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2017 DIGILAW 1377 (KER)

C. T. Kuriakose v. Joseph

2017-11-06

ALEXANDER THOMAS

body2017
ORDER : The petitioner has been indicted for offence punishable under Section 138 of the Negotiable Instruments Act in CC No.427/2016 on the file of the Court of Judicial First Class Magistrate-I, Thodupuzha instituted on the basis of a complaint filed by the first respondent herein. The dishonoured cheque involved in this case is for Rs.5 lakhs. According to the petitioner (accused), the specific case of the defence is that the accused had not given the instant cheque to the first respondent complainant in the year 2013 as alleged in the complaint and that it is the further case of the petitioner (accused) that the said cheque leaf is above 18 years old and the signature in the cheque is also above 18 years old, and that this fact can be proved if the cheque is sent to the Forensic Science Laboratory for determining the age of the handwriting and the age of the signature in the said dishonoured cheque. If it is so scientifically established that the age of the cheque and the signature therein are 18 years old, then the specific case put up by the complainant that the cheque was executed and issued in the year 2013, would be crumbled down. Therefore, for this purpose the petitioner (accused) had filed Annexure-A1, CMP No.7425/2017 in this complaint proceedings, praying that the cheque in question shall be subjected to expert and scientific analysis by the Forensic Science Laboratory to determine the age of the handwritings and the signature in the dishonoured cheque. The complainant had filed Annexure-A2 objection stating that the said prayer is not maintainable as the age of the cheque cannot be scientifically determined. The trial court as per the impugned Annexure-A3 order dated 5.8.2017 has rejected the above said request made by the petitioner (accused) holding that since there is no device or technique to ascertain the age in that manner, no purpose will be served by allowing the said application. The impugned Annexure-A3 order dated 5.8.2017, which is under challenge in this Criminal RP reads as follows:- “This is an application filed u/S.243 Cr.P.C. Heard both sides. Prayer of the petition is that age of the ink used to sign the cheque has to be analyzed by Forensic examination. Since no device or technic is developed to ascertain the age of the ink, such purpose will not be served by allowing this application. Prayer of the petition is that age of the ink used to sign the cheque has to be analyzed by Forensic examination. Since no device or technic is developed to ascertain the age of the ink, such purpose will not be served by allowing this application. Hence this application is rejected.” 2. Heard Sri. Joby Jacob Pulickekudy, learned counsel appearing for the petitioner (accused), Sri. Saigi Jacob Paletty, learned Prosecutor appearing for R-2 (State) and Sri. N. Nagaresh, learned Assistant Solicitor General of India appearing for Addl. R-3 (Central Forensic Science Laboratory). 3. When the case was came up for admission on 15.9.2017, the learned counsel appearing for the petitioner had submitted that the view taken by the trial court in the impugned Annexure-A3 order as well as the judgment of this Court in Rajan v. T.K. Madusoodanakurup and Another, reported in 2013(2) KHC 477 : 2013 (2) KLT 759 has been rendered without taking into account the judgment of the Apex Court in T. Nagappa v. Y.R. Muralidhar, reported in (2008) 5 SCC 633 : AIR 2008 SC 2010 as well as the judgment dated 1.2.2011 of the Madras High Court in the case in A. Devaraj v. Rajammal (Crl.OP No.27211/2010); and further that it has also been observed in the abovementioned judgment of the Madras High Court that facilities for determining the age of signatures and handwritings are available at Central Forensic Science Laboratory, Hyderabad (Central Directorate of Forensic Science in the office of the Government Examiner of Tests and Documents) etc. 4. This Court in the decision in Rajan's case (supra) had dismissed a similar petition by holding that no scientific facilities are available for determining the age of the handwritings. This Court in para 10 of the decision in Rajan's case (supra), has held as follows:- “10. In the case on hand, the scientific aspects were considered by the learned Magistrate in the impugned order and came to the conclusion that it is not possible to ascertain the age of the writings by sending it for expert opinion as there is no standardised scientific method available for that purpose. In the