IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 1-2-2011
CORAM
THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI
CRL.O.P.No.27211 of 2010
and M.P.Nos.1 and 2 of 2010
A. Devaraj ..Petitioner
vs
Rajammal ..Respondent
Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein.
For petitioner : Mr.N. Sudharsan
For respondent : Mr.P. Ananda Kumar
ORDER
The petition is filed seeking a direction to set aside the order dated 10.11.2009 made in Crl.R.C.No.37/2008 by the learned Additional District and Sessions Judge, Gopichettypalayam and confirming the order passed by the learned Judicial Magistrate, Sathyamangalam in CMP No.3579 of 2007 in C.C.No.595 of 2004 dated 2.5.2008.
2. Petitioner is the accused in C.C No.595 of 2004 pending on the file of Judicial Magistrate, Sathyamangalam, Erode. The said proceedings was initiated on a private complaint lodged by the respondent for an offence under Sec.138 r/w 142 of Negotiable Instruments Act (hereinafter referred to as "Act").
3. Pending proceedings, the petitioner has filed CMP No.3579 of 2007 under Sec.45 of the Indian Evidence Act seeking for an order to send the cheque to the expert to determine the "age of the ink" found in the cheque. It was opposed by the complainant. The learned Judicial Magistrate relied on a decision reported in 2008 (1) CTC 496 (S.Gopal vs P. Balachandran), wherein it is held that there is no scientific facility to determine the age of the ink. Consequently, the learned Magistrate dismissed the application.
4. The petitioner has filed a revision petition in Crl.R.C.No.37 of 2008 before the learned Additional District and Sessions Judge, Gopichettipalayam. The learned Additional District and Sessions Judge (Fast Track Court II), after considering the points, concurred with the learned Judicial Magistrate and dismissed the revision. Aggrieved by which, the accused is before this Court under Sec.482 Cr.P.C.
5. Mr.N. Sudharsan, learned counsel for the petitioner drew our attention to an order passed by this court on 2.11.2010 in CRP (PD) No. 1475 of 2010, wherein, His Lordship R.S. Ramanathan J. observed as follows:
"6. It is seen from the judgment referred supra, the learned Judge after getting opinion from the Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu came to the conclusion that no such facility is available in the Forensic Science Department, Government of Tamil Nadu and also on the basis of the opinion expressed by the Assistant Director held that the age of the ink cannot be found out. Now the revision petitioner has produced a brochure downloaded from the Central Forensic Science Laboratories, Hyderabad Website wherein it has been stated that they are undertaking the work of determining the age of the ink. Further, it is seen from the letter written from the office of Government Examiner of Questioned Documents Directorate of Forensic Science, Hyderabad, the age of the ink can be ascertained by comparing it with the admitted signature of the same period and at the same time it has been stated that there is no foolproof method by which the exact age of the writing/signature can be determined or authenticated. However, with a view to give fair trial to the revision petitioner and having regard to the particulars available from the Website of Central Forensic Science Laboratory, Hyderabad, the prayer for the revision petitioner can be considered and the document can be sent to Central Directorate of Forensic Science in the office of Government Examiner of Questioned Documents. Further, the revision petitioner should also send the admitted signature of the first defendant alleged to have been written during the relevant period during which the disputed document was also signed.
6. He also relied on a decision reported in 2007 (1) Crimes 106 (SC), (Kalyani Baskar vs M.S. Sampornam), wherein the Apex Court has held as follows:
"Where accused in a cheque bouncing case prayed to Magistrate to send cheque in question for examination by handwriting expert to ascertain genuineness of signatures, as a fair trial request should have been allowed in exercise of power u/s 243(2) Cr.P.C"
7. On the contrary, Mr.Anandakumar, the learned counsel for the respondent submitted that the alleged transaction took place in the year 2004 and the accused has chosen to file an application only in the year 2007 and therefore, at the belated stage, the application cannot be entertained and it is only a delaying tactics by the accused petitioner.
8. The learned counsel relied on a decision reported in 2010 1 CTC 424 (R. Jagadeesan vs N. Ayyasamy and another) , wherein this Court has held that finding the age of the writing in a document is only futile, since the Head of the Department of Forensic Science at Chennai had stated that there is no scientific method available anywhere in this State to scientifically assess the age of any writing.
9. Heard and perused the materials available on record.
10. The petitioner has invoked Sec.45 of Indian Evidence Act contending that the cheque was not issued to the complainant but had been issued to the brother of the complainant during 1998 and 1999 and to prove that the writings in the cheque do not belong to the year 2004 as dated in the cheque, the age of the ink has to be determined.
11. The learned Judicial Magistrate as well as the revision authority had relied on the decision reported in 2008 (1) CTC 496 (S.Gopal vs P. Balachandran) (cited supra) and has also relied on a decision reported in 2010 1 CTC 424 (R. Jagadeesan vs N. Ayyasamy and another) (cited supra), wherein it is held that there is no facility available to determine the age of the ink. However, another learned Single Judge of this court has now held that the Central Forensic Science Laboratory at Hyderabad has the facility to ascertain the age of the ink.
12. In my considered opinion, the latest judgment of the learned Single Judge of this Court in CRP (PD) NO.1475 of 2010 is not a contradictory judgment to the earlier judgment of the learned Single judge in the case of R. Jagadeesan vs N. Ayyasamy and another, reported in 2010 (1) CTC 424. Hon'ble R.S. Ramanathan J. has differentiated the earlier judgment of Hon'ble S. Nagamuthu J, and has ordered sending the document to be examined by the CFSL, Hyderabad as they claim the facility is available.
13. Since the learned Magistrate has dismissed the application based on the earlier judgment, I am of the considered view that when there is facility available, a fair trial requires that a chance must be given to the accused/petitioner as he has taken a definite stand that the cheque was issued to a different person in the year 1998-1999, which has been used by the complainant in the year 2004. However, as observed in the order dated 2.11.2010 in CRP (PD) No.1475 of 2010, an admitted signature of the petitioner of the same year should also be sent for comparison.
14. Therefore, the criminal original petition is allowed and the order passed by the learned Additional District and Sessions Judge, Gopichettypalayam in Crl.R.C.No.37/2008 dated 10.11.2009 and learned Judicial Magistrate, Sathyamangalam in CMP No.3579 of 2007 in C.C.No.595 of 2004 dated 2.5.2008 are set aside.
15. The revision petitioner is directed to submit his admitted signature as stated above within a period of two weeks from the date of receipt of a copy of this order before the lower court. The lower court is directed to send both the documents to the Central Forensic Science Laboratory, Directorate of Forensic Science as stated above. The lower court is directed to fix the remuneration to the Advocate Commissioner and also for the expenses for comparison. If the revision petitioner fails to produce the admitted signature for comparison as stated above within the stipulated period, the revision petitioner is not entitled to ask for sending the documents for comparison. Consequently, the connected MPs are closed.
sr
To
1. Additional District and Sessions Judge, Gopichettypalayam
2. The Judicial Magistrate,
Sathyamangalam
