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2023 (12) TMI 670 - KARNATAKA HIGH COURTDishonour 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.
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