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2013 DIGILAW 1209 (MAD)

V. Barathidasan v. J. Ramu

2013-03-04

ARUNA JAGADEESAN

body2013
Judgment :- 1. This revision is filed against the order passed by the learned Judicial Magistrate No.III, Trichy in Cr.M.P.No.3817 of 2009 in C.C.No.702 of 2006 dated 13.11.2009 declining to send the documents namely, cheque and promisery note for comparison by the hand writing expert. 2. The short facts are as follows: The revision petitioner/accused borrowed a sum of Rs.65,000/- from the complainant on 04.01.1997 and executed a pro-note in favour of the complainant for the repayment of the amount borrowed. When the complainant demanded for the repayment of the above said amount, the petitioner/accused in discharging of his partly liability issued a cheque in favour of the complainant on 1309.1997 in cheque No. 0421786 drawn on Indian Overseas Bank, Saliyamangalam, Branch. When the cheque was presented by the complainant for encashment to the City Union Bank limited on 24.09.1997 it was returned with an endorsement as ‘Insufficient Funds’. The said bank intimated the fact of dishonour to the complainant on 24.09.1997. Thereafter, the complainant issued a lawyer’s notice to the petitioner/accused on 28.09.1997 calling upon him to repay the amount covered under the dishonoured cheque. The said notice was returned unserved as ‘unclaimed’. Thereafter, the complainant/respondent filed a complaint under Section 138 of Negotiable Instruments Act and the same was taken on file in C.C.No.702 of 2006 on the file of the learned Judicial Magistrate No.III, Trichy. 3. In the course of trial, the petitioner/accused, filed a petition in Cr.M.P.No.3817 of 2009 seeking to send the cheque No.0421786 and the pro-note to the hand writing expert for comparison of those documents and to get expert’s opinion on those documents. The said petition was resisted by the respondent by contending that the petition has been filed belatedly just to drag on the proceedings. 4. After hearing the arguments on both sides, the learned Judicial Magistrate No.3, Trichy, dismissed the petition on the ground that nearly after 11 years this application has been filed and no purpose would be served on comparing the signatures and writings found in the documents namely pro-note and the cheque and further in the absence of any admitted signatures or writings of the accused, no comparison could be made by the Expert. On the above grounds the respondent submitted that it is not justifiable to allow such plea. Aggrieved against the said order, the present revision has been filed. 5. Mr. On the above grounds the respondent submitted that it is not justifiable to allow such plea. Aggrieved against the said order, the present revision has been filed. 5. Mr. M. Karunanithi, learned counsel for the petitioner contended that the petitioner has disputed the signatures and writings in the pro-note as well as in the cheque and has taken the plea that it was not written in the year 1997 as alleged by the respondent and the same was written only in the year 2006 and therefore, he would submit that the said documents are required to be examined by hand writing expert for his opinion. 6. The learned counsel for the petitioner in support of his contention referred to the testimony of a scribe of the pronote who has been examined as D.W.2 and has stated that the petitioner has not written the pro-note on 04.01.1997 as alleged by the respondent/complainant. He further submitted that the opinion of the hand writing expert would help the court in coming to a right conclusion in resolving the issues. 7. The learned counsel for the petitioner relied on the decisions of this Court reported in 2007 (1) LW Cri 553 (in P. Arumugam Vs. Rajamani) and 2008 (2) LW Cri 916 (In Arunadevi Vs. K. Damodaran) in support of his contention that the age of the ink could be ascertained by an expert. 8. On the other hand, Mr. R. Sundar, learned counsel appearing for the respondent contended that the present move on the part of the petitioner/accused for obtaining the opinion of the expert is intended to drag on the proceedings and no purpose would be served by obtaining the opinion of the expert as to the age of the ink since it is totally irrelevant factor for adjudication of the dispute. The learned counsel for the respondent relied a decision in K. Vairavan Vs. Selvaraj reported in 2012 (2) DCR 451 wherein this Court has held that since there is no expert to offer any opinion regarding the age of the ink used for writing, the said prayer cannot accepted. 9. It is no doubt true that when the court has to form an opinion upon a point of identity of hand writing the opinions upon that point of the persons specially skilled in questions as to the identity of hand writing are relevant facts. Such persons are called experts. 