Madras High Court
R.Tharmambal vs V.Christopher Moni Prakash on 18 December, 2012
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/12/2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.R.C.(MD)No.457 of 2012 R.Tharmambal ... Petitioner Vs V.Christopher Moni Prakash ... Respondent PRAYER Criminal Revision Petition filed under Sections 397 read with and 401 (1) of Cr.P.C., to call for records and set aside the order passed in C.M.P.No.620 of 2012 in C.C.No.54 of 2012 dated 12.07.2012 by the Judicial Magistrate (Fast Track Court) No.II, Nagercoil. !For Petitioner ... Mr.S.C.Herold Singh ^For Respondents... Mr.Issac Mohanlal :ORDER
The Revision Petitioner has preferred the instant Criminal Revision Petition as against the order dated 12.07.2012 in Cr.M.P.No.620 of 2012 in C.C.No.54 of 2012 passed by the Learned Judicial Magistrate No.II (Fast Track Court) Nagercoil.
2.The Learned Judicial Magistrate No.II (Fast Track Court) Nagercoil, while passing the orders in Cr.M.P.No.620 of 2012 on 12.07.2012, has among other things observed that the Private Complaint case now is pending for arguments and also that the Petitioner/Accused side has not filed re-open petition and in the absence of any reply and also not let in any evidence and also at the time of Court putting the questions, not raising the point and only at the time of cross examination of P.W.1, the same being raised by the petitioner shows his ulterior motive to prolong the case etc. and resultantly dismissed the petition without costs.
3.The Learned counsel for the Petitioner/Accused urges before this Court that the Trial Court should have seen that the Petitioner/Accused filed Cr.M.P.No.620 of 2012 for the purpose of obtaining an Expert's opinion in terms of Section 45 of the Indian Evidence Act, 1872 and also that the defence of the Petitioner/Accused is that at no point of time, he issued the cheque in question which has not been taken note of by the Trial Court in a proper and real perspective.
4.Yet another plea taken on behalf of the Petitioner/Accused is that the delay in filing of Cr.M.P.No.620 of 2012 will not in any way take away the right of the Petitioner/Accused inasmuch as no finality has been reached in the matter.
5.That apart, the Learned counsel for the Petitioner/Accused projects an argument that the Respondent/Complainant during evidence has categorically stated that the Petitioner/Accused put his signature on the cheque in front of him and in fact, at no point of time, the petitioner has signed the cheque and issued the same to the Respondent/Complainant.
6.Advancing his arguments, the Learned counsel for the Petitioner/Accused vehemently contends that the question of Legally Enforceable Debt could be proved only by analysing documents in the manner known to law and also that the denial of opportunity to the Petitioner/Accused in rebutting her case, indeed amounts to unfair Trial.
7.To lend support to the contention that petition to refer cheque to Forensic Expert to ascertain age of ink etc. can be allowed by Court of Law, the Learned counsel for the Petitioner/Accused cites the decision of this Court in A.Sivagnana Pandian V. M.Ravichandran reported in (2011) 2 MLJ (Crl) 595 and 596, wherein, it is held as follows:
"Since various scientific avenues are available for finding out the age of the ink in a document, it must be subjected to tests as suggested by various scientists. This Court follows the ratio in the decisions in Kalyani Baskar V. M.S.Sampoornam (2007) 1 MLJ (Crl) 1020 case and T.Nagappa V. Y.R.Mudaliar (2008) 2 MLJ (Crl) 956 case above, and direct to refer the disputed document to such examination in order to provide an opportunity to the accused, when a good material is available, to rebut the presumption as per law, by non-destructive method in this regard.
If the expert concerned considers that such examination would destruct a part of the document or the document itself, they may report the fact before the Court and the Court thereafter shall pass further orders for the proof of the facts on the basis of pleadings and other evidence.
In this situation, it is also regarded that it is the view of the Supreme Court that some delay in taking steps for referring the document to the wisdom of the expert cannot be a legal embargo for entertaining the plea.
8.He also relies on the decision of the Hon'ble Supreme Court in Kalyani Baskar V. M.S.Sampoornam reported in 2007(2) CTC 364, wherein, it is interalia held that "....... adducing evidence in support of defence is available right and the denial of that right means denial of fair trial and that the Magistrate should have granted request for sending cheque in question for opinion of handwriting expert after respondent has closed evidence unless he thinks that object of appellant is vexatious or delaying the criminal proceedings."
