Madras High Court
Pandian vs M.Kamalakannan on 6 December, 2012
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/12/2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.R.C.(MD)No.376 of 2012 and M.P.(MD) No.1 of 2012 Pandian ... Petitioner Vs M.Kamalakannan ... Respondent PRAYER Criminal Revision Petition filed under Sections 397(1) read with and 401 of Cr.P.C., to call for the records of the Judicial Magistrate, Periyakulam in Cr.M.P.No.3069 of 2012 in S.T.C.No.235 of 2008 and set aside the order dated 24.07.2012. !For Petitioner ... Mr.P.Senguttuarasan ^For Respondents... Mr.D.Nallathambi :ORDER
The Petitioner/Complainant has projected the instant Criminal Revision Petition as against the order dated 24.07.2012 in Cr.M.P.No.3069 of 2012 in S.T.C.No.235 of 2008, passed by the Learned Judicial Magistrate, Periyakulam.
2.The Learned Judicial Magistrate, Periyakulam, while passing the order dated 24.07.2012 in Cr.M.P.No.3069 of 2012, has among other things observed that the age of the ink of the letters found in the Cheques concerned in S.T.C.No.235 of 2008 is to be found out with that of the admitted signatures of the Petitioner/Accused and resultantly allowed the Petition, praying for sending the Cheques for examination and obtaining the opinion of the Expert, filed under Section 45 of the Indian Evidence Act.
3.Assailing the correctness of the order dated 24.07.2012, passed by the Learned Judicial Magistrate, Periyakulam in Cr.M.P.No.3069 of 2012 in S.T.C.No.235 of 2008, the Learned Counsel for the Petitioner/Complainant submits that the Respondent/Accused earlier filed a Petition under Section 45(A) of the Indian Evidence Act, for obtaining an Expert opinion in the year 2009 before the Trial Court and the same has been dismissed, based on the reason that there are no facilities to verify the ink and script and even the Revision Petition filed by the Respondent/Accused has been dismissed by the Learned Principal District and Sessions Judge, Theni. As such, it is not open to the Respondent/Accused to prefer another Cr.M.P.No.3069 of 2012 before the Trial Court and in this regard, the Trial Court has committed an error in passing an order allowing the Petition.
4.The main contention advanced on behalf of the Petitioner/Complainant is that as against the adverse order passed by the Learned District and Sessions Judge in the Revision Petition, the Respondent/Accused has not taken further steps to question the order passed in the Revision before the Higher Forum, not withstanding the fact he has a remedy to question the same and inasmuch as the earlier order passed by the Trial Court in the earlier Criminal Miscellaneous Petition and the same is being dismissed and later, the Revision preferred before the Learned Principal District and Sessions Judge has been dismissed, those orders have become conclusive, final between the parties and therefore, the Respondent/Accused is estopped or precluded from filing the another Petition in Cr.M.P.No.3069 of 2012 before the Trial Court making the very same prayer once again to ascertain the age of the ink of the letters found in the disputed cheques etc.
5.Per Contra, it is the submission of the Learned counsel for the Respondent/Accused that it is true that the Respondent/Accused has earlier filed a Petition under Section 45 of the Indian Evidence Act, requesting for permission of the Trial Court, to ascertain the age of the ink of the letters found in the disputed Cheques by comparing the same with the admitted signatures of the Accused and after contest, the same has been dismissed by the Trial Court and even the Revision preferred against the order of dismissal passed by the Learned Judicial Magistrate in the earlier Miscellaneous Petition before the Learned District and Sessions Judge has been dismissed and as against the dismissal order passed by the Learned Principal District and Sessions Judge, Theni, no further proceedings admittedly have been taken by the Respondent/Accused.
6.It is the submission of the Learned counsel for the Respondent/Accused that although the Respondent/Accused has not availed the further remedy of approaching the High Court as against the order of dismissal passed by the Learned Principal District and Sessions Judge in the Revision Petition, yet due to change in circumstances viz., in view of the decision in Devaraj V. Rajammal
- 2011-1 L.W.(Crl.) 297 rendered by this Court, wherein, it is held that there is a facility available to ascertain the age of the ink of the letters etc., the Respondent/Complainant has been constrained to file Cr.M.P.No.3069 of 2012 before the Trial Court under Section 45 of the Indian Evidence Act, 1872 and the order passed by the Learned Judicial Magistrate in allowing the said Petition is perfectly valid in Law.
