Reliance on expert handwriting evidence from photocopies is inadequate for acquittal; appellate courts must find compelling reasons to reverse acquittals.

COMMON ORDER:

1. Criminal Revision Case No.372 of 2012 is filed by the accused questioning the concurrent findings of guilt by the Judicial Magistrate of First Class at Siddipet vide judgment in C.C.No.185 of 2004 dated 15.04.2010 and same confirmed by the VI Additional Sessions Judge vide judgment in Criminal Appeal No.51 of 2010 dated 14.02.2012 for the offence under Section 138 of the

Negotiable Instruments Act .

2. Criminal Revision Case No.445 of 2012 is filed by the complainant seeking compensation of Rs.6,40,000/- which is the double the cheque amount and also to award sentence adequately.

3. Briefly, the case of the complainant is that since the accused and the complainant were acquainted with each other, accused obtained loan amount of Rs.3,40,000/- on 03.01.2003 for business purpose. Complainant paid the accused through cheque and accused executed promissory note (Ex.P1) for the said amount on 03.01.2003 itself. Ex.P2 receipt was also executed by the accused.

The accused agreed to repay the amount and accordingly issued cheque for Rs.3,40,000/- under Ex.P3 dated 24.01.2004. The said cheque when presented for clearance on 05.04.2004 was returned unpaid on 06.04.2004 on the ground of ‘insufficient funds’. Legal notice dated 26.04.2004 was issued to the accused informing the return of cheque for payment of the amount covered by the cheque. Having received the legal notice, since amount was not paid, complaint was filed. Prior to filing the complaint, notice Ex.P9 dated 08.05.2004was sent by the accused.

4. Briefly, the defence of the accused is that the cheque was subjected to theft and his signature was forged on the said cheque. Accordingly, accused having taken photocopy of the cheque from Court, sent it for the purpose of hand-writing examination and opinion by an expert. R.W.1 is the said expert, who examined the photocopy of the cheque and gave opinion vide Ex.D1 that the signature on the cheque did not tally with the specimen signature of the accused which was provided to him. Learned trial Judge, having considered the evidence placed on record on both sides, found favour with the defence version of the accused on the basis of

Ex.D1 hand writing expert report and opinion and acquitted the accused.

5. Appeal was preferred by the complainant. Learned Sessions Judge in appeal found that the trial Court has placed reliance on the expert evidence and acquitted the accused when the opinion was given on the basis of examining a photocopy. Such opinion cannot be considered and accordingly reversed the judgment finding favour with the version of the complainant that there was outstanding which is payable to the complainant by the accused.

6. Learned counsel appearing for the accused would submit that the accused had filed petition before the trial Court for sending the original cheque to a Government hand writing expert to examine the signature on the cheque. The said petition which was filed by the accused was allowed by the trial Court. However, the complainant himself has preferred revision against the order of the trial Court directing the cheque to be sent to a hand-writing expert vide Criminal Petition No.5613 of 2007. The said Criminal Petition filed by the complainant was allowed vide order dated 24.03.2009. This Court found that there was a delay of nearly two years in filing the petition by the accused to send it to a Government hand writing expert and that too at the stage of final arguments. The accused was not diligent in ascertaining his rights and accordingly, Criminal Petition was allowed setting aside the order of the learned

Magistrate in sending it to an expert.

7. Learned counsel argued that the complainant himself has questioned the lower Court order and accordingly, original cheque was not sent to the hand writing expert. The said conduct of the complainant in approaching the High Court would reflect that the complainant feared that there would be an adverse opinion by the hand writing expert. For the said reas