Madhya Pradesh High Court
Nemchandra Jain vs Vardhman Jain on 7 August, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1 CRA-4703-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 7 th OF AUGUST, 2024
CRIMINAL APPEAL No. 4703 of 2018
NEMCHANDRA JAIN
Versus
VARDHMAN JAIN
Appearance:
Mr. Siddharth Narula, learned counsel for the appellant.
Shri Ram Prasad Khare, learned counsel for the respondent..
JUDGMENT
Leave Granted
With the consent of the learned counsel for the parties, heard finally at motion
stage.
2. This appeal has been filed by the appellant/complainant under Section 378 (4)
of Cr.P.C. against judgment dated 05.07.2016 passed in Complaint Case No.8525/2023
by learned JMFC, Jabalpur, whereby respondent has been acquitted of offence under
Section 138 of the Negotiable Instruments Act, 1881.
3. Learned counsel for the appellant/complainant, after referring to para 14 of the
trial Court's judgment, submits that trial Court has itself compared the handwriting of
cheque (Ex.P/1. It should not have done so. Trial Court should have examined the
handwriting expert for the same. With respect to above, learned counsel for the
appellant has relied upon L.C. Trading Company Vs. Manish Mishra, (2010) 93 AIC
838 and Muddasani Sarojana Vs. Muddasani Venkat Narsaiah and Ors, (2007) 50 AIC
813. It is also urged that trial Court has compared the handwriting of Cheque (Ex.P/1)
at the time of judgment. Therefore, appellant could not get an opportunity for
examining the handwriting expert. Learned Counsel for the appellant has also filed an
2 CRA-4703-2018
application IA No.11421/2021 for remanding the case back to the trial Court so that
handwriting expert can be examined with respect to interpolation in the Cheque
(Ex.P/1). On above grounds, it is prayed that the appeal filed by the appellant be
allowed and impugned judgment be set aside and case be remanded back to the trial
Court for examining handwriting expert and thereafter, decide the case afresh on
merits. Alternately, it is also prayed that appeal be allowed in t o t o with all
consequential reliefs.
4. Learned counsel for the respondent, after referring to cheque (Ex.P/1), submits
that therein in the date column, year 2010 has been changed to 2012. It is also urged
that respondent took a sum of Rs.10 Lacs from the appellant in the year, 2010.
Thereafter, respondent has deposited Rs.5 Lacs in the account of appellant and Rs.5
Lacs on the account of appellant's daughter. Present case has been filed after misusing
cheque (Ex.P/1). It is also urged that if respondent did not deposit the aforesaid amount
in the account of appellant and appellant's daughter, then, how the respondent would be
aware that Rs.5 Lacs each has been deposited in the account of appellant and his
daughter. On above grounds, it is urged that there is no illegality or perversity in the
findings recorded by the trial Court and there is no ground to interfere in the same.
Hence, appeal filed by the appellant be dismissed.
5. I have heard learned counsel for the parties and perused the record of the case.
Analysis and Findings:-
6. Perusal of impugned judgment reveals that trial Court has acquitted the
respondent/accused primarily on the ground that there is overwriting/interpolation in
cheque (Ex.P/1) with respect to year and therein, year 2010 has been over written as
2012. Crux of learned counsel for appellant's arguments is that either trial Court should
have itself examined handwriting expert or should have afforded an opportunity to the
appellant to examine handwriting expert with respect to overwriting/interpolation in
cheque (Ex.P/1) with respect to year.
3 CRA-4703-2018
7. Perusal of cross-examination of appellant/complainant as well as
respondent/accused's examination under Section 313 of Cr.P.C. reveals that it is
respondent/accused's defence from very beginning that he had taken loan of Rs.10 Lacs
from appellant/complainant in the year 2010 and cheque Ex.P/1 is of the year 2010 but
it has been misused by interpolating/overwriting in it, i.e. by making year 2010 as year
2012. In view of aforesaid, it cannot be said that appellant\complainant was not aware
that there is dispute with respect to year as mentioned in the cheque (Ex.P/1). Hence, if
appellant had intended/was interested in examining handwriting expert with respect to
interpolation/overwriting in the year as mentioned in the cheque (Ex.P/1), then, he
should have filed an appropriate application before the trial Court for the same but no
such application was filed before the trial Court for examining handwriting expert.
Therefore, now appellant/complainant cannot contend that he was not afforded an
opportunity to examine the handwriting expert.
8. From perusal of Section 67 of Evidence Act as well as LS. Trading Company
(supra) and Muddasani Sarojana (supra), it is evident that there are various modes for
proving handwriting. One of the mode is comparison by Court itself. Perusal of cheque
(Ex.P/1) reveals that therein date "31.12.2012" is written in figure. Figure "2" is
mentioned in month as well as year at two places in the cheque. If figure "2", which is
mentioned at two places in date, is compared, then, it is clearly visible to naked eye
that figure "2" as mentioned in the year is quite different from that figure "2" as
mentioned in the month. It is visible with naked eye that figure "10" of year 2010 has
been overwritten as "12".
9. Respondent/accused's defence is that he had taken loan of Rs.10 Lacs in the
year 2010 and he had repaid the same in the year 2012. In view of para 15 and 16 of
cross-examination of appellant/complainant, above defence of respondent/accused
appears to be probable.
10. Thus, from discussion in the forgoing paras as well as evidence available on
4 CRA-4703-2018
record, it cannot be said that findings recorded by the trial Court are perverse or
contrary to evidence on record or contrary to law. In view of above, no fault can be
found in the findings recorded by the trial Court, especially, in para 14.
11. Hence, in view of discussion in the forgoing paras, in this Court's considered
opinion, no ground is made out for interfering in the findings recorded by the trial
Court.
12. Accordingly, I.A. No.11421/2021 as well as appeal filed by the appellant is
dismissed.
(ACHAL KUMAR PALIWAL)
JUDGE
Hashmi