9.The Learned counsel for the Petitioner/Accused invites the attention of this Court to the decision in Vairamani V. K.Chidambaram reported in 2012(1) MWN (Cr.) (DCC) 68 (Mad.), wherein, this Court among others observed and held that "... Therefore, difference in ink found in signature of Petitioner and other contents in cheque has to be ascertained by an expert and that the scientific methods are available to ascertain age of ink etc.". Also in the said decision, it is held that if any good material is available to Accused to rebut presumption, he should not be denied opportunity to establish the same.
10.Per contra, the Learned counsel for the Respondent/Complainant submits that originally the case was taken on file in S.T.C.No.71 of 2010 on the file of the Learned Judicial Magistrate No.1, Nagercoil and subsequently, it was taken on file in C.C.No.54 of 2012 by the Learned Judicial Magistrate No.2 (Fast Track Court), Nagercoil and the examination of prosecution witnesses was over in the main case on 25.10.2010 and from 25.10.2010 till 20.06.2012, the main case has been posted for evidence on the side of the Revision Petitioner/Accused and upto 20.06.2012 no Miscellaneous Petition was filed by the Petitioner, praying for issuance of an order by the Trial Court to send the cheque for examination by an Expert and only on 28.06.2012, when the matter was posted for arguments, the Petitioner/Accused filed the petition under Section 45 of the Indian Evidence Act, 1872 and even at the time of 313 Cr.P.C. examination, the Petitioner/Accused had not raised any objection or moved his little finger in regard to the age of the ink in the cheque in question and also, he had not filed any re-open petition to re-open the case and in the present Criminal Revision Case, no stay was granted.
11.It is the main contention of the Learned counsel for the Respondent/Complainant that Ex.P3, the cheque issued by the Petitioner/Accused got returned with an endorsement from the bank as 'in sufficient funds' on 16.02.2010 and the present Criminal Miscellaneous Petition filed by the Petitioner/Accused was filed before the Trial Court only to precipitate the pending proceedings in the main case, which admittedly is in part-heard stage.
12.The Learned counsel for the Respondent/Complainant takes a fervent plea that the Petitioner/Accused had admitted his signature and also that there is no Expert available in our country to examine the age of the ink or the writings in question as sought for by the Petitioner/Accused and inasmuch as the Petitioner/Accused had admitted his signature, the Cr.M.P.No.620 of 2012 filed by him is only an extravagant or a luxurious one, which is not maintainable in Law.
13.The Learned counsel for the Respondent/Complainant cites the decision of the Hon'ble Supreme Court in L.C.Goyal V. Suresh Joshi (Mrs.) and Others reported in (1999) 3 Supreme Court Cases 376 at 382, in para 10, it is observed as follows:
"The complainant sent two notices on behalf of M/s.Siemens Union to the appellant wherein she inter alia alleged that a sum of Rs.25,102 was misappropriated by the appellant under the pretext of payment of the court fee for the suit filed by the plaintiffs, that the appellant did not press the application for injunction and that the appellant misled the complainant as regards the progress of the case. These notices were not replied to by the appellant which is a material circumstance against the appellant when receipt of the notices sent to him have been admitted.
14.Also, in the aforesaid decision, it is held that "opinion of Handwriting Expert was not necessary because other facts shown that the signature was of the Appellant and further opined that the established circumstances in this case spoke for themselves and candidly pointed towards appellant's misconduct. Moreover, at page No.378, it is laid down as follows:
"The circumstances established in the present case speak for themselves and candidly point out towards the misconduct committed by the appellant. When established circumstantial evidence is so patent, it leads to only conclusion that the signature on the cheque was not forged: there was no need for an opinion of handwriting expert. The Court is therefore satisfied that the established circumstantial evidence as well as the documentary evidence in the present case show that the allegations of the complaint were well substantiated and in such circumstances of the case, the Bar Council of India was justified in declining to summon handwriting expert for finding out the genuineness of signature on cheque."
15.He also seeks in aid of the decision in R.Jagadeesan V. N.Ayyasamy and another reported in 2010(1) CTC 424, wherein, it is held that "Court should first ascertain whether or not particular individual is expert in particular field for particular purpose before seeking opinion of such expert". Also, it is held that "it is for the Court to first of all take a decision as to availability of expert." Furthermore, a direction has been issued not to send documents henceforth unless new methods are invented to find out age of writings was issued.
