R. Dennis Raja vs T. Subbiah

T. Sudanthiram, J.—This Criminal Revision Petition is preferred against the Order dated 11.06.2008 made in Crl. M.P. No. 1687 of 2007, on the file of the learned Additional District Munsif, Thoothukudi. The Revision Petitioner herein is the complainant in S.T.C. No. 179 of 2007, on the file of the learned Additional District Munsif, Thoothukudi and the respondent herein is the accused. The petitioner filed a complaint against the respondent herein for an offence u/s 138 of the Negotiable Instruments Act, 1881. Pending trial, the respondent herein filed a Criminal Miscellaneous Petition in Crl. M.P. No. 1687 of 2007 u/s 243 (2) of the Code of Criminal Procedure with a prayer to send the documents, i.e., Exs. P2 to P9, to the Handwriting and Finger Prints Expert to find out the age of the signature, age of the writings in the body of the cheques, age of the signature of the petitioner/accused in the letter-head papers, age of the computerized written matter in Ex-P2 and to compare the signature of PW-3 with a specimen signature obtained from him in the Court and also with the signatures in the depositions.

The said Miscellaneous Petition was allowed by the learned Additional District Munsif, Tuticorin. Aggrieved by the said Order, the petitioner herein has come forward with the present Criminal Revision Petition.

Notice was ordered to the respondent herein and the notice sent by this Court to the respondent has been served on 14.07.2008. Despite the same, the respondent neither appeared before this Court nor represented by any of the counsel.

The learned counsel appearing for the petitioner submitted that originally the case was filed in the year 2003 as C.C. No. 350 of 2003 on the file of the learned Judicial Magistrate No. I, Tuticorin and subsequently, it has been transferred to the file of the learned Additional District Munsif, Tuticorin. The respondent herein has not denied the signatures found in the cheques and also in Ex-P2. But, the case of the accused is that signed blank cheques and letter-head papers have been misused by the complainant. Admittedly, the writings are not in the own handwriting of the accused. After lapse of seven years, by sending the above documents for comparison, no useful purpose would be served. The learned counsel for the petitioner further submitted that PWs-2 and 3 have been cross-examined at length by the defence and the accused has to be questioned u/s 313 of the Code of Criminal Procedure. Only in order to procrastinate the proceedings, the respondent has filed the above Miscellaneous Petition seeking to send the documents to the Handwriting Expert. However, without sufficient reasons, the learned Additional District Munsif had allowed the said Miscellaneous Petition.

This Court has considered the above submissions made by the learned counsel appearing for the petitioner and perused the records carefully.

According to the accused, the complainant has prepared a forged agreement in the letter-head signed blank papers and the cheques, Exs-P2 to P9, also contained the seal with the signatures of the accused, and later, it was filled up by the complainant. Even as per the affidavit filed in support of the petition by the accused before the Trial Court, the accused had admitted his signatures in Exs-P2 to P9. Further, according to the accused, the signatures of PW-3, who stood as a witness to Ex-P2, differs from the specimen signature obtained from PW-3 in the Court at the time of cross-examination. The prayer made by the accused in his Miscellaneous Petition was only to find out the age of the signature, age of the writings in the body of the cheques, age of the signature of the petitioner/accused in the letter-head papers, age of the computerized written matter in Ex-P2 and to compare the signature of PW-3 with a specimen signature obtained from him in the Court and also with the signatures in the depositions. The learned Judicial Magistrate had allowed the above Miscellaneous Petition stating that though the accused had admitted his signatures in the document, in order to find out the time gap between the period of the signatures of the accused and the matters typed in Ex-P2, the respondent herein sought for expert opinion and by sending the documents to the expert opinion, no prejudice would be caused to the petitioner herein.

According to the complainant, Exs-P2 to P9 were all executed in the year 2002 and the complaint before the Lower Court has also been filed in the year 2003. Therefore, all the matters in Exs-P2 to P9 were made prior to the year 2003. Now, after lapse of seven years, it is not at all possible for a Handwriting Expert to give an opinion meticulously as to which part of the document is seven years old and as to which part of the document is eight or nine years old. The opinion of the handwriting expert will not be in any manner helpful to the Court to decide the issue. Ex-P2 has been signed by both PWs-2 and 3 as witnesses. However, the accused wants the signatures of PW-3 alone to be compared and not the signatures of PW-2.

In similar circumstances, this Court in S. Gopal Vs. D. Balachandran, has held as follows :-

Following the aforesaid ratio, this Court has also held in P.R. Ramakrishnan v. P. Govindarajan, 2008(1) R.C.R. (Criminal) 33:2007(1) MLJ (Crl) 1297, that when the accused disputes his signatures in the cheques in question in a proceeding u/s 138 of the Negotiable Instruments Act, the Court has to afford an opportunity to the accused to obtain an expert''s opinion as to the genuineness or otherwise of the signature found therein. The above ratio will not apply to a case where, a cheque admittedly signed by the drawer is sought to be analysed by an expert for opinion as to the age of the ink used in the cheque.

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 cheques, to fill up the matter, no useful purpose will be served if such a cheque is analysed by the expert for rendering an opinion.

It is found that the age of the ink cannot be determined by an expert with scientific accuracy. Further, the use of the old ink manufactured long ago will definitely create a dent in the opinion furnished by an expert. Therefore, there is no necessity for sending the disputed cheque admittedly signed by the petitioner to an expert for his opinion. The Order passed by the learned Judicial Magistrate No. I, Erode in C.M.P. No. 2915 of 2007 in C.C. No. 1287 of 2006 does not suffer from any illegality or impropriety. Therefore, there is no warrant for interference with the well considered order passed by the Trial Court.

In view of the above, this Court feels that the Order of the learned Additional District Munsif needs interference. Therefore, the order dated 11.06.2008 made in Crl. M.P. No. 1687 of 2007, passed by the learned Additional District Munsif, Thoothukudi, is set aside and this Criminal Revision Petition is allowed. The Trial Court is directed to expedite the trial. Consequently, connected Miscellaneous Petition is closed.