepted the defence evidence in the form of affidavits from DW1 and DW2, contrary to the Act's provisions. Citing legal precedents, it was determined that such evidence was impermissible. Therefore, the case was remanded to the trial Court for proper examination of evidence. Regarding the application under Section 391 of Cr.P.C, the appellant sought to prove a handwriting expert report not examined during the trial. As the respondent did not object, the application was allowed. The trial Court was directed to provide an opportunity for the complainant to present the handwriting expert's evidence and any additional evidence deemed necessary. In conclusion, the appeal was allowed, and both the appellate and trial Court judgments were set aside. The case was remitted to the trial Court for further proceedings, including the examination of the handwriting expert and additional evidence. The trial Court was instructed to expedite the case's disposal within six months from the accused's appearance. The judgment was to be sent promptly to the trial Court for action.
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