BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/12/2010 CORAM THE HONOURABLE MR.JUSTICE S. PALANIVELU Crl. R.C.(MD) No.145 of 2010 A. Sivagnana Pandian .. Petitioner vs. M. Ravichandran .. Respondent Revision under Sections 397 and 401 of Criminal Procedure Code against the dismissal order dated 27.11.2009 passed in Crl.M.P.No.6161 of 2009 in C.C.No.44 of 2003 on the file of Judicial Magistrate, Paramakudi. !For Petitioner ... Mr.A.V. Arun ^For Respondent ... Mr.R. Venkateswaran :ORDER
The petitioner is accused in C.C.No.44 of 2003 on the file of the Judicial
Magistrate, Paramakudi. The case originated on the private complaint lodged by
the respondent/complainant on the strength of a cheque delivered to him by this
petitioner. When the case was in the part-heard stage, the petitioner filed an
application under Section 45 of the Indian Evidence Act to refer the cheque to
the Forensic Science Expert to ascertain the age of the ink.
2. In the petition filed by him, it is stated that the respondent has
falsely claimed that for getting the loan, the petitioner has delivered cheque
for Rs.9,00,000/-, that in the cheque the petitioner laid his signature alone
intending to get a loan of Rs.1,00,000/- only from the respondent and reposing
confidence upon the respondent, he handed over the cheque to him. At the time
of delivering the cheque, the petitioner’s signature alone was there and other
particulars were not filled up. So in order to institute a false case, the
contents were filled in the cheque afterwards. Hence, the age of the ink
utilised for signature by the petitioner has to be ascertained by the forensic
expert. Then only, the factual back ground would come to light and hence the
cheque may be referred to forensic science expert.
3. In the counter filed by the respondent it is stated that the claim of
the petitioner to find out the age of the ink in the signature is not covered by
Section 45 of the Evidence Act. It is meant only for comparison of the hand
writings and signatures. The relief under the request of the accused is not
required for the Court to decide the matter in issue. Without any ambiguity the
petitioner admitted his signature in the cheque. Hence the claim for
ascertaining the age is meaningless. The petitioner is the competent person to
say about his signatures and hence the expert opinion is not essential. The
petitioner has protracted the case for 7 years. The petition is filed purely
with dishonesty, evil intention and with speculation. The only issue for
consideration is whether the signature found in the cheque belongs to the
accused or not. Hence the petition may be dismissed.
4. After hearing both sides, the learned Judicial Magistrate has dismissed
the application by observing that in view of the admission by the petitioner
that he signed the cheque, even if he disputes the other contents of the
cheque, the presumption has to be drawn and that only with a view to
procrastinate the proceedings, the petition has been filed. Aggrieved against
the said order, the petitioner is before this Court.
5. It is bottom-line contention of the petitioner’s counsel Mr.A.V. Arun,
that the petitioner conveyed the cheque to the respondent with his signature
alone with an intention to get loan of Rs.1,00,000/- only and the cheque was
later filled up as if he was liable to pay Rs.9 lakhs and that the age of the
ink in the signature and other contents have to be brought to light, which
would throw light upon the defence and the same would support his contention.
6. Repelling the above said contention, by the learned counsel for the
respondent Mr.R. Venkateswaran argued that there is no scientific method in
vogue to ascertain the age of the ink and even if the document is referred for
ascertaining the age of the ink, it would be a futile exercise, since the expert
on the subject has represented before this Court in another case that it is not
possible to ascertain the age of the ink and the documents which were referred
for this purpose to the forensic laboratory were returned with report that it
is not possible to detect the age of the ink.
7. The learned counsel for the petitioner in support of his contention
placed reliance upon a decision of the Honourable Supreme Court reported in
(2008) 5 SCC 633 [T. Nagappa v. Y.R. Mudaliar] in which it is held as follows:
“7. When a contention has been raised that the complainant has misused the
cheque, even in a case where a presumption can be raised under Section 118 (a)
or 139 of the said Act, an opportunity must be granted to the accused for
adducing evidence in rebuttal thereof. As the law places the burden on the
accused, he must be given an opportunity to discharge it.”
