Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 1504 (MAD)

Nallathambi v. Nallusamy

2013-04-02

R.S.RAMANATHAN

body2013
Judgment :- 1. Defendants 2 to 5 in O.S.No.122 of 2004 on the file of the II Additional Judge, Sub Court, Salem are the revision petitioners. 2. The respondent/plaintiff filed the suit for recovery of a sum of Rs.1,00,000/= based on the promissory note alleged to have been executed by the first defendant Nallathambi, whose legal heirs are the revision petitioners herein, for the borrowal of a sum of Rs.1,00,000/=. After commencement of the trial, the revision petitioners filed an application to send the promissory note Ex.A1, receipt, Ex.B4 and the acknowledgment card Ex.A3 to the handwriting expert to find out the age of the ink in the suit promissory note Ex.A1 and that petition was dismissed and aggrieved by the same, this revision is filed. 3. Learned counsel for the revision petitioners submitted that the respondent filed the suit on the promissory note dated 6.1.2002 alleged to have been executed by Nallathambi and prior to the filing of the suit, a notice was issued to the said Nallathambi and the said Nallathambi sent a reply stating in detail that he did not receive any money nor executed any promissory note in favour of the plaintiff and he had dealing with Salem Finance and in connection with that dealing, in the year 1984, he executed blank promissory notes and those promissory notes were not delivered even after discharge of the loan amount payable to Salem Finance and that blank promissory notes must have been used by the partners of Salem Finance through the plaintiff and therefore, he was not liable to pay any amount. The learned counsel for the revision petitioners further submitted that during the pendency of the suit, the sole defendant died and the revision petitioners were impleaded as his legal representatives and they have filed the application to determine the age of the ink in the promissory note as well as in Exs.B4 and A3 alleging that the ink of the signature of Nallathambi found in the promissory note has faded whereas the ink of the body of the promissory note is of the recent origin. Therefore, to substantiate the case of the defendants, the application was filed and though the learned Trial Judge relied upon the judgment reported in ELUMALAI v. SUBBARAMANI (2011-2-LW 308), without properly appreciating that judgment, dismissed the petition and therefore, the order of the court below is liable to be set aside. Therefore, to substantiate the case of the defendants, the application was filed and though the learned Trial Judge relied upon the judgment reported in ELUMALAI v. SUBBARAMANI (2011-2-LW 308), without properly appreciating that judgment, dismissed the petition and therefore, the order of the court below is liable to be set aside. He further submitted that as per the judgment reported in 2011- 2-LW 308, facilities are available to find out the age of the ink used in a document and the learned Judge, after referring to the judgment of the Honourable Supreme Court and other Text Book relating to Forensic Sciences in Criminal Investigation, held that the document can be sent for ascertaining the age of the ink and therefore, as per the aforesaid judgment, the relief has to be granted. 4. On the other hand, the learned counsel for the respondent submitted that the application was filed only to drag on the proceedings and at the fag end of the trial and no such application was filed when the sole defendant was alive. He further submitted that the suit was filed in the year 2004, the written statement was filed in the year 2005 and the sole defendant died only in the year 2006 and till his death, he has not taken any steps to ascertain the age of the ink found in Ex.A1 promissory note and therefore, when the executant did not take any steps to find out the age of the ink, the revision petitioners, who are only legal representatives of the executant, cannot do the same. He further submitted that in the judgment in K.VAIRAVAN v. SELVARAJ ( 2012 (5) CTC 596 ), the learned Judge has considered all the earlier judgments on this aspect and also relied upon the opinion of the expert from Central Forensic Sciences Laboratory, Hyderabad and held that there is no facility available in India to ascertain the age of the ink found in the document and held that the application to send the document for ascertaining the age of the ink cannot be entertained. He further submitted that as per the aforesaid judgment reported in 2012 (5) CTC 596 , the petition is liable to be dismissed and that has been rightly dismissed by the Trial Court. 5. He further submitted that as per the aforesaid judgment reported in 2012 (5) CTC 596 , the petition is liable to be dismissed and that has been rightly dismissed by the Trial Court. 5. It is not in dispute that while the sole defendant was alive, no steps were taken by him to send the document for ascertaining the age of the ink though he has stated in the reply notice as well as in the written statement that the promissory note must have been fabricated by using the promissory note executed by him in favour of Salem Finance in the year 1994. Further, after two witnesses were examined on the side of the defendants, the application was filed for sending the document to the handwriting expert. 