Madras High Court
V.Makesan vs T.Dhanalakshmi on 3 February, 2010
Author: S.Nagamuthu
Bench: S.Nagamuthu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2010
CORAM:
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Criminal Revision Case No.627 of 2008
and
M.P.No.1 of 2008
V.Makesan .. Petitioner
Vs.
T.Dhanalakshmi .. Respondent
* * *
Prayer : Criminal Revision Case is filed under Section 397 read with 401 of Cr.P.C. to set aside the order of the District and Sessions Judge, Fast Track Court No.III, Coimbatore, and to direct the trial court to send the cheque for chemical test to find out the age of the ink in the signature and other writings in the columns of the cheques.
For Petitioner :: Mr.A.Ramesh, Senior Counsel
For Respondent :: No appearance
O R D E R
The petitioner is the complainant in C.C.No.550/2006 on the file of the learned Judicial Magistrate No.II, Pollachi and the respondent is the accused. This case is instituted on a private complaint given by the petitioner for an alleged offence said to have been committed by the respondent punishable under Section 138 of the Negotiable Instruments Act. The respondent has been defending the case mainly contending that the cheque was not issued by him as on the date mentioned in the cheque. In order to substantiate the said contention, the respondent filed C.M.P.No.3431/2007 before the learned Magistrate requesting him to send the said cheque for expert opinion for the purpose of ascertaining the age of the writings and the age of the ink used for the writing. The learned Magistrate dismissed the said petition. Challenging the same, the respondent herein filed a revision before the learned Sessions Judge/Fast Track Court No.III, Coimbatore in Crl.R.C.No.153/2007. By an order dated 5.3.2008, the learned Sessions Judge set aside the order of the learned Magistrate and directed to send the document for such opinion. Aggrieved over the same, the petitioner is before this Court with this revision.
2. Though notice has been served on the respondent and her name has been printed in the Cause List, the respondent has not made appearance before this Court. It appears that the respondent is not interested in prosecuting the matter. In view of the same, I proceed to decide the same on hearing the argument of the learned Senior Counsel appearing for the petitioner and by perusing the records available.
3. The learned Senior Counsel would submit that there is no expert available in terms of Section 45 of the Indian Evidence Act, who would be in a position to offer any opinion in respect of the age of the ink. For this purpose, the learned Senior Counsel for the Petitioner relied on a judgment of the Honourable Supreme Court by a quorum of six Honourable Judges wherein in paragraph Nos.8 and 9 of the judgment, the Honourable Apex Court has held that it is not at all possible.
4. The learned Senior Counsel would also rely on a judgment of this Court in Jagadesan Vs. N.Ayyasamy reported in 2010(1) CTC 424. In the said case, I had an occasion to call the Assistant Director of Forensic Sciences Department, Document Division, Chennai to inform the Court as to whether there is any expert available in the State who can offer any opinion about the age of the ink and the writings. Accordingly, he appeared before this Court and informed that there is no such expert and as a matter of fact, all the documents which were received for ascertaining the age of the ink and the writings were simply returned with a letter that it is not possible to offer any opinion.
5. Based on the same, I have dismissed the request of the accused in that case. The learned Senior Counsel would submit that the present case falls within the said parametres. The learned Senior Counsel would also rely on the decision in Union of India Vs. Jyoti Prakash reported in AIR 1971 SC 1093 wherein in para 10 of the judgment, the Honourable Supreme Court has held 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 possible 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".
6. The learned Senior Counsel also relies on the decision in Yash Pal Vs. Kartar Singh reported in AIR 2003 P& H 344. Yet another decision of this Court by the learned Single Judge is in S.Gopal Vs. D.Balachandran reported in 2008(1) MLJ 769. In this case also, similar view has been taken.
7. A perusal of all the above judgments would go to clearly indicate that as of now, there is no expert in terms of Section 45 of the Indian Evidence Act available who could be in a position to offer any opinion regarding the age of the ink by adopting any scientific method. In view of all the above, I am inclined to interfere with the order of the learned Sessions Judge, Fast Track Court No.III, Coimbatore.
8. In the result, the revision is allowed and the impugned order of the learned Sessions Judge is set aside and the order of the learned Judicial Magistrate No.II, Pollachi is restored. Consequently, connected Miscellaneous Petition is closed.
03.02.2010 Index : Yes/No Internet:Yes/No tsi To
1. The District and Sessions Judge, FTC.No.III, Coimbatore.
2. The Judicial Magistrate No.II, Pollachi S.NAGAMUTHU,J.
tsi Crl.R.C. No.627/2008 03.02.2010 Crl.R.C.No.53 of 2010 Dt.19.01.2010 01.02.2007