8. In this decision, the Supreme Court has extracted Section 20 of the
Negotiable Instruments Act and made an observation that the proviso to Section
20 has a rider, namely, no person other than a holder in due course shall
recover from the person delivering the instrument anything in excess of the
amount intended by him to be paid therein. In the present case, in the petition
it has been specifically mentioned that the petitioner had intention to get a
loan of Rs.1,00,000/- alone and as such a blank cheque with signature was handed
over to the respondent which was filled up for Rs.9,00,000/-. Though a
presumption could be drawn under the Act, it is a rebuttable presumption and as
per the mandate in the above said decision, the accused has to be accorded ample
opportunity to rebut the same.
9. In the above noted decision, earlier decision of the Supreme Court in
(2007) 2 SCC 258 = (2007) 1 SCC (Cri) 577 [Kalyani Baskar v. M.S.Sampoornam] has
been referred to, which passage is as follows:
“The issue now almost stands concluded by a decision of this Court in
Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) [(2007) 2 SCC 258] (in which one
of us, L.S. Panta, J., was a member) wherein it was held : “12. Section 243(2)
is clear that a Magistrate holding an inquiry under CrPC in respect of an
offence triable by him does not exceed his powers under Section 243(2) if, in
the interest of justice, he directs to send the document for enabling the same
to be compared by a handwriting expert to compare the disputed signature or
writing with the admitted writing or signature of the accused and to reach his
own conclusion with the assistance of the expert. The appellant is entitled to
rebut the case of the respondent and if the document viz. the cheque on which
the respondent has relied upon for initiating criminal proceedings against the
appellant would furnish good material for rebutting that case, the Magistrate
having declined to send the document for the examination and opinion of the
handwriting expert has deprived the appellant of an opportunity of rebutting it.
The appellant cannot be convicted without an opportunity being given to her to
present her evidence and if it is denied to her, there is no fair trial. “Fair
trial” includes fair and proper opportunities allowed by law to prove her
innocence. Adducing evidence in support of the defence is a valuable right.
Denial of that right means denial of fair trial. It is essential that rules of
procedure designed to ensure justice should be scrupulously followed, and the
courts should be jealous in seeing that there is no breach of them.”
10. The above said decision indicates the duty cast upon the Court and
dictates the Court to afford opportunity to the accused for having a fair trial
before it. It is the quintessence of the decision that to prove the innocence
of the accused, fair trial has to be ensured. In Kalyani Baskar’s case, the Apex
Court has stressed that if the disputed document would furnish the accused a
good material to rebut the presumption, he should not be deprived of that
opportunity. It is applicable to the objection to be raised by him in the
matter of the age of the ink too, which is a good material available in the
document. Both the decisions are squarely applicable to this case on hand.
11. The learned counsel for the petitioner also relied upon a decision of
mine reported in CDJ 2009 MHC 2077=2009 Indlaw Mad 1077 = AIR 2009 Mad.166
[V.P. Sankaran v. R. Uthirakumar] wherein I have referred and followed the
decisions in T.Nagappa’s case and Kalyani Baskar’s case. I have also referred
to a decision of the Andhra Pradesh High Court in AIR 1994 AP 90 [Uppu Jhansi
Lakshmi Bai v. J.Venkateswara Rao] wherein the learned Judge has held that the
opinion of the hand writing expert is not totally irrelevant factor for
adjudication of the dispute and his opinion can be sought for determining the
age of disputed handwriting. In this decision, a judgment of the Honourable
Supreme Court in AIR 1964 SC 529 [Shashi Kumar Banerjee v. Subodh Kumar
Banerjee] has been referred. The relevant portion of the Apex Court judgment is
as follows:
“(23). Finally we may point out that the expert admitted in his evidence
that it was only by a chemical test that it could be definitely stated whether a
particular writing was of a particular year or period. He also admitted that he
applied no chemical tests in this case. So his opinion cannot on his own showing
have that value which it might have had if he had applied a chemical test.
