BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/01/2010 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM CRL.RC.(MD).No.582 of 2008 and M.P.No.1 of 2008 R.Dennis Raja ... Petitioner Vs. T.Subbiah ... Respondent PRAYER Petition is filed under Section 397 r/w 401 of the Criminal Procedure Code 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. !For Petitioner ... Mr.N.Mohideen Basha ^For Respondent ... No Appearance :ORDER
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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.
2. 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 under Section 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 under Section 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.
3. 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.
4. 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.
5. 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 under Section 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.
6. This Court has considered the above submissions made by the learned
counsel appearing for the petitioner and perused the records carefully.
7. 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.
8. 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.
9. In similar circumstances, this Court in Gopal v. D.Balachandran
reported in 2008 (1) CTC 491 has held as follows:-
“12. Following the aforesaid ratio, this Court has also held in
P.R.Ramakrishnan v. P.Govindarajan, 2007 (1) MLJ (Crl) 1297, that when the
accused disputes his signatures in the cheques in question in a proceeding under
Section 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.
13. In Yashpal v. Kartar Singh, AIR 2003 P&H 344, 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.
14. 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.
15. 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”.
10. 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.
NB
To
1.The Additional District Munsif, Thoothukudi.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.