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2021 (11) TMI 936 - KARNATAKA HIGH COURTDishonor of Cheque - insufficiency of funds - respondent has submitted that the learned appellate judge was right in dismissing the complaint on the ground that the cheques were not issued by the accused as the complainant failed to establish the issuance of cheques and the features of Negotiable Instruments and he is not entitled for presumption therein - HELD THAT:- There appears to be contradictions in treating the application filed under Section 45 or 43 of the Indian Evidence Act. The trial court has observed in both the cases that application under Section 43 Indian Evidence Act were filed. However, it is stated that the said applications were filed by the accused. Thus, the learned trial judge mis-read the parties who has filed the application under Section 43 of Indian Evidence Act which was in connection with the proof of the signature. The said application came to be allowed by the learned trial judge in both the cases. But the accused has not taken any steps thereafter. Though the application filed by complainant before the trial court was allowed in each case, he failed to prosecute further either in referring the name of the experts or in depositing the commissioner's fee. However, both the complaints came to be allowed in the circumstances and facts of the case by the trial court. However, the appellate court in the appeals finds that the application filed by complainant in both the cases was not followed by him and not complied with the ingredients of the said Section by naming expert or depositing the amount and allowed the appeal by reversing the judgment passed by the learned trial judge and by acquitting the accused. Thus, if the complainant has filed application and the learned trail judge or learned appellate judge ought to have allowed the matter to see the logical end. Even before mentioning the error of the trial court, the appellate court also should have brought to the notice of the parties regarding the lapses. In this connection, both the learned trial court and appellate court have erred in adopting the hasty approach - matters are to be remanded to the trial court with a direction to the complainant to refer the name of the expert and also deposit the commissioner's fee and the required expenditure within 7 days from the first hearing date before the trial court. Petition allowed by way of remand.
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