case on hand, the scientific aspects were considered by the learned Magistrate in the impugned order and came to the conclusion that it is not possible to ascertain the age of the writings by sending it for expert opinion as there is no standardised scientific method available for that purpose. Further, this Court has considered the same question while deciding Criminal MC No.4763/2008 (Anil Babu v. Raj Kumar) and in that case, a report was obtained from the Forensic Science Laboratory, wherein it was stated that there is no machinery available in India to ascertain the age of the writings and only the question regarding the authorship of the person who put the signature and the writings, by comparing the signature with the standard signature sent for expert opinion, was answered. Under such circumstances and also considering the fact that there is no facility available in the Forensic Science Laboratory for ascertaining the age of the writings on the document, the lower Court was perfectly justified in dismissing the application for sending Ext.P1 cheque for expert opinion to ascertain the age of the writings and the signature on the document.” 5. The Madras High Court in the decision in R. Jagadeesan v. N. Ayyasamy and another, reported in 2010 CrLJ 2917 : 2010 I CTC 424, on the basis of the report from the Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu that no such facility was available in India, has held that in such circumstances sending the documents for expert opinion to determine the age of the handwritings is a futile exercise and the accused cannot be permitted to send the documents for expert opinion for such a purpose. This Court recently in the order dated 25.8.2017 rendered in Crl.M.C.No.5700/2017 had called upon the Public Prosecutor to get specific instructions from the Director of Forensic Science Laboratory, Govt. of Kerala, Thiruvananthapuram as to whether any scientific or technical facilities are available with that authority to determine the age of the handwritings etc. The learned Prosecutor on the basis of the instructions furnished by the Director of Forensic Science Laboratory, Govt. of Kerala, Thiruvananthapuram had submitted that at present, there is no absolute facility available to determine the age of handwriting entries and accordingly this court held in the order dated 25.8.2017 that the impugned stand taken by the trial court cannot be faulted with. of Kerala, Thiruvananthapuram had submitted that at present, there is no absolute facility available to determine the age of handwriting entries and accordingly this court held in the order dated 25.8.2017 that the impugned stand taken by the trial court cannot be faulted with. Accordingly, this Court had dismissed that Crl.M.C. No. 5700/2017. 6. The petitioner in this case has placed serious reliance on the judgment dated 1.2.2011 of the Madras High Court in Crl.OP No.27211/2010 in A. Devaraj v. Rajammal, wherein the Madras High Court placed reliance on another order dated 2.11.2010 rendered by that High Court in CRP(PD) No.1475/2010, wherein it has been observed in para 6 thereof 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. 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.” On the basis of the aforequoted order dated 2.11.2010 rendered in CRP (PD) No. 1475/2010, the Madras High Court held in para 11 of the subsequent order dated 1.2.2011 in Crl.O.P.No.27211/2010 that the above said order of the learned single Judge of the Madras High Court in CRP(PD)No.1475/2010 is not contradictory to the earlier aforementioned judgment of the Madras High Court in R. Jagadeesan (supra), and in the subsequent case, direction was given on the basis of the information that facility in that regard is available. 7. Since the petitioner had placed reliance on the above said order dated 1.2.2011 of the Madras High Court in Crl.O.P.No.27211/2010 (A.Devaraj v. Rajammal), this Court had directed the Addl. 3rd respondent, Central Forensic Science Laboratory (CFSL), Hyderabad to ensure that an affidavit is filed through the Asst. Solicitor General in this case stating as to whether or not any scientific or technical facility is available with the CFSL, Hyderabad or any of its branches, sister institutions etc. Now the Addl. 3rd respondent, CFSL through its Director has filed an affidavit dated 23.10.2017 through the ASGI stating that the CFSL, Hyderabad does not have any facility to ascertain the age of handwritings and signature and that to the best of his knowledge, there is no institution having facility with regard to ascertainment of age of handwriting and