A. Devaraj vs Rajammal

G.M. Akbar Ali, J.—The petition is filed seeking a direction to set aside the order dated 10.11.2009 made in Crl.R.C. No. 37/2008 by the

learned Additional District and Sessions Judge, Gopichettypalayam and confirming the order passed by the learned Judicial Magistrate,

Sathyamangalam in CMP No. 3579 of 2007 in C.C. No. 595 of 2004 dated 2.5.2008.

Petitioner is the accused in C.C No. 595 of 2004 pending on the file of Judicial Magistrate, Sathyamangalam, Erode. The said proceedings was

initiated on a private complaint lodged by the Respondent for an offence u/s 138 r/w 142 of Negotiable Instruments Act (hereinafter referred to as

Act"").

Pending proceedings, the Petitioner has filed CMP No. 3579 of 2007 u/s 45 of the Indian Evidence Act seeking for an order to send the

cheque to the expert to determine the ""age of the ink"" found in the cheque. It was opposed by the complainant. The learned Judicial Magistrate

relied on a decision reported in 2008 (1) CTC 496 (S. Gopal v. P. Balachandran), wherein it is held that there is no scientific facility to determine

the age of the ink. Consequently, the learned Magistrate dismissed the application.

The Petitioner has filed a revision petition in Crl.R.C. No. 37 of 2008 before the learned Additional District and Sessions Judge,

Gopichettipalayam. The learned Additional District and Sessions Judge (Fast Track Court II), after considering the points, concurred with the

learned Judicial Magistrate and dismissed the revision. Aggrieved by which, the accused is before this Court u/s 482 Code of Criminal Procedure

Mr. N. Sudharsan, learned Counsel for the Petitioner drew our attention to an order passed by this Court on 2.11.2010 in CRP (PD) No.

1475 of 2010, wherein, His Lordship R.S. Ramanathan J. observed as follows:

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. 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.

He also relied on a decision reported in 2007 (1) Crimes 106 (SC), (Kalyani Baskar v. M.S. Sampornam), wherein the Apex Court has held as

follows:

Where accused in a cheque bouncing case prayed to Magistrate to send cheque in question for examination by handwriting expert to ascertain

genuineness of signatures, as a fair trial request should have been allowed in exercise of power u/s 243(2) Cr.P.C

On the contrary, Mr. Anandakumar, the learned Counsel for the Respondent submitted that the alleged transaction took place in the year 2004

and the accused has chosen to file an application only in the year 2007 and therefore, at the belated stage, the application cannot be entertained

and it is only a delaying tactics by the accused Petitioner.

The learned Counsel relied on a decision reported in R. Jagadeesan Vs. N. Ayyasamy and Another, , wherein this Court has held that finding

the age of the writing in a document is only futile, since the Head of the Department of Forensic Science at Chennai had stated that there is no

scientific method available anywhere in this State to scientifically assess the age of any writing.

Heard and perused the materials available on record.

The Petitioner has invoked Section 45 of Indian Evidence Act contending that the cheque was not issued to the complainant but had been

issued to the brother of the complainant during 1998 and 1999 and to prove that the writings in the cheque do not belong to the year 2004 as

dated in the cheque, the age of the ink has to be determined.

The learned Judicial Magistrate as well as the revision authority had relied on the decision reported in 2008 (1) CTC 496 (S. Gopal v. P.

Balachandran) (cited supra) and has also relied on a decision reported in R. Jagadeesan Vs. N. Ayyasamy and Another, , wherein it is held that

there is no facility available to determine the age of the ink. However, another learned Single Judge of this Court has now held that the Central

Forensic Science Laboratory at Hyderabad has the facility to ascertain the age of the ink.

In my considered opinion, the latest judgment of the learned Single Judge of this Court in CRP (PD) No. 1475 of 2010 is not a contradictory

judgment to the earlier judgment of the learned Single judge in the case of R. Jagadeesan Vs. N. Ayyasamy and Another, . Hon''ble R.S.

Ramanathan J. has differentiated the earlier judgment of Hon''ble S. Nagamuthu J, and has ordered sending the document to be examined by the

CFSL, Hyderabad as they claim the facility is available.

Since the learned Magistrate has dismissed the application based on the earlier judgment, I am of the considered view that when there is facility

available, a fair trial requires that a chance must be given to the accused/Petitioner as he has taken a definite stand that the cheque was issued to a

different person in the year 1998-1999, which has been used by the complainant in the year 2004. However, as observed in the order dated

2.11.2010 in CRP (PD) No. 1475 of 2010, an admitted signature of the Petitioner of the same year should also be sent for comparison.

Therefore, the criminal original petition is allowed and the order passed by the learned Additional District and Sessions Judge,

Gopichettypalayam in Crl.R.C. No. 37/2008 dated 10.11.2009 and learned Judicial Magistrate, Sathyamangalam in CMP No. 3579 of 2007 in

C.C. No. 595 of 2004 dated 2.5.2008 are set aside.

The revision Petitioner is directed to submit his admitted signature as stated above within a period of two weeks from the date of receipt of a

copy of this order before the lower court. The lower court is directed to send both the documents to the Central Forensic Science Laboratory,

Directorate of Forensic Science as stated above. The lower court is directed to fix the remuneration to the Advocate Commissioner and also for

the expenses for comparison. If the revision Petitioner fails to produce the admitted signature for comparison as stated above within the stipulated

period, the revision Petitioner is not entitled to ask for sending the documents for comparison. Consequently, the connected M Ps are closed.