6. In this context, we will have to see whether the age of the ink can be ascertained in the light of the judgments relied upon by the counsel appearing for both sides. In the judgment reported in 2011-2-LW 308, the learned Judge relied upon the Book on Forensic Science in Criminal Investigation and Trials by B.R.Sharma (1999 Edition) and also the judgment of the Honourable Supreme Court in SHASHI KUMAR BANERJEE v. SUBODH KUMAR BANERJEE ( AIR 1964 SC 529 ) and held that the document can be sent to ascertain the age of the ink used in the document. 7. In judgment reported in AIR 1964 SC 529 , the Honourable Supreme Court held as follows:- "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 add that Osborn on "Questioned Documents" at page 464 says even with respect to chemical tests that "the chemical tests to determine the age also, as a rule are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based. In these circumstances, the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances." 8. In these circumstances, the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances." 8. The learned Judge also relied upon the book "Questioned Documents" by Osborn wherein that author has opined that by conducting certain experiments, the age of the ink can be established. Therefore, the learned Judge came to the conclusion that in Sashikumar Banerjee's case, the expert had not offered any opinion as to the age of the ink and he also admitted in evidence that only by chemical test, it can be definitely stated whether a particular writing was of a particular year or period and in that circumstances, the Honourable Supreme Court held as referred to above and held that due to scientific advancement, it may not be difficult to ascertain the age of the ink by using chemical test and allowed the application. 9. In my respectful opinion, having regard to the text referred to in the judgment reported in 2011-2-LW 308, the learned Judge proceeded hypothetically that due to scientific advancement, the age of the ink can be determined by the expert. Further, the judgment reported in 2012 (5) CTC 596 ), the learned Judge considered various judgments on this point and also referred to the opinion of the President of Central Forensic Science Laboratory, Hyderabad on this subject and held that there is no expert available in the Central Forensic Sciences Laboratory, Hyderabad to offer any opinion regarding the age of the ink and it is also not known whether the facility is available in any laboratory. The learned Judge, took some pain to find out whether any facility is available in any Laboratory to ascertain the age of the ink, and he had occasion to interact with the President of Forensic Science Laboratory, Hyderabad when he came here to deliver a lecture in the Tamil Nadu State Judicial Academy on the subject "disputed document" and after getting his opinion, he held as follows:- "20. Very recently, the President of Central Forensic Science Laboratory, Hyderabad, Andhra Pradesh State was invited to give a lecture in the Tamil Nadu State Judicial Academy at Chennai on the subject "disputed document". Very recently, the President of Central Forensic Science Laboratory, Hyderabad, Andhra Pradesh State was invited to give a lecture in the Tamil Nadu State Judicial Academy at Chennai on the subject "disputed document". During the course of interaction, a question was posed to him -Is there any expert available for offering opinion regarding the age of the ink used for writing the disputed document? -In categorical terms, he informed that there is no such expert available not only in his Laboratory but in any Laboratory throughout the country at present and, therefore, it is not at all possible to offer any opinion regarding the age of the ink used in the disputed document. When a specific query was made during interaction to the President as to what had happened to the documents already sent to his Laboratory seeking such opinion, he said that the said documents were only returned without offering any opinion. 21. Now, in order to ascertain as to whether there is any expert really available in the said laboratory since the request is to send the disputed document to the said laboratory in Hyderabad, this Court through the Registrar called for remarks from the said laboratory in Hyderabad. The Assistant Director and Scientist 'C', Central Forensic Science Laboratory, Hyderabad, has given his remarks through fax message to this Court vide Ref. CFSL(H)DOC/MISC/2012-13 wherein he has stated as follows:- "This is to submit that as there is no validated method, this laboratory does not undertake the examination for determining the relative/absolute age of the ink of the writings/signatures." From the above fax message from the Central Forensic Science Laboratory, Hyderabad, it is crystal clear that there is no expert available in the said Laboratory also to offer any opinion regarding the age of the ink." 10. Therefore, having regard to the judgment reported in 2012 (5) CTC 596 , wherein, it has been held, after getting opinion from the expert, that no such facility is available in the Central Forensic Science Laboratory, Hyderabad, and also having regard to the fact that the application was filed only by the legal representatives at the fag end of the trial and no such application was filed by the first defendant, I do not find any merit in the revision and the order of the court below does not call for interference. The same view has been expressed in 2013(1)MWN(Civil) page 681. The same view has been expressed in 2013(1)MWN(Civil) page 681. In the result, the revision is dismissed. No costs. The connected miscellaneous petition is also dismissed.