Arunadevi vs K. Damodarari

P.R. Shivakumar, J.—The present Criminal Revision case has been preferred against the order of the learned Judicial Magistrate No. II, Tiruvallur dated 09.09.2004 made in Crl. M.P. No. 2154 of 2004 In C.C. No. 155 of 2003.

The respondent herein preferred a complaint u/s 200 Cr. P.C. against the petitioner herein for an alleged offence punishable u/s 138 of Negotiable Instruments Act. After the evidence on the side of the respondent/complainant was concluded, the petitioner/accused filed the above said application u/s 45 of the Indian Evidence Act to send the disputed cheque, marked as Ex.Pl in the said case, to the Forensic Science Department at Chennai to have if examined by a handwriting expert to give his opinion regarding the following aspects:

(i) Whether the signatures of the petitioner/accused and other writings found in the disputed cheque (i.e.) Ex.Pl are contemporary?

(ii) Whether the signatures and the amount in figure could have been made in the year 19%, whereas the rest of the particulars written in the said cheque should have been made in the year 2003?

(iii) Whether the writings on the body of the cheque including the name of the payee and the date are in the handwriting of the petitioner/accused?

The said petition after hearing, was dismissed by the learned Judicial Magistrate No. II, Tiruvallur, by an order dated 09.09.2004. The correctness of the said order is under challenge in the present criminal revision case.

This Court heard the arguments advanced by Mr. C. Ravichandran for M/s. S. Santhosh Kumar, learned counsel appearing for the petitioner and also the arguments advanced by Mr. N. Subbarajulu, learned counsel appearing for the respondent. The materials available in the form of typed set of papers were also perused.

The order of the learned Judicial Magistrate No. II, Tiruvallur dismissing the application filed u/s 45 of the Evidence Act, for referring the disputed cheque marked as Ex.P.l before the trial court to find out the age of the ink used for various writings found in the said cheque and to give opinion as to whether the entire writings found in the said cheque could have been made by one and the same person, namely the petitioner/accused, is challenged in this criminal revision case.

Mr. C. Ravichandran, learned counsel appearing for the petitioner, referring to the judgment of the Hon''ble Supreme Court made in Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampornam, and the judgment of the learned Single Judge of this Court (K.N. Basha, J) in P. Arumugam v. Rajamani reported in 2007 l L.W.(Crl) 553, argued that fair chances should be given to the accused person to prove his innocence; that referring the disputed cheque to a handwriting expert to find out the above said features was one such opportunity which should be given to the accused person, unless the Court would come to the conclusion that the prayer for such reference was made for the purpose of vexation or protracting the proceedings and that the denial of such opportunity by the Court below in this case definitely resulted in denial of fair opportunity to the petitioner/accused to defend herself in the trial.

The Supreme Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), has made the following observations:-

Section 243(2) is clear that a Magistrate holding an inquiry under Cr. P.C. in respect of an offence triable by him does not exceed his powers u/s 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. "Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application u/s 243 Cr. P.C. without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) Cr. P.C. refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque in question, for the opinion of the handwriting expert after the respondent has closed her evidence. The Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable.

The learned counsel appearing for the respondent pointed out the fact that in the said case before the Hon''ble Supreme Court, the actual dispute was with regard to signature found in the cheque and that the Supreme Court has made the observations only in the light of the fact that the accused therein wanted to prove the signature found in the cheque concerned in that case were not her signature. It is also the contention of the counsel for the respondent that in the case on hand, the signature found in the disputed cheque, Ex. PI has been admitted to be the signature of the petitioner/accused. On the other hand, the learned counsel appearing for the petitioner would contend that though the Hon''ble Supreme Court in the said case had made the above cited observation in the light of the fact that the signature of the accused in the disputed cheque therein was not admitted but disputed, the proposition of law laid therein is that denial of an opportunity to the accused to get the disputed cheque examined by a handwriting expert would amount to unfair trial and deprivation of a reasonable opportunity to the accused to defend himself/ herself in the criminal case, and that the petitioner is entitled to rely on the said proposition laid down by the Hon''ble Supreme Court.

