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2021 (11) TMI 544 - HC - Indian LawsDishonor of Cheque - amount to be repaid under the hire purchase agreement - prosecution under Section 138 of the Negotiable Instruments Act - rebuttal of statutory presumption - HELD THAT:- Though the accused had filed an application for sending Ext.P2 cheque to the forensic expert for verifying the signature and handwriting and though that application was allowed by the court, the forensic laboratory had returned the same without comparison and demanding more documents written by the 2nd respondent/ accused during the same period in order to complete the investigation. However, the 2nd respondent/accused did not produce any further document, as a result of which Ext.P2 cheque was not subjected to any forensic examination - The trial court also found that the 2nd respondent/ accused had no case that the appellant/complainant had obtained the cheque from him by unlawful means and had fabricated his signature and handwritting and that no reply was sent by the 2nd respondent/accused to the statutory notice issued by the appellant/complainant. The trial court, therefore, was of the view that the appellant/complainant was entitled to the benefit of the statutory presumption under Section 139 of the Negotiable Instruments Act and therefore found that Ext.P2 cheque had been issued for discharge of a legally enforceable debt and answered that issue in favour of the appellant/complainant - A reading of the appellate court judgment shows that the appellate court was of the opinion that the signature on the cheque had not been proved to be that of the 2nd respondent/accused herein. In particular, the appellate court noticed that the signatures on Ext.D1, the account opening form and Ext.X1 containing the registration particulars of the vehicle were different from the signature contained in Ext.P2 cheque. This is a case where the 2nd respondent/accused has not denied the fact that he had entered into a hire purchase agreement with the appellant/complainant. He had also not denied the fact that he had failed to repay the instalments of the loan in time - The trial court on an examination of the signatures on various documents concluded that there was a similarity in the admitted signature and the signature contained in the cheque. Of course, the appellate court has by invoking Section 73 of the Evidence Act come to a different conclusion regarding the similarity in the signatures. In the facts of the present case, the transaction between the appellant/complainant and the 2nd respondent/accused has not been disputed. The appellate court also found that there was similarity in the signature on the cheque, the hire purchase agreement and in the registration details maintained with the Motor Vehicles Department. That finding by itself is to establish that the statutory presumption under the Negotiable Instruments Act was available to the appellant/complainant. Therefore, the appellate court went wrong in reversing the conviction and sentence imposed on the 2nd respondent/accused. This appeal is allowed.
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