SURESH KAIT, J.

1. At the outset, it is pertinent to mention here that the petitioner has filed the instant Appeal as noted above in the year 2005.

2. The amendment in Section 372 were inserted by Act 5 of the 2009 Section 29 w.e.f 31.12.2009 vide which the right of the aggrieved party accrued to file the Appeal against the acquittal order.

3. Order sheet reveals that vide order dated 14.05.2009, passed by Predecessor Court to the effect that instant matter be treated as L.P.A / Revision.

4. However vide order dated 28.09.2010, it is clarified by another Predecessor Court that leave to Appeal has not been granted.

5. In my view, instant matter has wrongly numbered in the category of Crl. Appeal, whereas the challenged against the acquittal order would have been filed by way of revision only as the instant petition pertains to year, 2005 and the amendments came into force in the year 2009.

6. Therefore, the Registry of this Court is directed to renumber the instant matter in the category of Revision Petition.

7. Coming to the instant case, petitioner has sought to set aside the impugned judgment dated 31.05.2005 passed by ld. Trial Court, whereby the ld. Trial Court has acquitted the respondent from the charges under Section 138 NI Act.

8. The petitioner has taken a ground that ld. Trial Court has failed to appreciate the arguments of the ld. Counsel for the petitioner to the effect that plea of the respondent regarding loss of cheque or theft of cheque is concocted and afterthought, as the respondent was having opportunities to lodge his protest regarding loss / theft of cheque when he came to know about the same.

9. Ld. Counsel for the petitioner has submitted that the pleas taken by the respondent is after thought and in order to create defence in his favour. However, the respondent never chooses to do with the aforesaid acts and ultimately after recording of statement under Section 281 Cr.P.C., he produced a witness in defence as DW-1, the alleged hand-writing expert, and only then for the first time at the state of final arguments on being moving an application for examining the hand-writing expert, which was allowed by the ld. Trial Court, despite being objection taken by the present petitioner.

10. It is further submitted that respondent no. 2 had moved an application to examine the hand-writing expert, only when the criminal complaint filed against the present petitioner with respect to the theft of the above-referred cheque, was dismissed by the trial court and not getting any counter-relief from that complaint. Respondent no. 2 moved an application before the ld. Metropolitan Magistrate for examining hand writing expert in order to create a false defence.

11. The petitioner has taken further ground that ld. Trial Court has wrongly read the provisions of Section 139 of N.I. Act and has wrongly made the petitioner liable to prove his case under the provisions of Section 139 of N.I. Act, the burden of proving the same has been shifted. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of a nature referred to in Section 138 N.I. Act for the discharge, in whole or in part, or any debt or other liability.

12. I note, in post notice evidence, first witness examined by the complainant is CW1, Lal Sahib Mishra, Clerk from Standard Chartered Bank, who proved the statement on account Ex.CW1/P1 and Cheque return register Ex.CW1/P2 on the record. He has denied the suggestion that the respondent / accused had requested them to stop the payment of cheque.]

13. CW2 Ashok Mahajan, Manager, Punjab and Sindh Bank, Krishna Nagar proved the statement on account of the complainant Ex.CW2/A.

14. Petitioner / complainant in his statement as CW3, has reiterated his complaint case. He has stated that while giving the cash loan in question, respondent / accused gave him three post-dated cheques. However, in his cross-examination he has categorically