A similar question arose before a learned Single Judge of this Court in P. Arumugam v. Rajamani cited supra. In the said case, the learned Single Judge has held that the ascertainment of age of the ink would help the accused to establish his contention that the cheque could not have been issued on the date alleged by the complainant for discharging any debt due to the complainant and that, when the contention of the accused was that handwritings in the cheque were not contemporary, fair play of justice requires referring the document, when requested by the accused to a handwriting expert for opinion regarding respective age of the writings found in the document.

On the other hand, the Judgment of another learned Single Judge of this Court (M. Jeyapaul J) in S. Gopal Vs. D. Balachandran, has also been brought to the notice of this Court. In the said Judgment, the learned Single Judge referred to the very same Judgment of the Supreme Court in Kalyani Basker v. M.S. Sampoornam, but observed that the same was not applicable to a case in which, the document was sought to be referred to a handwriting expert to ascertain the age of the ink used for various handwritings found in the disputed cheque. The learned Single Judge in the said Judgment relying on the judgment of Punjab and Haryana High Court in Yash Pal Vs. Kartar Singh, , has made the following observation:

In Yash Pal Vs. Kartar Singh, , it has been observed that the age of the ink cannot be determined on the basis of the writing if the ink in dispute was manufactured five years prior to the date of execution of the document and used effectively on a particular date for the first time and an expert''s opinion as to the age of ink will not resolve any controversy, but, it will help to create only confusion.

As rightly observed by the Punjab and Haryana High Court in the ratio referred to above, if an old ink is used by the person, who assisted the drawer who had already put his signature in the cheque, to fill up the matter, no useful purpose will be served if such a cheque is analyzed by the expert for rendering an opinion.

Relying on the said observation made by the learned Single Judge in Gopal v. Balachandran cited supra, the learned counsel appearing for the respondent has contended that the facts of the case on hand are similar to the facts in the said case and the ratio decided in the said case is applicable to the present case.

Per contra, the learned counsel appearing for the petitioner has pointed out that an important point which was not either canvassed or dealt with in Gopal v. Balachandran is that in the said case there was no contention that the entire particulars found in the cheque were written by the accused in his handwriting, whereas in the case on hand, the complainant while deposing as P.W.I made a clear assertion to the effect that the entire particulars found written in the cheque were in the handwriting of the petitioner/accused. The learned counsel has contended further that in the light of such an assertion by P.W.I, referring the disputed cheque to a handwriting expert to make a comparison of the signatures and writing found in the cheque with the admitted signatures and writing of the accused would go a long way in establishing the defence case of the petitioner/accused. As rightly contended by the learned counsel appearing for the petitioner, this aspect was not properly dealt with by the learned Judicial Magistrate. The judgment in Gopal v. Balachandran can be distinguished from the judgment in Arumugam v. Rajamani. The facts of the case on hand attracts the ratio decidendi made in Arumugam v. Rajamani.

In view of the foregoing discussion, this Court holds that the order passed by the learned Judicial Magistrate No. II, Tiruvallur does not stand the scrutiny of law and the same deserves to be set aside and reversed.

In the result, the Criminal revision is allowed and the order of the learned Judicial Magistrate No. II, Tiruvallur dated 09.09.2004 made in Gl. MP. No. 2154 of 2004 in C.C No. 155 of 2003 is set aside. The disputed cheque along with the documents containing admitted handwriting and signatures of the petitioner/accused shall be sent to the Forensic Science Department, Chennai in a sealed cover through an Advocate Commission appointed by the trial Court for the purpose, for getting the opinion of a handwriting expert as to:

(i) Whether the entire writings in Ex.Pl are in the handwriting of the petitioner/accused?

(ii) Whether the entire writings found in Ex.Pl cheque could have been made at one and the same date or at different point of time? and

(iii) If possible, what could be the age of the ink used for writing different parts of the cheque?

The entire exercise of obtaining the opinion of the expert should be completed within one month from the date of receipt or production of a copy of this order. The learned Judicial Magistrate No. II, Tiruvallur shall dispose of the case (CC. No. 155 of 2003) within a period of one month thereafter. Consequently, connected M.P. is closed.