9. It is no doubt true that when the court has to form an opinion upon a point of identity of hand writing the opinions upon that point of the persons specially skilled in questions as to the identity of hand writing are relevant facts. Such persons are called experts. Section 45 of Indian Evidence Act therefore says that the opinion of hand writing expert on the identity of hand writing is the relevant fact and that such person who is specially skilled is an expert. Likewise, Section 73 of Indian Evidence Act speaks of comparison of disputed signatures with admitted or proved signatures. 10. The basic rationale of the abovesaid provisions is that if the opinion of scientific investigation is going to help in extracting the truth and determining the controversy raised in the dispute before the court, then such investigation could be permitted. In the present case, such investigation is not likely to help to conclusively prove that the writing and the signature found in the pro-note as well as in the cheque was in fact recorded in the year 2008 and not in the year 1997 because, the age of the ink cannot be determined on the basis of the writing. For instance, if the ink is manufactured five or ten years before the date of execution of the document and used on 1997 for the first time then instead of resolving any controversy it would only create confusion. Therefore, no useful purpose could be served by allowing such an application. It is true that opinion of expert is relevant under Section 45 of Indian Evidence Act. In the present case, whether such scientific investigation would advance the cause of justice and would be necessary for adjudicating upon the dispute would be answered only in the negative. 11. That apart, in this case, the disputed signature is of the year 1997 and whereas it is contended by the learned counsel for the petitioner that it is of the year 2008. In this case, petition no contemporaneous admitted signatures or writings of the petitioner are filed for the purpose of comparison by the expert. The petitioner has merely prayed for comparison of the cheque and the pro-note by hand writing expert and he has not produced any admitted signatures or writings for the purpose of such comparison. 12. The Hon’ble Supreme Court, in Shashikumar Banerjee Vs. The petitioner has merely prayed for comparison of the cheque and the pro-note by hand writing expert and he has not produced any admitted signatures or writings for the purpose of such comparison. 12. The Hon’ble Supreme Court, in Shashikumar Banerjee Vs. Sabodh Kumar Banerjee reported in AIR 1964 SC 529 at 537, has held thus: “Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may and that Osborn on “Questioned Documents” at page 464 says even with respect to chemical tests that ‘the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable date upon which a definite opinion can be based’. In these circumstances the more opinion evidence of the attesting witnesses in a case like this where there are no suspicious circumstances.” 13. In the present case, even according to the petitioner, there is evidence to the effect that the pro-note was executed in the year 1997 and he has examined a scribe in support of his case. If that be so, opinion of the expert cannot override the evidence of the witnesses and therefore, no useful purpose would be served by obtaining the opinion of the expert as to the age of the ink. 14. Even if signatures are got from the petitioner/accused in the open court it cannot serve any purpose as the disputed signatures are of the year 1997 and the specimen signature would be of the year 2013, then there is a gap of 16 years between the two signatures. That part, if any specimen signatures are obtained from the petitioner in open court there is every possibility of disguising his style of signature so as to make them dissimilar with the disputed signatures. Since there are no contemporaneous signatures for compassion with the disputed signatures, there is no useful purpose in sending the documents to an expert for his opinion. Since there are no contemporaneous signatures for compassion with the disputed signatures, there is no useful purpose in sending the documents to an expert for his opinion. Therefore, the decision cited by the learned counsel for the petitioner cannot be applied to the facts of this case and are distinguishable. 15. In the said view of the matter, I do not find any ground to interfere with the well reasoned order passed by the learned Judicial Magistrate No.3, Trichy and he has considered the matter in right perspective manner and dismissed the application. I do not see any valid ground to interfere with the impugned order. Accordingly, the Criminal Revision Petition is dismissed.