7.It is the contention of the Learned counsel for the Respondent/Accused that the 'principles of Resjudicata' as per Section 11 of Civil Procedure Code are not applicable to the criminal proceedings and to lend support to his contention, he relies on the decision of the Andhra High Court in Crl.P.No.966 of 1999 dated 19.04.2000 between Kondalagutla Chinni Krishnaiah V. State of A.P. represented by Public Prosecutor.
8.The Learned counsel for the Respondent/Accused to fortify his contention that an Accused will have to be provided with a reasonable opportunity cites the decision of the Hon'ble Supreme Court in T.Nagappa V. Y.R.Muralidhar - (2008) 5 Supreme Court Cases 633 at page 634, wherein it is held that "Accused has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India". Also, in the said decision, it is held that regardless of the presumption that can be raised under S.118(a) or 139 of the Negotiable Instrument Act, 1881, an opportunity of rebuttal must be granted to the Accused for adducing evidence.
9.That apart, it is the categorical plea of the Respondent/Accused that 'fair trial' includes fair and adequate opportunities allowed by Law to prove the Accused's innocence and letting in evidence on his side in defence is an indefeasible right.
10.In Cr.M.P.No.3069 of 2012, the Respondent/Accused, as Petitioner, in para 5, has interalia averred that "names, dates and the amounts in the present Cheques were all filled up by the Complainant, only after receiving the notice sent by the petitioner on 22.01.2008. Those particulars have been newly incorporated in the present Cheques. Whereas, this Petitioner/Accused put his signature in the year 2004 itself. In the above said circumstances, it is very essential to examine the age of the ink of the letters written in the Cheques and compare the same with that of the signature of the Accused by Handwriting Expert".
11.In the counter (filed to) in Cr.M.P.No.3069 of 2012, the Petitioner/Complainant has specifically stated that both the Revision Petitioner/Complainant and the Respondent/Accused have let in their oral and documentary evidence in the main case and before the closing the evidence, the Respondent/Accused, as Petitioner, filed a Petition to send the Cheques for Expert opinion under Section 45 of Indian Evidence Act read with Section 254(2) of Cr.P.C. and that the Petition has been dismissed by the Trial Court. Even the Criminal Revision Petition in Crl.R.P.No.15 of 2010 filed against the order of dismissal of the earlier Miscellaneous Petition passed by the Trial has been dismissed by the Learned Principal District and Sessions Judge, Theni. And the said order of dismissal in Crl.R.P.No.15 of 2010 has not been overruled by the Higher Court/Higher Forum as on date. In the main S.T.C.No.235 of 2008 on the file of the Trial Court, arguments on the side of the Revision Petitioner/Complainant has been heard in part. At that point of time, the Respondent/Accused has projected Cr.M.P.No.3069 of 2012 under Section 45 of the Indian Evidence Act, praying for issuance of an order by the Trial Court to direct the Handwriting Expert to ascertain the age of the ink of the letters found in the disputed Cheques etc.
12.The operation of a 'bar of estoppel' relating to the re-litigation of a decided point between the same parties has some exceptions, which may not be confined to factual aspects. It includes within its ambit an error by the Judge, which is subsequently overruled by a Higher Forum. Equally, it is not be just to prevent a party, who has suffered as a result of error from re-opening the issue at a subsequent stage as per the decision in Arnold V. National Westminster Bank, plc reported in (1991) 2 W.L.R. 117 HL. Ordinarily, the party, who has approached other Court is debarred from approaching the other Court/same Court.
13.In the decision in Thoday V. Thoday (1964) All ER 341 at 352, the term 'Cause of Action' is defined. A cause of action estoppel is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a Court of competent jurisdiction in previous litigation between the same parties. If the cause of action as determined to exist, i.e., judgment was given on it, it is said to be merged in the judgment ... If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does, he is estopped per rem judication followed in Barber V. Staffordshire Country Council, (1996) 2 All ER 748 CA.