16.Yet another decision of this Court is relied on on the side of the Respondent/Complainant in K.Vairavan V. Selvaraj reported in 2012 (5) CTC 596, wherein, it is held that no such Expert is available in India to determine the age of ink on document and also it is categorically laid down that the application by the Revision Petitioner for forwarding document to ascertain age of ink is only an afterthought to drag on the proceedings."
17.Also, the Learned counsel for the Respondent/Complainant cites the decision of this Court in V.Srinivasan V. E.S.Gunasekar reported in 2009(2) CTC 65 and 66, wherein, it is held as follows:
"P.W.1 was not even cross-examined on this point. In the impugned order it has been stated that the case was repeatedly adjourned on the ground of settling the dues. The signature in the cheque has not been disputed. Therefore, the presumption is that such signature has been assigned only after knowing the contents. Merely because there is a different handwriting in the cheque, mechanically, without application of mind, at a belated stage, such a defence cannot be taken. The precedents relied on by the petitioner are not applicable to the case on hand, since it is apparent that such a defence and prayer has been made at a belated stage, only to drag on the proceedings."
18.In Cr.M.P.NO.620 of 2012, the Petitioner/Accused has averred that she has issued two blank cheques to one Kannan for existing previous debt of Rs.25,000/- only putting signature in the cheques and further he has not written the date, amount and name of the Complainant in the concerned cheques and the Respondent/Complainant has written the date, amount and his name with evil motivation and therefore, his request to send the cheque to the Forensic Department for ascertaining the age and difference of ink used in the cheque and also ascertaining the different of handwriting used in the cheque. Also, when the Respondent/Complainant has been cross-examined, he has deposed that he is ready to send the cheque pertaining to ink for obtaining an Expert Opinion.
19.In the counter to Cr.M.P.No.620 of 2012 filed by the Respondent/Complainant, it is stated that the Petitioner/Accused has not disputed his signature or anything in the cheque and further, he has been given many opportunities right from the inception of the case for three years to defend and that the Petitioner, instead of advancing his arguments, has come out with the Miscellaneous Petition to delay the proceedings.
20.It is to be pointed out that in commercial practice, a cheque is considered as a payment, if a Creditor accepts the same instead of monetary sum. As per Section 20 of the Negotiable Instruments Act, 1881, an individual is authorised to complete the inchoate instrument deliver to him by filling up the blanks. No doubt, the said statutory right is coupled with interest. As a matter of fact, the death of a person/Executant giving authority cannot affect the right in any manner, in the considered opinion of this Court. In Law, even an inchoate stamp instrument cannot be rejected based on the reason that as per Section 93 of the Indian Evidence Act, 1881 filling up of a blank is impermissible. Moreover, a blank cheque could be filled up by the 'Holder thereof', which will be a valid instrument in the eye of Law. If a blank cheque is issued by a Drawer, after signing, then Section 20 of the Negotiable Instruments Act, will not apply, as opined by this Court. A cheque under proviso (a) of Section 138 of the Negotiable Instruments Act is to be presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. In order to make person other than the Payee, a 'Holder in Due Course of cheque' payable to order there shall be an endorsement in his favour and delivery of cheque. It is not open to an accused in a presumption under Section 138 of the Negotiable Instruments Act to let evidence that he had reasonable cause for issuing the cheque of the character mentioned in Section 138 of the Negotiable Instruments Act. Such a defence is excluded by Section 140 of the Act.
21.The issue whether the 'Holder of a cheque' can present the cheque after lapse of some years by placing reliance upon Section 20 of the Negotiable Instruments Act in and by which, it is a barred one can very well be agitated before the Trial Court and appreciated by it, based on oral and documentary evidence to be let in by the concerned parties.
22.Admittedly, the words 'may presume' under Section 4 of the Indian Evidence Act specifies that whenever it is provided by the said Act, a Court of Law may presume a fact. As per Section 118 of the Negotiable Instruments Act, there is a presumption in law that the document is supported by consideration. The onus lies on the Accused to establish that what is apparent on the document is not a true one.
23.Originally, if the execution of pronote is admitted, the presumption as per Section 118 (a) of the Negotiable Instruments Act arises. The said presumption is a rebuttable one either by circumstantial evidence or presumption of fact drawn as per Section 114 of the Indian Evidence Act. Section 139 of the Negotiable Instruments Act, provides for early presumption in favour of the Complainant unless the contrary is proved.
24.The presumption under Section 138 of the Negotiable Instruments Act is a rebuttable one. The onus of proving that the cheque has not been issued for a Debt or Liability is on the particular Accused. The Drawer has to prove during the course of Trial of the case by letting in cogent and acceptable evidence in this regard.