signature and further that the CFSL, Hyderabad comes under the Directorate of Forensic Sciences Services, Ministry of Home Affairs, Govt. of India, New Delhi and other units of CFSL are at Kolkata, Chandigarh, Pune, Bhopal, and Guwhati and that the CFSL does not have any branches or sister institutions in the States of Kerala, Tamilnadu and Karnataka. Paras 2 to 5 of the said affidavit dated 23.10.2017 sworn to by the Director of CFSL (Addl. 3rd respondent) read as follows:- “2. Paras 2 to 5 of the said affidavit dated 23.10.2017 sworn to by the Director of CFSL (Addl. 3rd respondent) read as follows:- “2. I humbly submit that the Central Forensic Science Laboratory, Hyderabad does not have any facility to ascertain the age of the handwriting/signature etc. Hence, there are no procedural requirements to be followed by a trial court for properly effectuating the conduct of such a scientific test. 3. I humbly state specifically that to the best of knowledge and belief, there are no other institution/s having the facility with regard to scientifically ascertaining the age of the handwriting/signature etc. 4. I humbly submit that the Central Forensic Science Laboratory (CFSL), Hyderabad comes under the Directorate of Forensic Science Services, Ministry of Home Affairs, Govt. of India, New Delhi and other units of CFSL are at Kolkata, Chandigarh, Pune, Bhopal and Guwahati. I also submit that CFSL does not have any branches or sister institutions in the State of Kerala, Tamilnadu and Karnataka. 5. I humbly submit that all the facts stated above are true and correct to the best of my knowledge, information and belief.” 8. The learned Prosecutor appearing for the 2nd respondent (State) has also submitted on the basis of instructions from the Director of Forensic Science Laboratory, Govt. of Kerala, Thiruvananthapuram that as at present there is no absolute method available for determining the age of handwritings and signatures and that the State Forensic Science Laboratory is not in a position to entertain any such request to determine the age of handwritings and signatures etc. Petitioner’s counsel had also placed reliance on the decision of the Apex Court in T.Nagappa's case (supra). In the said judgment, the Apex Court dealt with a similar case for offence punishable under Section 138 of the NI Act, wherein also the appellant (accused) had filed an application for subjecting the original of cheque in question for examination for expert analysis by the Director of Forensic Science Laboratory for determination of the age of the signature, by contending that the complainant had obtained a signed cheque from the accused in the year 1999 etc. The Apex Court in the said decision in T.Nagappa's case (supra) had held that determination of such a factual matter is a relevant aspect for the trial and that since the accused has a right to fair trial, the rejection of such a request is not proper and had directed the trial court to take necessary steps to subject the said cheque for expert analysis for determining the age of the signatures etc. However, a perusal of the said decision of Apex Court in T.Nagappa's case (supra) would clearly disclose that there was no occasion for the Apex Court to ascertain the factual aspect as to whether or not such scientific and technical facilities are in fact available with any Forensic Science Laboratories in India. Therefore, the directions issued by the Apex Court in T.Nagappa's case (supra) cannot be an authority to the proposition that, as a matter of fact, scientific and technical facilities are available in Forensic Science Laboratories in India for scientifically determining the age of the handwritings and signatures in a cheque etc. This aspect of the matter has also been dealt with in para 8 of this Court’s judgment in Rajan's case (supra). In the light of the above said stand taken by the 2nd respondent and Addl. 3rd respondent, it is abundantly clear that as of now there are no scientific and technical facilities available in India to scientifically determine the age of the handwritings and signatures in a cheque. True that, the determination of such an issue may certainly be relevant for determining the controversies in trials as in the instant case. But since such scientific facilities are lacking, no useful purpose would be subserved by directing the trial court to subject the above said cheque for expert analysis as prayed for by the petitioner. For these reasons it is only to be held by this Court that there is no merit in the pleas made by the petitioner and, accordingly, the petition will stand dismissed.