2018 (8) TMI 1406

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....der Section 138 of the Negotiable Instrument Act has been modified. 2. The complainant/applicant has filed the Criminal Complaint Case No.926/2005 before the J.M.F.C., Jabalpur under Section 138 of the Negotiable Instrument Act alleging that the respondent-accused executed a cheque of Rs. 1,50,000/- on 12.02.2004. The same was presented for enchashment was dishonoured. Thereafter, the complainant-applicant had given 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 Rs. 1,50,000/- was execut....

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....nt the complainant is to receive Rs. 5,000/- after the appeal period is over, as compensation. 5. Aggrieved by this, the applicant has filed this revision on the ground that the order of the appellate Court is perverse and appellate Court erred in believing the receipt Ex.D-2, which was forged one. As per the evidence adduced by the applicant-complainant. It is claimed that execution of the cheque and 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 responden....

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....e debt or liability and that is a rebuttable presumption. 10. It would be appropriate to mention here that the respondent accused did not disclose that he has paid the amount in his reply to the notice issued to the respondent under Section 138 of the Negotiable 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. Subsequently, in the examination of accused also the respondent-accused has not taken the plea that he has refunded Rs. 1,50,000/- by obtaining Ex.D/2 receipt allegedly issued by the complainant-applicant. It is also....

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.... with assistant of the expert come to its own conclusion whether it can safely be held that the two writings are by the same persons. The Court may accept the fact prove only when it has specified by its own observation that it is safe to sought opinion of the expert. 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....