TMI Blog2023 (12) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... ittal 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 purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e drawn on Canara Bank, Ponnampet vide cheque No.0358106 dated 14.08.2003 for a sum of Rs.72,000/- in favour of the complainant. When the complainant presented the cheque for collection, the said cheque was dishonoured with a endorsement Insufficient fund . Complainant issued legal notice on 21.08.2003 calling upon the accused to pay the cheque amount even though notice was served upon the accused. Accused neither replied for the notice nor paid the cheque amount. Thus, the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 4. After taking cognizance, the trial Court has registered the case against the accused in CC.No.136/2010 for the commission of offence punishable under Section 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1881. Being aggrieved by the impugned judgment of acquittal passed by the appellate Court, the appellant/complainant has preferred this appeal. 8. The learned counsel appearing on behalf of the appellant has submitted his argument that the appellate Court has not properly appreciated the evidence on record in accordance with law and facts. The appellate Court has ignored the provisions of Section 139 of the Negotiable Instruments Act, 1881, though the accused has not remitted the statutory presumption. The appellate Court has failed to consider that the report of finger print expert which is relevant and conclusive being a scientific evidence could not have been ignored by the appellant Court, solely on the ground that finger print ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheque of Rs.72,000/- issued by the accused as per Ex.P1. 12. To prove the defence of accused 2 witnesses were examined as DW1 and DW2. DW1 and DW2 have adduced the evidence instead of examination-in-chief by way of affidavit, which is contrary to the provisions of Section 145 of the Negotiable Instruments Act, 1881. In this regard I have relied on the decisions of M/s. MANDVI CO-OPERATIVE BANK LIMITED v. NIMESH B. THAKORE reported in AIR 2010 SC 1402, wherein at paragraphs 31 and 32 of the judgment, the Hon'ble Supreme Court has observed as under: 31. On this issue, we are afraid that the High Court overreached itself and took a course that amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its own evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well. 13. Further, the Co-ordinate Bench of this Court, in the case of SMT. H.BHAGYA Vs. SMT. R.SAVITHRAMMA reported in 2013(1) KCCR 834, relying upon the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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. Regarding Point Nos.1 and 2 : 15. With regard to the application filed under Section 391 of Cr.P.C is concerned, 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 fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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