25.The ingredients of Section 20 of the Negotiable Instruments Act are not attracted as a matter of routine. But, these all things are to be looked into by the Trial Court by the parties adducing evidence, before holding as to the applicability of Section 20 read with Section 118 of the Negotiable Instruments Act. The concept of 'burden of proof' should be applied properly in a proper manner.
26.Of course, an opinion of a Hand Writing Expert is a relevant fact and the same is admissible in evidence. There is no two opinion of the fact that a Judge is not supposed to possess the expert knowledge in such matters. The opinion offered by an expert as per Section 45 of the Indian Evidence Act can be treated as a relevant one under the Indian Evidence Act. It is the utmost duty of a Court of Law to see to ensure whether there is any reasonable and genuine case made out by a litigant seeking the aid of Law for obtaining an opinion of an Expert so as to send the cheque for ascertaining the age of the ink in signature and other contents in the cheque etc.
27.In this connection, this Court points out that Section 243 of Cr.P.C. enjoins that a valuable right is given to the Accused to examine defence witnesses. If the Petitioner/Accused is desirous of examining an Expert and to obtain his opinion in the subject matter in issue, then it is open to him to examine the said Expert in accordance with law. The valuable right given under Section 243 of Cr.P.C., is certainly not within the purview of investigation and would admit of no restriction except where the Learned Judicial Magistrate is satisfied for the reasons to be recorded in writing that the desired exercise is purely a vexatious or frivolous one or with a view to delay the pending proceedings or to defeat the ends of justice.
28.It cannot be denied that the admission of signature in the cheques alone will not establish the offence under Section 138 of the Negotiable Instruments Act without proving the other ingredients. One such ingredient is that the cheque is drawn/has been drawn for the 'Discharge of a Debt or other Liability'.
29.In this regard, this Court pertinently worth recalls the decision of the Hon'ble Supreme Court in Union of India V. Jyoti Prakash Mitter reported in AIR 1971 SC 1093 at 1098 to 1100, in paragraph Nos.10 to 12, it is observed as follows:
"10.After consultations between the Ministry of Home Affairs and the Ministry of Law, the Home Ministry sent certain old writings of the year 1904, 1949, 1950 and 1959, and requested the Director to determine the age of the writing of the disputed horoscope and marginal note in the almanac by comparison. The Director on April 17, 1965 wrote that it "was impossible to give any definite opinion by such comparisons particularly when the comparison writings were not made with the same ink on similar paper and not stored under the same conditions as the documents under examination", and that it "will not be possible for a document expert, however reputed he might be, anywhere in the world, to give any definite opinion on the probable date of the horoscope and the ink writing in the margin of the almanac".
11.After receiving the second report from the Director, the Ministry of Law raised the question about the opportunity to be given to the respondent before the President in the enquiry for determining the age of the respondent under Art. 217 (3) . It was then decided to refer the question to the Chief Justice of India for his advice. On July 24, 1965 the Chief Justice of India advised the President about the procedure to be adopted in the determination of the age of the respondent. Thereafter pursuant to a suggestion made by the Law Minister the Ministry of Home Affairs wrote to the respondent on July 31, 1965 requiring him to state the date or year of the horoscope. The respondent by his letter dated August 4, 1965, stated that it was not possible for him to give definitely the date or year of the horoscope but he asserted that it was at least in existence in the year 1921 when it was consulted on the occasion of his marriage. On February 23, 1965 the respondent addressed a telegram to the President requesting that an early decision of the question of his age may be reached. On March 15, 1965 he addressed another telegram to the President requesting leave to produce other documentary evidence which he claimed may be available in East Pakistan, but sometime thereafter he informed the Secretary, Ministry of Home Affairs, that owing to lack of co-operation on the part of the people in East Pakistan it was not possible to get the evidence which was mentioned in his letter to the President and that he must content himself with the evidence he had already produced and which in his view was "overwhelming". He further stated :
"You can, therefore, take it that I have no evidence to produce on the subject of my age, unless I am driven to call an expert or experts as indicated by me in my letter to you, dated 3rd February, 1965".