Besides we may add that Osborn on “Questioned Documents” at page 464 says even
with respect to chemical tests that “the chemical tests to determine the age
also, as a rule are a mere excuse to make a guess and furnish no reliable data
upon which a definite opinion can be based. In these circumstances, the mere
opinion of the expert cannot override the positive evidence of the attesting
witnesses in a case like this where there are no suspicious circumstances.”
12(a). In the case before the Supreme Court, the expert did not perform
any chemical test. Hence the Supreme Court has observed as above. Even in the
said authority “Questioned Document” by Albert S. Osborn, the other portions
were looked into and referred to by the leaned Judge of Andhra Pradesh in his
decision above. The extraction of relevant excerpts of the authority in the
decision in Uppu Jhansi Lakshmi Bai’s case is as follows:-
“There are those also who pretend to say how old a writing is by merely
examining it with a hand magnifier or a microscope. This always is an exhibition
either of ignorance or of dishonest presumption. The chemical tests to determine
age also, as a rule, are a mere excuse to make a guess and furnish no reliable
data upon which a definite opinion can be based as can easily be demonstrated by
fair tests on documents of known age.”
The learned author also expressed the view that:
“………By recording the color as first seen, any observer with good
eyesight can on second view answer the question whether an ink is still
undergoing a change in color. This kind of an ink examination often furnishes
conclusive evidence that a document is not as old as it purports to be.
………………………..
It is important to know that the color of the ink on a suspected
document, if it is promptly examined, may thus be the means of showing that the
document is not genuine. If a writing of this kind purports to have been written
long before and it can be shown that the ink has not yet reached its final depth
of color, and it actually goes through those changes that are characteristic of
ink during the first months or year of its history, it is only necessary to
prove this fact to invalidate the document.”
The author Albert S. Osborn in other part of his book has opined that by
adopting certain experiments, the age of the ink could be established.
12(b) In Shashi Kumar Banarjee’s case (supra), the expert had not offered
any opinion as to the age of the ink. He had admitted in his evidence that it
was only by a chemical test that it could be definitely stated whether a
particular writing was of a particular year or period. He also admitted that he
did not apply any chemical test in that case. So, the Supreme Court reached a
conclusion in the above said circumstances that mere opinion of the expert
cannot over ride the positive evidence of attesting witnesses in a case like
this where there are no suspicious circumstances. It is to be noticed here that
in the said case, the handwriting expert did not say that no test was available
to ascertain the age of the ink. He has categorically, indubitably and
positively stated that the dispute as to the age of the ink could be definitely
resolved by a chemical test. This position prevailed even earlier to 1964. As
observed by the Honourable Supreme Court, the opinion of the expert has to be
subjected to scrutiny of the Court and that mere opinion of the expert cannot
override the positive evidence of attesting witnesses. When positive evidence
emerge from the materials in a case, then the opinion of expert cannot prevail.
13. On a later occasion, this Court in a judgment in 2010 (1) CTC 424 [R.
Jagadeesan v. N. Ayyasamy and another], has opined that sending the documents
for opinion in respect of the age of the writing on documents should not be
resorted to hereinafter by the Courts unless, in future, due to scientific
advancements, new methods are invented to find out the age of the writings. The
learned Judge has sought for aid of the learned Additional Public Prosecutor of
this Court to gain the view of the responsible officials in the Forensic Science
Department, Chennai, on this issue. Accordingly, before the learned Judge, one
Mr.A.R. Mohan, Assistant Director, Document Division, Forensic Science
Department appeared. The learned Judge quizzed him as to the present practice in
the Forensic Science Department for settling the issue. The following is the
text in this context as regards the statement made by the above said Assistant
Director before the learned Judge:-
“7. … … 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.”
The Assistant Director has also informed 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.
14. Earlier decisions of this Court show that there had been directions
for ascertaining the age of the ink and they have been performed by the experts.
Following is a classical instance as seen from a judgment of this Court in 2004
STPL (LE-Crim) 24910 MAD [Amaravathi Chits Investments v. T.M. Vaidyanathan].