14.It is to be borne in mind that the earlier Criminal Miscellaneous Petition filed by the Respondent/Accused before the Trial Court under Section 45 of the Indian Evidence Act has been dismissed by the Trial Court, based on the reason that no facility is available to ascertain the age of the ink of the letters. Also, the Criminal Revision Petition No.15 of 2010 projected by the Respondent/Accused has been dismissed by the Learned Principal District and Sessions Judge, Theni on 05.10.2010. The said dismissal order passed in Crl.R.P.No.15 of 2010 has become final, conclusive between the parties and the same is also bind them as per Section 43 of the Indian Evidence Act, in the considered opinion of this Court.
15.In this connection, 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 President. 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".
16.Also, this Court points 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."
17.At this stage, this Court deems it appropriate to cite the decision of this Court in R.Jagadeesan V. N.Ayyasamy (Crl.R.C.49/09) and K.Meignanavel (Crl.R.C.50/09) - 2010-1-L.W.(Crl.)165 at Special Pages 167, 168 and 169, in paragraph Nos.6 to 10, it is observed and laid down as follows:
6. There can be no denial of the fact that the accused needs to be afforded a fair trial to exhaust all his defences available to him. Fair trial is the sine qua non of criminal jurisprudence and the same has been recognised as a fundamental right under Article 21 of the Constitution of India. To prove that the handwriting was not made by him or that the signature was not made by him, the accused can very well request the Court to forward the document for expert opinion. But the question is, in respect of the age of the writings on a document whether there is any expert in terms of Section 45 of the Evidence Act, who shall be competent to examine the same scientifically and to offer his opinion. The term expert denotes, persons specially skilled in the particular field. Under Section 45 of the Evidence Act, it is for the Court to first of all take a decision as to whether a particular individual is an expert in the particular field for a particular purpose. In such a way, if it is found that there is an expert who can find out the age of the writings on a document by means of any scientific method, certainly he would fall within the ambit of Section 45 of the Evidence Act to offer such opinion. But the learned counsel for the petitioner would submit that there is no such scientific method available for offering any such opinion.
"7. In order to ascertain the correctness of the said statement, this Court had requested the learned Additional Public Prosecutor Mr.N.R.Elango to request either the Director or the Assistant Director, Document Division, Forensic Science Department, Chennai to be present before this Court to explain the position. Accordingly, today, Mr.A.R.Mohan, Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu, Chennai is kind enough to be present before this Court. According to him, he is the Head of the document division of the department. On a query made by this Court regarding the above position, he would explain to this Court that there is no scientific method available anywhere in this State, more particularly, in the Forensic Science Department, to scientifically assess the age of any writing and to offer opinion. However, he would submit that there is one institution known as Nutron Activation Analysis, BARC, Mumbai, where there is facility to find out the approximate range of the time during which the writings would have been made. It is a Central Government organisation. According to him, even such opinion cannot be exact. He would further submit that since it is a Central Government Organisation and confined only to atomic research, the documents relating to prosecutions and other litigations cannot be sent to that institution also for the purpose of opinion. He would further submit that if a document is sent for comparison, with the available scientific knowledge, opinion to the extent as to whether the same could have been made by an individual, by comparing his admitted handwritings or signatures, alone could be made. He would further submit that if there are writings with two different inks in the same document, that can alone be found out. But he would be sure enough to say that the age of the writings cannot be found out at all to offer any opinion.
8. In view of the above clear and unambiguous statement made by no less a person than the Head of the Department of Forensic Science, I am of the view that the whole exercise adopted in various Courts in this State to send the disputed documents for opinion to the Forensic Department in respect of the age of the writings and the documents is only futile. If any document is so sent, certainly the department will say that no opinion could be offered. 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.
9. In view of all the above, in my considered opinion, sending the documents for opinion in respect of the age of the writting on documents should not be resorted to hereafter by the Courts unless, in future, due to scientific advancements, new methods are invented to find out the age of the writings.