On August 13, 1965, copies of the reports of the Director of the Forensic Science Laboratory were forwarded by the Home Secretary to the respondent with a forwarding letter by which the respondent was informed that if he had any comments to make on the opinion expressed by the Director they may be submitted and that if the respondent desired he may also adduce evidence in rebuttal in the form of expert opinion supported by proper affidavit, and that the comments, evidence and affidavits, if any, may be sent within one month of the letter. On receipt of the letter of the Home Secretary the respondent sent a telegram addressed to the Home Secretary on September 1, 1965, praying that the President may call for all papers and documents, if not already sent for and grant him an audience, "If at all necessary". The respondent also wrote a letter on that day submitting that the evidence tendered by him was "conclusive" and there was no question of adducing any further evidence or any evidence in rebuttal. He also submitted that the entry in the Bihar and Orissa Gazette (declaring him successful at the matriculation examination) was erroneous and concluded the letter that all relevant documents be placed before the President, and that the President "may be graciously pleased to grant "him" an audience for the purpose of deciding the question of his age".
12.The file of the respondent's case was then submitted to the President. On September' 16, 1965 the President referred the matter to the, Chief Justice of India asking him for his advice. On September 28, 1965 the Chief Justice recommended that the age of the respondent be decided on the basis that the respondent was born on December 27, 1901. The Chief Justice set out in detail all the evidence including the reports of Dr. Iyengar, Director of the Central Forensic Science Laboratory, Calcutta bearing on the dispute as to the true date of birth of the respondent. The Chief Justice of India thereafter observed :
".......... the question which the President has to decide is whether the date of Mr. Mitter's birth mentioned on the occasions when he appeared for the Matriculation Examination as well as for the Indian Civil Service Examination, is incorrect; and that would naturally turn upon whether it is shown that the entry in ink on the margin of the almanac showing that Mr. Mitter was born on 27-12-1904, was contemporaneously made and is correct as alleged by him. The horoscope on which Mr. Mitter relies, refers to the date and time of his birth, but that does not help Mr. Mitter very much, because it is obviously based upon information given to Jyotish-Sastri Shri Jogesh Chandra Deba Sarma on the basis of the entry in the almanac. I have carefully considered the reports made by Dr. Iyengar, the comments on them made by Mr. Mitter, the affidavits on which Mr. Mitter relies, and the almanac and the horoscope on which he bases his case. I have also taken into account all the other relevant facts relating to the past history of this dispute, the conduct of Mr. Mitter, the grounds on which he challenged the earlier orders passed in this matter, and I have come to the conclusion that it is not shown satisfactorily that the entry in ink on the margin of the almanac was made contemporaneously and is correct as alleged by Mr. Mitter. I am, therefore, unable to accept his case that the date of his birth which was shown at the time when he appeared for the Matriculation Examination as well as for the I.C.S. Examination "was exaggerated".
I would, therefore, advised the President to hold that Mr. Mitter has failed to show that he was born on 27-12-1904 and not on 27-12-1901; and that the question about his age should be decided on the basis that be was born on 27-12- 1901".
The file containing the advice was then returned to the Pre- sident. It appears however that after the file was received in the President's Secretariat, it was sent to the Secretary, Ministry ofHome Affairs for putting it up before the Home Minister before submitting it to the President. The Home Secretary on September 29, 1965 put up the matter before the Home Minister with the following endorsement :
"A summary of the case will be found at slip 'Z'. The Chief Justice of India has offered his advice in his minute........ after going into the relevant material, H.M. (Home Minister) may recommend to the President ,that the age Shri J. P. Mitter may be determined in accordance with the advice of the Chief Justice of India."
Home Minister and the Prime Minister countersigned that endorsement. The file was then placed before the President on the same day i.e. September 29, 1965. The President recorded his decision that he accepted "the advice tendered by the Chief Justice of India and "decided" that the age of Sri Jyoti Parkash Mitter should be determined on the basis that he was born on the twenty-seventh December nineteen hundred and one".
30.Also, this Court aptly point out the decision in Yash Pal V. Kartar Singh reported in AIR 2003 Punjab and Haryana 344, wherein, in paragraph No.5 observed as under:
"A perusal of the aforementioned provision shows that a discretion has been vested in the Civil Court to get any scientific investigation conducted only if it thinks necessary or expedient in the interest of justice. The basic rationale of the provision is that if the opinion of the scientific investigation is going to help in extracting the truth and determining the controversy raised in the dispute before the Court then such an investigation could be permitted. However, in the present case, such investigation is not likely to help to conclusively prove that the writing dated 11.2.1998 was infact recorded earlier because the age of the ink cannot be determined on the basis of the writing. If the ink is manufactured five years before the date of the execution of the document and used on 11.2.1998 for the first time then instead of resolving any controversy it would create confusion. Therefore, no useful purpose could be served by allowing such an application. It is true that opinion of expert is relevant under Sections 45 and 46 of the Indian Evidence Act, 1872 but in the present case that has to be read with Order 26. Rule 10 A of the Code. The basis rationale is whether such scientific investigation is going to advance the cause of justice and would be necessary for adjudicating upon the rights of the parties. Therefore, I do not find any ground to interfere in the well reasoned order passed by the learned Civil Judge. The revision petition does not disclose any irregularity or illegality warranting interference of this Court in exercise of its jurisdiction under Section 115 of the Code."