The observations in the said judgment are as follows:
“6. … … … In this regard, learned counsel also submitted
that the accused filed Criminal M.P. No.2077 of 1995 to send the cheque Ex.A.1
(Cheque No.991836) to the Forensic Department for obtaining the expert’s opinion
and the Scientific Assistant D.W.1. also, in support of the case of the accused,
has stated in the report Ex.D.3 that the person, who has written S34, has not
written S1 and that in the date of cheque, the number ‘1’ has been inserted with
different ink and Q1 and Q2 have been written in ink whereas Q3 to Q5, signature
and writing, are all done by using ball point pen.”
“7. … … …. The hand writing expert D.W.1 has filed report
Ex.D.3 and also stated in his evidence that in the cheque Ex.P.1, the writings
Q1 and Q2 were made by using ink whereas Q3 to Q5 were made by using ball point
pen and in the writing marked as Q1, there is a decolourisation of the figures
1993 and the figure ‘I’ in the month 25-12-1993 marked as Q1, has been inserted
with different ink. Therefore, as rightly argued by the learned counsel for the
accused and as rightly pointed out by the Metropolitan Magistrate, there have
been material alteration in the date of cheque by adding ‘1’ before ‘2’ in the
month to make it appear that the cheque was issued on 25.12.1993 so as to bring
the cheque within the validity period for the purpose of limitation.”
15. The above mentioned decision brings to light that the questioned
documents as regards the difference in ink were referred to the Forensic Science
Laboratory in this State which were subjected to ink examination and the expert
who performed the test deposed before the Court and stated about the tests
undertaken by him. Hence, the statement by the Assistant Director of Document
Division before this Court that no scientific method is available anywhere in
this State, particularly in the Forensic Sciences Department to scientifically
assess the age of any writing and offer opinion, is not correct.
16. A Single Judge of the Karnataka High Court in 2010 STPL (LE-Crim)
33581 KAR [Ishwar V. Suresh] while dealing with the identical issue in the case
of dishonour of cheque has followed the decisions in T.Nagappa’s case and
Kalyani Baskar’s case of the Apex Court and directed for determination of
difference in ink in the cheque and promissory note. In the said decision, it
was the case of the accused that he had issued a blank cheque and bond paper to
complainant which have been mis-used by entering a huge amount. The attestor
admitted that the difference in ink with reference to contents of the documents.
The trial Court and the Revisional Court had rejected the request of the
accused. The Karnataka High Court termed the rejection of application of
accused for referring the cheque and bond paper for examination by an expert
only on the ground that he admits his signature in cheque, as illegal.
17. As to the view expressed by the Assistant Director, the Court has to
see whether the science and technology on this subject has developed and
presently whether it is impossible for the department concerned, to ascertain
the age of the ink with the available experiments in practice as done by the
other Countries and other States in this country, particularly on the prior
occurrences, when age of the ink was ascertained by the Forensic Sciences
Department in this State. When the accused is legally entitled to rebut the
presumption contained in the provisions of the Negotiable Instruments Act, there
is no other option for the Court except to provide opportunity to him to rebut
the same so as to make certain the fair trial, as held by the Apex Court, when
analytical, meticulous and regulated means are available.
18. The phraseology, “fair trial” has been defined in
P. Ramanatha Iyer’s “Advanced Law Lexicon” 2005 edition [page 1766] as under:
“A trial which is fair and proper in contemplation of law, viz, that which
the law secures to the party (St. Paul, etc. R.Co.,v. Cardner, 18 Am Rep 334)”
” ‘Fair trial’ means a trial in which bias or prejudice for or against
the accused, the witnesses, or the cause which is being tried, is eliminated.”
“The failure to hear material witness is certainly denial of ‘fair trial’
Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, 184 para
36″
19. This Court has waded through various authorities specifically on this
subject and found out that the procedures of investigation and demonstrations
are very much at hand for ascertaining the age of the ink, which should have
been adopted by the experts in our country contained in upto date treatise.
