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2001 DIGILAW 24 (MAD)

K. Lakshmanan v. S. Kevichandran

2001-01-05

A.D.V.REDDY

body2001
Judgment :- The petitioner/accused in C.C. No. 455 of 1998 on the file of Judicial Magistrate I, Erode has preferred the revision aggrieved against the order passed in Cri.M.P. 4725 of 2000 dated 1-8-2000. 2. The case in brief is as follows : The respondent filed a complaint under section 128 of Negotiable Instruments Act (hereinafter referred to as 'N.I. Act') against the Petitioner. The petitioner has taken a specific stand that he had money transaction with one Shanmugam, father of the complainant during the period 1992 to 1994 and at his request, he issued two blank cheques as security and after the transactions were over, the petitioners demanded for return of the cheques and it was stated that they were displaced and assured to return them as and when traced out. These cheques have been filled up by the complainant to make unlawful gain. All these facts have been specifically mentioned even in the reply notice sent by the petitioner to the complainant, which is marked as Ex. P7. No signed in the blank cheques only 1992 and he never borrowed any money from the respondent/complainant. The complainant was examined as PW. I and according to him the petitioner has signed two cheques in his presence in the year 1998. Hence, the petitioner filed an application under section 45 of the Evidence Act to send the two cheques marked as Exs. P1 and P2 to the handwriting and fingerprint expert at the Government Press. Nasik or to any other expert to the satisfaction of the Court in order as to ascertain the age of the ink of the signatures on each cheques and the age of the ink of the other words written on each cheque. 3. The respondent resisted the application and denied the averments. There is no handwriting and fingerprint expert at Government Press, Nasik. The complaint was filed on 12-6-1998. The petitioner already filed Criminal revision petition and the same was dismissed by this Court with a direction to dispose the matter within two months. The respondent was examined as PW. 1 on 23-7-1999. On 6-6-2000 the evidence on the side of the complainant was closed and it was posted for the examination of the petitioner's witness. The petitioner took time to examine his witness on 8-6-2000, 14-6-2000, 20-6-2000 and an 27-6-2000. The respondent was examined as PW. 1 on 23-7-1999. On 6-6-2000 the evidence on the side of the complainant was closed and it was posted for the examination of the petitioner's witness. The petitioner took time to examine his witness on 8-6-2000, 14-6-2000, 20-6-2000 and an 27-6-2000. Only on the last date, the petitioner filed his list of witness and also filed the present petition. There is no necessity for comparing the age of the ink found in the cheque. The age of the ink also cannot be acertained by any handwriting expert. There is no merit in the application and the intention of the petitioner is only to delay the matter. 4. Learned Magistrate after hearing the parties, dismissed the application and aggrieved against this, the present revision has been filed. 5. Heard the learned counsel of both sides. 6. The points that arise for consideration are : 1. Whether the order passed by the Court below is proper and correct ? 2. To what relief ? 7. Points : The respondent filed a complaint under section 138 of N.I. Act against the petitioner in CC. 455 of 1998 pending on the file of Judicial Magistrate I, Erode. The evidence on the side of the respondent/complainant has been completed. When the case was posted for evidence, the petitioner/accused filed the petition under section 45 of the Evidence Act to send the two cheques marked as Exs. P1 and P2 to the handwriting and finger print expert at Government Press, Nasik or to any other expert to ascertain the age of the ink of the signatures on each cheque and also to note the age of the ink of the other words written on each cheque. Learned counsel for the petitioner contended that the petitioner had issued two blank cheques as security in 1992 and now it has been made use of only in the year 1998. The respondent sent a statutory notice and the petitioner sent a reply, wherein he had specifically mentioned about the issue of signed blank cheques in 1992 and he never borrowed any money from the respondent. 8. The respondent sent a statutory notice and the petitioner sent a reply, wherein he had specifically mentioned about the issue of signed blank cheques in 1992 and he never borrowed any money from the respondent. 8. It is clear from the counter filed by the respondent that after the closure of the evidence of the complainant, four adjournments were given to enable the petitioner to adduce evidence and only thereafter, the petitioner submitted the list of witness and also filed the petition mentioned above. Learned Magistrate in his order stated that there is no expert to determine the age of ink in the cheque and even if there is any difference, the same can be established by the petitioner through oral, documentary and circumstantial evidence and it was intended to delay the proceedings. 9. Learned counsel for the petitioner relied on the decision reported in Shashi Kumar Banerjee v. Subodh Kumar, AIR 1964 SC 529 relating to Section 40 of Evidence Act, wherein it was observed that the expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see it is corroborated either by clear direct evidence or by circumstantial evidence. Reliance is also placed upon Uppu Jhansi Lakshmi Bai v. J. Venkateswara Rao, AIR 1994 Andh Pra 90 that "Opinion of handwriting expert - Not totally irrelevant factor for adjudication of dispute - His opinion can be sought for determining age of dispute handwriting. There it no dispute about the principle enunciated in these decisions. Now, at a belated stage, the petitioner has come forward with the application that the impugned documents have to be sent to the expert to find out the age of the ink relating to the signature as well as the writing in the cheque. 10. Learned counsel for the respondent contended that the petitioner is a big businessman and as such, he should be maintaining accounts, etc. If really the cheque leaf was issued in 1992, it is not difficult for him to produce the statement of account from the bank in order to establish that the cheque of 1992 alone was sent to the bank in 1998. The statement of accounts from the bank will clearly disclose about the other cheque leaves used by the petitioner and other related circumstances. The statement of accounts from the bank will clearly disclose about the other cheque leaves used by the petitioner and other related circumstances. There are ways and means to establish the case of the petitioner. The complaint was filed in 1995 and it is pending for the last two years. Under the circumstance, when the application has been filed by the petitioner at the Bogus and of the trial, I am not inclined to allow the revision and the order passed by the Court below is proper and correct and no interference is called for. Hence the points are answered accordingly. 11. For the reasons stated above, the revision fails and is dismissed. However, it is open to the Court to consider the claim of the petitioner after the evidence is completed and if any necessity is felt, it can be sent to the expert for getting necessary opinion in accordance with law. Consequently, Cri.M.P. Nos. 5493 of 2000 is also dismissed. Petition dismissed.