31.In view of the observations of the Honourable Supreme Court in Union of India V. Jyoti Prakash Mitter reported in AIR 1971 SC 1093 at 1098 to 1100, as stated supra and also as per the observations held in Yash Pal V. Kartar Singh reported in AIR 2003 Punjab and Haryana 344, this Court comes to an inescapable conclusion that the request of the Petitioner/Accused in Cr.M.P.No.620 of 2012 to refer the Cheque dated 15.02.2010 to the Forensic Department for ascertaining the age and difference of ink used in cheque and difference of handwriting used in the cheque etc., cannot be acceded to by this Court, since the said plea/request made by the Petitioner is a futile and otiose one. Also the Petitioner/Accused has filed Cr.M.P.No.620 of 2012 only on 28.06.2012 and in fact, the evidence of witnesses on the side of the Respondent/Complainant (P.Ws) was completed on 25.10.2010 and also even during 313 of Cr.P.C. questioning, the Petitioner/Accused has not raised the issue of ascertaining the age and difference of ink used in the cheque and difference of handwriting used in the cheque etc., thereby to examine the same by an Expert.
32.Although Section 243 of Cr.P.C. speaks of the Accused being called upon to enter upon his evidence and produced his evidence and as per Section 243(2) of Cr.P.C., the Petitioner/Accused have entering upon his defence, if he applies to the Magistrate to issue any process for compelling the attendance of any witnesses for the purpose of examination or cross examination or production of any documents or other things, the Learned Judicial Magistrate is a competent to issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
33.In the instant case, the Petitioner/Accused has not raised the plea at the earliest point of time in regard to the age of the ink and difference of handwriting in the cheque etc., when he has been questioned under Section 313 Cr.P.C. proceedings. In any event there is no method to find out the age of the document with scientific accuracy. Furthermore, it is clearly held in the decision in R.Jagadeesan V. N.Ayyasamy and another reported in 2010(1) CTC 424, that "as a matter of fact, the Assistant Director would inform the Court that already many such documents, which were sent to them by various Courts in the State for such opinion, have been returned by them with the report that no such opinion could be offered".
34.Looking at from any angle, Ex.P1 cheque dated 15.02.2010 bounced back owing to the reasons of (i) insufficient funds (2) Payee's Endorsement irregular as per Memorandum of Union of Bank of India, Nagercoil Branch dated 16.02.2010. Furthermore, this Court holds that the age of the ink cannot be determined on the basis of writing as per the decision in Union of India V. Jyoti Prakash Mitter reported in AIR 1971 SC 1093 at 1098 to 1100 and as per the decision in Yash Pal V. Kartar Singh reported in AIR 2003 Punjab and Haryana 344 as stated supra.
35.Viewed in that perspective, the order passed by the Learned Judicial Magistrate No.2, (Fast Track Court), Nagerocil in Cr.M.P.No.620 of 2012 dated 12.07.2012, in rejecting the request of the Petitioner to send Ex.P1, cheque dated 15.02.2010 for obtaining an Expert opinion from the Forensic Science Department to ascertain the age and different of ink used in the cheque etc., does not suffer from any impropriety or illegality in the eye of law. Consequently, the Revision Petition is devoid of merits.
36.In the result, the Petition is dismissed. However, since the main case in C.c.No.54 of 2012 is pending on the file of the Learned Judicial Magistrate No.2 (Fast Track Court), Nagercoil at the part-heard stage, this Court on the basis of Equity, Fair Play, Good Conscience and even as a matter of prudence, directs the Learned Judicial Magistrate NO.2, Fast Track Court, Nagercoil, to dispose of the case in C.C.No.54 of 2012 within a period of three months from the date of receipt of a copy of this order and to report compliance to this Court without fail.
Arul To
1.The Judicial Magistrate No.II, Fast Track Court, Nagercoil.