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TMI Blog2018 (8) TMI 1406X X X X Extracts X X X X X X X X Extracts X X X X ..... Instrument Act. It would also be appropriate to mention that virtually no such reply has been filed by the respondent-accused. He has not asked any single question to the complainant, at the time of his cross-examining regarding Ex.D/2, nor he confronted the same. In the present case, there is no supportive evidence and when the accused/respondent did not disclose document Ex.D/2 till the same was filed at the defence stage. No reasonable explanation was offered to explain why the document was not produced or pleaded earlier. It would be unsafe to exercise the power of discretion in favour of the respondent-accused, whereas the hand writing expert examined by the complainant has clearly indicated and opined that Ex.D-2 receipt do not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appropriate notice and within the prescribed time, filed the criminal complaint case under Section 138 of the Negotiable of Instrument Act. 3. Learned J.M.F.C. by order dated 09.11.2009 dismissed the complaint holding that the applicant/complainant failed to prove that through the cheque Ex.D/1 of ₹ 1,50,000/- was executed by the respondent-accused, but the cheque amount was paid to the complainant/applicant by receipt Ex.D/2. Subsequently, Criminal Miscellaneous Petition No.9389/2013 was filed and vide order dated 04.09.2013, the case was remitted to the trial Court and the order dated 09.11.2009 was set aside and directed to examine the hand writing expert and then to pass judgment afresh. Therefore, learned J.M.F.C, Jabalpur s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd non-payment of the amount has been proved and not disputed. The only contention of the respondent/accused was that the respondent has paid the cheque amount to the complainant. 6. Learned appellate Court has also failed to appreciate the evidence of the complainant witnesses, but believed the hand writing expert examined by the respondent4 accused, whereas opinion of hand writing experts are merely opinion and not the conclusive proof. 7. Per contra, learned counsel for the respondent-accused argued that the hand writing expert report was rightly considered by the appellate Court and Ex.D/2, the receipt by which the respondent-accused succeeded in proving refund of amount ₹ 1,50,000/- to the complainant. Therefore, the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t asked any single question to the complainant, at the time of his cross-examining regarding Ex.D/2, nor he confronted the same. Subsequently, in the examination of accused also the respondent-accused has not taken the plea that he has refunded ₹ 1,50,000/- by obtaining Ex.D/2 receipt allegedly issued by the complainant-applicant. It is also to be noted that the complainant-applicant has examined the hand writing expert and the Ex.D/2 document has been held to be not signed by the complainant. 11. The evidence of the hand writing expert, unlike that of a finger print expert is generally of a frail character and its fallibilities have quite often been noticed. The Court should, therefore, be wary of attaching too much weight to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same was filed at the defence stage. No reasonable explanation was offered to explain why the document was not produced or pleaded earlier. It would be unsafe to exercise the power of discretion in favour of the respondent-accused, whereas the hand writing expert examined by the complainant has clearly indicated and opined that Ex.D-2 receipt do not contain the signature of the complainant. The circumstances is highly tilted to support this view. In the case of Ramji Dayawala Sons Pvt. Ltd. Vs. Invest Import, AIR 1981 SC 2085 , the Supreme Court has held that :- Proof of handwriting by an expert is no proof of the facts in the document. Proof of handwriting is not tantamount to correctness of contents. 13. In such circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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