20.(a) Nature of examination of ink of various categories and different
experiments performed by the renowned chemists and the reagents to be utilised
for such experiments have been graphically narrated in the latest edition in
Bhuvan’s “Examination of Disputed Documents” [2010 edition]. The excerpts in the
said authority in pages 214, 222, 223, 225 and 226 are as follows:
“7. Age of Ink.- … …
(1) … … … …
(2) … … … …
(3) Diffusion pictures.- Inks often contain sulphate or chloride ions
from the acids added to it. They diffuse into the paper with passage of time.
If the paper is treated with lead acetate or silver nitrate, suphate or chloride
ions precipitate out as lead sulphate and silver chloride and give diffusion
pictures. The age of the writing is directly related to the extent of diffusion,
indicated by the diffusion pictures.”
“8. Examination of Inks :- The examination of inks is one of the most
difficult and yet important tasks in the examination of the documents. The
variety of inks is very large. The amount of ink available for examination is
extremely small. An ounce (28 grammes) of dry ink gives six miles unblotted ink
line. The examiner has to content himself with about one millimetre of the ink
line which may be blotted. The analysis of ink is, therefore, undertaken, only
when it is vital, by experienced workers.
The evaluation of inks on questioned documents solves many problems:
(1) Is the whole document written in the same ink?
(2) What is the age of the writing?
(3) Has the ink come from the given inkpot?
(4) Can the faded ink be restored?
(5) Can the erased writing be read?
(6) Are the additions, alternations, substitutions and cancellations with
the same ink?
(7) Can the obliterated writings be made legible?
To determine whether two documents were written with the same type of ink,
various physical and chemical methods are available. Thinlayer chromatography
is particularly suitable for ink comparisons. In the dye inks, the separation
pattern of the competent dyes is distinctly different for inks having different
dye compositions, and thus provides many points of comparison between a known
and a questioned ink.
(1) Comparative Table of Robertson and Hofmann – For the examination of
inks for legal purposes and especially to determine their nature and the
difference between them, Robertson and Hofmann, the chemists, have prepared a
very useful comparative table.
This table will not only facilitate the task of the professional chemist
but will enable the Investigating Officer in country districts to undertake, in
urgent cases, the chemical examination of a document suspected by the meidical
jurisprudent or pharmacist. But we repeat that such investigation irreparably
destroys a portion of the document.
The process is carried out by filling several quill pens with the reagents
indicated, making strokes across the letters and numbers to be examined, and
observing the changes of colour produced where the ink and the reagent meet.
The chief reagents given by the authors names are:
1.Solution of 3 per cent of oxalic acid in water.
2.Do. of 10″ of citric acid in water
3.Do. of 2″ of chloride of potassium in water
4.Solution of one part of proto-chloride of tin with one part of hydrochloric
acidin 10 parts of water
5.Solution of 15 per cent of sulphuric acid.
6.Do.of 10″ of hydrochloric acid
7.Do. of 20″ of nitric acid
8.Solution of anhydrous sulphuric acid in water
9.Solution of 4 per cent chloride of gold in water
10.Do. of one part of ferrocyanide of potassium with one part of hydrochloric
acid in 10 parts of water.
11.Solution of one part of thiosulphate of sodium with one part of ammonia and
10 parts of water.
12.Solution of 4 per cent of sodium hydrate in water.”
10. Methods of Examination of inks:- The method commonly used for studies
of inks are:
(1)Visual Examination:- Visual examination must be done with light falling at
various angles and in transmitted light. The colour and shade variations must
be carefully noted, which reveals apparent discrepancies and erasures.
(2)Chemical analysis:- Generally, inks are acidic, alkaline or neutral and have
power of resistance against chemical reactions from oxidizing or reducing
agents. So, the chemical analyst must note the action and time of reaction. In
context of modern development the chemicals used for the tests are:
(1) Chlorine Water
(2) Bromine Water
(3) Stannouschloride Solution
(4) Potassium Permaganate Solution
(5) Sodium Hydroxide Solution
(3)Magnifiers:- The magnifiers and stereomicroscope are the two accessories,
which are invaluable in examination of disputed documents.
