M. Vairavan vs Kaliyammal

R. Mala, J.—At the time of admission, the arguments advanced by the learned counsel for the revision petitioner were heard in length.

The revision petitioner, who is the accused in S.T.C.No. 663 of 2013, has come forward with the present revision, challenging the impugned order passed in Cr.M.P.No. 4511 of 2014 in S.T.C.No. 663 of 2013, dated 08.10.2014, on the file of the learned Judicial Magistrate No. II, Fast Track Court at Magisterial Level, Madurai District, dismissing the application filed under Sections 45 and 73 of Indian Evidence Act, seeking the relief of sending the disputed cheques to the Handwriting Expert to the Central Forensic Science Laboratory to determine the age of the ink of the writing and the signature and the age of the body writings of the cheque and the signature.

The learned counsel for the revision petitioner would submit that even though the respondent/complainant has no objection for sending the document to Forensic Department for ascertaining the age of the ink, the Trial Court, without considering the same, has dismissed the application. Hence, he has come forward with the present revision stating that the age of the ink can be ascertained and that factum has not been considered by the Trial Court. To substantiate his argument, he relied upon the judgments of this Court reported in A. Devaraj Vs. Rajammal, and Vijayamma Vs. P. Palani, and prayed for allowing of revision.

Considering the arguments advanced by the learned counsel for the revision petitioner and on perusal of the typed-set of papers, it is seen that the respondent herein, as a complainant, filed a complaint under Sections 138 and 142 of Negotiable Instruments Act, stating that the cheque dated 25.04.2013 bearing No. 244356 has been issued for discharging the legally subsisting liability, which was presented for encashment, and that has been returned as ''no funds available''. After issuance of statutory notice, the revision petitioner sent reply stating that he has not issued any cheque to the complainant. Even then, a complaint has been preferred. During the pendency of the complaint, the present application has been filed.

It is appropriate to consider the relief sought for in the application, wherein it was stated that the disputed cheque Exhibit No. 1 has to be sent to Handwriting Expert to find out the genuineness of the writings and the ink. It is admitted that the signature is in different ink and the writings are in different ink. It is also admitted that there is no mechanism available to ascertain the age of the ink.

At this juncture, it is appropriate to consider the decisions relied upon by the learned counsel for the revision petitioner reported in A. Devaraj Vs. Rajammal, , wherein it was held that determination of age of the ink used can be ordered by the Court where the issuance of cheque is disputed by accused, as part of fair trial to give a chance to accused to prove his case when the facility is available. In the case on hand, the signature in the document is not disputed. The disputed cheque has not been issued and handed over to the complainant/respondent herein. In such circumstances, no purpose will be served to send the document for forensic department. Further, as per Section 20 of Negotiable Instruments Act, the holder of the document is having the authority to complete the instrument. Even as per his defence, the petitioner has given a blank cheque and the holder is having the authority to complete the document. Therefore, I am of the view that the said judgment is not applicable to the facts of the present case.

The learned counsel for the revision petitioner also relied upon the judgment reported in Vijayamma Vs. P. Palani, , but the said case relates to find out the truth as to which one is written first and which one is written next and not to ascertain the age of the ink. The said judgment is also not applicable to the facts of the present case, because, as already stated, the age of the ink cannot be ascertained, as there is no mechanism available to ascertain the age of the ink.

Further, by way of reply notice, the petitioner/accused is disputing that he has not issued any cheque in favour of the respondent/complainant. In such circumstances, it is the duty of the petitioner to prove that the cheque has not been issued to her. Since the revision petitioner has not disputed his signature, I am of the view that the Trial Court, after considering all the aspects in proper perspective and after considering the decisions relied upon by the revision petitioner, came to the correct conclusion. The application has been filed only with a view to drag on the proceedings. As such, I do not find any reason to interfere with the same. Hence, the revision deserves dismissal and accordingly, it is, hereby, dismissed. Consequently, the connected miscellaneous petitions are also dismissed.