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2013 DIGILAW 2296 (MAD)

Vijayamma v. P. Palani

2013-07-03

S.VIMALA

body2013
JUDGMENT 1. This revision has been filed by the accused challenging the dismissal of the petition filed under Section 45 of the Indian Evidence Act. 2. When the matter came up for hearing on 21.06.2013, the arguments of the petitioner was heard and for respondent's arguments, it was adjourned to 24.06.2013. Without disclosing that the matter is part-heard, adjournment was sought at the instance of the respondent on the morning of 24.06.2013 and it was also granted. On the very same day, the learned counsel for the petitioner brought to the notice of the Court that the matter is part-heard and there is an urgency to dispose of the case. Therefore, again the matter was ordered to be listed on the next day, i.e., on 25.06.2013. From that day onwards, there was no representation for the respondent. The learned counsel for the petitioner represented before the Court that he took personal care to inform the learned counsel for the respondent and despite information, there is no response. On this representation, the matter was further proceeded with. 3. Originally the petition was filed by the accused under Section 45 of the Indian Evidence Act to send the documents under Exs.P1 and P2 for the expert opinion. The trial Court has dismissed the petition on the ground that seeking similar relief already two petitions were filed and both the petitions were allowed. Therefore, the third petition for the similar relief is not maintainable. The order of the trial Court reads as follows: "11.01.2013:- In this case already petitioner filed same application twice it were allowed and the expert's returned the documents, stating that the age of the ink could not be identified. This is the third application already the petitioner was provided with sufficient opportunity and hence once again the petition for the same reason cannot be entertained. And the matter is pending for long time in defence. Hence the petition is dismissed as the merits." 4. But, the perusal of the order would go to show that the two petitions on the earlier occasions has been filed seeking to get the opinion on the age of the ink and the forensic experts have given reply stating that the age of the ink could not be identified. 5. Hence the petition is dismissed as the merits." 4. But, the perusal of the order would go to show that the two petitions on the earlier occasions has been filed seeking to get the opinion on the age of the ink and the forensic experts have given reply stating that the age of the ink could not be identified. 5. The learned counsel for the petitioner submits that the present application is not to get the opinion of the experts on the age of the ink but to get the sequence of writing. In the reply given by the Mumbai Forensic Experts, the experts have informed that eventhough it is not possible to give opinion on the age of the ink, they can very surely tell which ink is written first and which is written later. It is also intimated that they can deliver the report within a week's time. Furnishing the copy of the letter issued by the Forensic Experts of Mumbai, the learned counsel for the revision petitioner submitted that without any further delay it is possible to get report on the sequence of writing on Ex.P1 and Ex.P2 documents. 6. Perusal of the present petition would go to show that it is very clearly mentioned that the petition is to send the Ex.P1 and P2 documents for the opinion of the hand writing expert to ascertain which one is written first and which one is written next. The Lower Court, without understanding the same, chosen to dismiss the petition. 7. In the light of the reply given it is appropriate that the accused has to be permitted to send Exs.P1 and P2 for the opinion of Hand Writing Experts with regard to sequence of writing under Ex.P1 and Ex.P2. 8. Hence, the order of the trial Court in Crl.M.P.No.39 of 2013 in STC No.45 of 2011 is set aside and the petition filed under Section 45 of the Evidence Act is allowed. 9. The trial Court shall send the documents under Exs.P1 and P2 for the experts opinion to the address furnished in the petition seeking opinion on the issues referred as above. After getting the reply, the trial Court shall decide the case on merits. 10. With the above direction, the Criminal Revision Case is allowed.