(4)Filters:- Different colours filters are used for detecting distinguish ink
shades and evaluation of faded writings. Obscured writings obtained by
obliteration or by highly coloured surfaces are also detected by help of
different colours filters. A computer with good quality scanner has also colour
filtering system, which will gives better result than filters of different
colours.
(5)Invisible rays:- X-rays, ultraviolet rays and infrared rays are used for
analysing variations in the inks of disputed document. For above studies, a
Video Spectral Comparator (VSC) is useful
The Video Spectral Comparator equipment have recently been developed,
which facilitates scanning a document under different wavelengths, in the
Ultraviolet, and Infrared range to detect alterations, additions, erasures and
obliterations. It is also found useful for comparison of writing by displaying
any part of the writing side by side, above, below or superimposing the
signature for comparison one over the other. Besides the above equipment, Laser
source is also useful for comparing ink writings to detect alterations and
additions.
(6)Spectrographic analysis:- Spectrography especially with laser microscope are
useful to give nature and quality of ink used in writing the document. For this
purpose, suspension of metals in ink of small quantity are helpful.
(7)Spectrophotometry:- The dyestuffs used in inks can be identified with help of
spectrophotometry. The chemical nature of ink can be determined by
chromatography.
(8)Chromatographic analysis:- Different types of dyestuffs used for
manufacturing of inks can be identified by means of Thin layer Chromatography
(TLC). The use TLC separates out the dyestuffs constituents and proved handy for
ink analysis of questioned documents. This method is most frequently used for
analysis of inks.
(9)Electrophoresis:- The solution of inks are subjected to electrical field
created by supply of electricity. The dyestuffs constituents of inks separates
in band and make it possible to identified different dyestuffs used in
manufacturing of inks.”
20.(b) The author has reflected above opinions on the strength of the
following books of various authors:
1. Dr.B.R. Sharma, Forensic Science in Criminial Investigation & Trials,
Fourth Edition with Supplement.
2. B.S. Nabar, Forensic Science in Crime Investigation, Reprint
Edition,2008
3. John Adam & J. Collyer Adam, Criminal Investigation, Third Edition.
20(c) The author has detailed in the above book that the following are
the often used ink categories:
(i)Iron Tannate inks: Iron gallotannate ink is a mixture of tannic acid and
gallic acid extracted from wood and when mixed with ferrous salts, gives a
colourless liquid, which on drying gives black colour. It is, therefore, mixed
with suitable dye to give colour to the ink. The common blue-black ink used in
fountain pens belongs to this class.
(ii)Dyestuff inks : Now-a-days, the most popular ink is dyestuff inks. It is
manufactured from number of dyes. The most particularly used dye is nigrosine
dye. It is available in many colours and shades. It is not permanent ink as it
was washable and fades with passage of time. However, the fading of ink depends
upon the individual dye of which it is manufactured.
20.(d) The above said authority amply amplifies that even though the
assignment of ascertaining the age of the ink is tough task, yet, proved
experiments are available for rendering resolution on the issue.
21. In the book Forensic Science in Criminal Investigation and Trials by
B.R. Sharma [1999 edition], interalia, the following suggestions have been made
to bring about such experiments in page No.402:-
“The examination of ink is one of the most difficult and yet important
tasks in the examination of documents. The variety of inks is very large. The
amount of ink available for examination is extremely small. An ounce (28
grammes) of dry ink gives six miles unblotted ink line. The examiner has to
content himself with about one millimetre of the ink line which may be blotted.
The analysis of ink is, therefore, undertaken, only when it is vital, by
experienced workers.”
22.(a) The writings made by a Ball point pen can also be subjected to
scrutiny for this purpose. It is available in the authority “Suspect Documents
their scientific examination”by Wilson R. Harrison [1996 edition – first Indian
reprint] in page 217, as follows:-
“The age of a ball-point writing may be estimated more accurately as the
result of chemical tests on the ink. The first successful inks developed for
use with the Biro pen were all based on olein. Whilst such inks have been
superseded by improved products in the better pens, they are still being used in
the cheaper pens.”