10. Now I have to consider the judgments relied on by the learned counsel on either side. In T.Nagappa's case reported in (2008) 5 Supreme Court Cases page 633, I have to state that the question whether the age of the writings could be scientifically examined and any opinion in this regard could be offered never came up for consideration before the Hon'ble Supreme Court. In that case, the Hon'ble Supreme Court was concerned with the right of the accused to have fair trial so as to send the document for comparison by an expert. It was never argued before the Hon'ble Supreme Court that there are no experts available to examine the age. Therefore, the Judgment of the Hon'ble Supreme Court relied on by the respondents is not in any manner helpful to them. The learned counsel for the petitioner has relied on the Judgment of this Court in S.Gopal's case wherein Hon'ble Mr.Justice M.Jeyapaul has held that there is no method to find out the age of the document with scientific accuracy. However, the learned counsel appearing for the respondents would submit that this Judgment was prior to the Judgment of the Hon'ble Supreme Court. He would therefore submit that subsequently in another Judgment reported in 2009 INDLAW MAD 1077 (V.P.Sankaran Vs. R.Uthirakumar), this Court has directed to forward the document for such opinion. In my considered opinion, a careful reading of the said Judgment would also go to show that there was no occasion for the learned Judge to answer the question as to whether there is any expert available in terms of Section 45 of the Evidence Act to offer any opinion regarding the age of the document. The entire case proceeded under the premise as though there are experts to offer opinion regarding the age of the documents. Now, as I have already stated, the Head of the Department of Forensic Science is before me and from whom I have the benefit of ascertaining that there is no expert in the field and also that all such documents sent already were returned without offering any opinion. Therefore, the said Judgment also would not come to the help of the respondents.
18.From the aforesaid decision, it is pellucidly clear that the age of the writings cannot be found at all to offer any opinion "as stated in detail in para 7 of the judgment". Therefore, this Court comes to an inevitable conclusion that the request made by the Respondent/Accused in Cr.M.P.No.3069 of 2012 for the second time for ascertaining the age of the ink of the letters found in the disputed Cheques by comparing the same with the admitted signatures of the Accused cannot be acceded to by a Court of Law, since the said request is only an otiose and futile one. Furthermore, when the Respondent/Accused has not availed his further remedy before the appropriate Forum against the order of Crl.R.P.No.15 of 2010 dated 05.10.2010 passed by the Learned Principal District and Sessions Judge, Theni, then he is estopped in Law from filing the present Cr.M.P.No.3069 of 2010 (although it is averred in the Petition that the circumstances has changed in view of the decision Devaraj Vs. Rajammal - 2011(1) L.W. Crl. 297).
19.In short, this Court opines that Cr.M.P.No.3069 of 2012 filed by the Respondent/Accused before the Trial Court as Petitioner is not maintainable in limini in the eye of Law. There are no circumstances which necessitated the Trial court in the present case to allow Crl,.O.P.No.3069 of 2012 on 25.05.2012 in view of the observations of the Hon'ble Supreme Court in Union of India V. Jyoti Prakash Mitter reported in AIR 1971 SC 1093 at 1098 to 1100 as stated supra in the earlier para of this judgment and in Yash Pal V. Kartar Singh reported in AIR 2003 Punjab and Haryana 344, wherein it is clearly stated that "
..... 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 writing." As such, this Court holds that the Trial Court has committed a jurisdictional error in allowing Cr.M.P.No.3069 of 20112 filed by the Respondent/Accused on 25.05.2012 and accordingly, the same is set aside by this Court to promote substantial cause of justice. Consequently, the Revision Petition filed by the Petitioner/Complainant succeeds. In the result, the Criminal Revision Petition is allowed. The order passed by the Learned Judicial Magistrate, Periyakulam in Cr.M.P.No.3069 of 2012 is set aside by this Court for the reasons assigned in this Revision. Consequently, Cr.M.P.No.3069 of 2012 filed by the Respondent/Accused is dismissed as not maintainable. In view of the fact that the main S.T.C.No.235 of 2008 on the file of the Trial Court is pending in part- heard stage, the Trial Court, on the basis of Equity, Fair play, Good Conscience, Justice and even as a matter of prudence, is directed to dispose of the main case 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. Consequently, connected miscellaneous petition is closed.
Arul To
1.The Judicial Magistrate, Periyakulam.
2.The Sub Assistant Registrar (Judicial) Madurai Bench of Madras High Court, Madurai - to Watch and Report.