22.(b) The author has opined that there are three categories of inks known
as (1) Dyestuff writing inks (2) Iron Gallotannate inks and (3) the Alkaline
inks. As far as usage of Dyestuff inks is concerned, it is impossible to
estimate its age chemically or any other methods and any attempt to estimate the
age of a writing by controlled fading test is certain to prove abortive. It is
also stated that the estimation of the age of the dyestuff writing is one of the
urgent unsolved problems confronting the document examiner. [page 218]
22.(c) Insofar as Iron Gallotannate Ink Writing is concerned, the ink line
exhibits and interesting series of colour changes as it ages, and it is largely
because of this that many think that it is possible to determine the age of an
ink writing from the colour. [page 219].
22.(d) Another passage in page No.220 is as under:
“with a genuine document several years old, the colour of the ink will
show no appreciable change over a week or so, but any darkening as shown by an
increase in the red component will afford conclusive evidence that the writing
is more recent than alleged.”
22.(e) Even the age of dyestuff ink writing can be determined as per the
author who has come out with the following version in page 124 of the book.
“Aged Ink:
As an ink ages, the dyestuffs therein slowly decompose, until
nothing but a crust of ferric oxide remains. At this stage, the chromatogram of
anything which can be extracted from the ink line will bear little resemblance
to that derived from the original ink. It might appear, therefore, that the age
of an ink writing might be determined from the appearance of the chromatogram,
but experiments have shown that, as long as the ink has not decomposed, the
chromatogram is not appreciably affected.”
23. New procedure for experiments have been discussed in the authority
“Scientific Examination of Questioned Documents” (second edition 2006) edited
by Jan Seaman Kelly and Brian S.Lindblom, of suspected documents and disputed
documents in pages 153 and 154, which read thus:
“A microscopic spot test – the reaction of a minute drop of chemical
reagent on a portion of the ink stroke viewed under the microscope – helps to
determine that the document was written with a particular class of fluid ink,
e.g., iron base, synthetic dye, carbon ink, or pigment. When properly
performed, these tests make only a microscopic change in the document. Although
not utilized as much today as formerly, they are of particular value in
demonstrating that two different inks were employed on a single document.
Unfortunately, spot testing does not necessarily distinguish between brands of
the same class of ink.
It is possible for different inks to react similarly when examined using
the non-destructive techniques described above. In this case, further
discriminatory testing using a technique called thin-layer chromatography (TLC)
may be appropriate. Because TLC results in a change to the document’s
condition, it should be considered destructive (or at best semi destructive).
The method requires removing very small samples of ink from the paper, a step
that may require a court order or an arrangement among all parties to the
dispute. The removal technique typically employs a microdisc hole punch or a
scalpel to remove small quantities of ink and paper. TLC is the most popular of
chemical tests currently available.
Other instrumental analyses are now available that allow further
discrimination of inks, such as gas chromatography/mass spectroscopy (GCMS),
Fourier transform infrared spectrometry (FTIR), and Raman spectroscopy.
Chemical tests are an important part of the identification of inks.
Chemical composition can be determined by a combination of tests and
demonstrated in legal proceedings in order to show that the document has been
backdated or altered.”
24.(a) The authoritative methodologies recommended in the authorities
supra are self-explanatory.
24.(b) The aforenoted opinions of the reputed authors on this subject as
narrated above would make it abundantly clear that it is not impossible to
discover age of the ink. Hence, the plea that the procedures have not evolved
so far in this country is no longer available and it cannot be acceded to.
Going by the above clippings in the authorities, it transpires that it is not at
all difficult task to step into the experiments under the guidelines of
illustrious experts in this field. The authorities and the officials concerned
have to take initiatives to evolve procedures for experiments with latest
technology for achieving improvement on the subject.
25. On the basis of choosy and discerning performance of researches, the
authors have provided procedures and devices, with reference to the names of
chemicals and reagents to be utilised, to solve the issue and it is incumbent
upon the experts to put the authoritative theories and the latest proved and
established technologies to empirical use. They have to take the inventiveness
drawing the proven and accepted principles from well settled authorities and the
Government have to provide necessary latest infrastructures in the Document
Division of the Forensic Sciences Laboratory and also allot necessary funds for
the constitution of sophisticated laboratory which is a full-fledged one in
this regard.
26.The scientist can elect non-destructive technique where there is no
scope of destruction of disputed document. When the authorities effectively
suggest various methods for subjecting a document for this purpose, it is high
time for the scientists of this State and the Government committed them in use
in practice. When the science has flourished to show enormous, remarkable,
striking and much advanced improvements in all other fields, while sufficient
ways and means are available in this sphere, they cannot be disregarded and
thrown overboard. The State shall take every possible step to provide the
justice delivery system to unearth actual evidence available in a case. If the
scientists or experts come across any difficulties, they can very well bring to
the notice of the authorities concerned. At their request and proposal, the
Government shall allocate necessary means.
27.(a) The expression that there is no scientific method available
anywhere in the country or State, more particularly in the Forensic Science
Department for scientific assessment of the age of handwriting to offer opinion
is far from acceptance. A careful survey of the above authorities would unveil
a fact that settled plans of actions for experiments are very much available and
when one steps into such experiments, there is further scope for upswing in the
technology. It is bounden duty of the official concerned to follow the
procedures. As mentioned in para 12(b) of this judgment, even anterior to
1964, in a decision rendered by the Supreme Court, in Shashi kumar Banerjee’s
Case (supra) before the trial Court, the expert had stated that the
determination of the age could be ascertained definitely by a chemical test.
It reveals that even prior to 1964, chemical tests were in application to find
out age of ink. Now, the science in this branch has prospered to considerable
dimensions and it cannot hereafter be contended that it is not possible to
ascertain the age of the ink by scientific method and exact result could not be
secured. The scientists/experts should appear before the Courts with opinionated
evidence in this regard, on their successful accomplishment of this assignment.
27.(b) The advancements in establishing the facts in this field as a
science continue through today. The explosion of modern technology has
influenced every facet of our lives, from introducing new avenues of written
communications to improvements in ink and ergonomic design of writing
instruments.
28. The above said discussion on the strength of the authorities available
before the Court is only indicative, not exhaustive. It is not a sole-source
training manual.
29. Adverting to the facts of the present case, 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. I follow the ratio in
the decisions in Kalyani Baskar’s case and T.Nagappa’s 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.(Emphasis
supplied).
30. 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. Latching the
opportunity to the accused in the attempt at the stage of rebutting the
presumption under Section 118(a) and 139 of the Negotiable Instruments Act is
not at all “fair trial”. As per the settled law, every opportunity shall be
extended to the accused to establish his defence.
31. 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.
32. In view of the above said study and discussion, I am fortified in my
view that the disputed document has to be referred to the expert for
ascertaining the age of the ink and practical hardships, if any, sustained by
the expert shall be brought to the notice of the Court and the Court shall
thereafter act according to the settled principles and procedures, in affording
appropriate opportunity to the accused to prove his defence. Hence,
interference with the order challenged before this Court has become inevitable,
which is set aside. The revision deserves to be allowed.
33. In the result, the Criminal Revision Case is allowed. The Court below
shall follow the prescribed procedures for referring the document to the expert.
ggs
Note : The Registrar Judicial, High Court, Madras is directed to place this
Order before My Lord, the Honourable the Chief Justice, for circulating the
copies of the Order to the following authorities:
1. Mr.K. Gnanadesigan (by name)
Principal Secretary,
Home, Prohibition and Excise Department,
Secretariat,
Government of Tamilnadu,
Chennai 600009.
2. Tmt.P. Dhanabagyam (by name)
Director,
Forensic Science Department,
Forensic House,
30-A, Kamarajar Salai,
Mylapore, Chennai 600004.
To
1. The Judicial Magistrate,
Paramakudi.
2. The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.