IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 907 of 2002()
1. K.BABURAJ, S/O. SANKARAN,
... Petitioner
Vs
1. GEETHA SAILENDRANATH,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.V.N.ACHUTHA KURUP (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :12/06/2009
O R D E R
M.N.KRISHNAN, J.
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CRL.A.No.907 OF 2002
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Dated this the 12th day of June, 2009
J U D G M E N T
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This is an appeal preferred against the judgment of acquittal passed
by the Judicial First Class Magistrate Court – II, Kozhikode, in
C.C.No.30/01. The complainant in that case is the appellant before this
Court. It is the case of the complainant that the accused had borrowed a
sum of Rs.1 lakh, in May 1999 and towards the discharge of the liability,
had issued a cheque on 12.07.1999, which when presented for
encashment, returned with the endorsement of `insufficiency of funds’.
Thereafter, the notice was issued and prosecution was launched. The
defence appears to be that there was some transaction between the
husband of the accused and one A.V.Prakash and for that purpose she
had entrusted two blank signed cheques to the husband, which he might
have entrusted to Mr.Prakash and one of such cheque leaf should have
been utilized for the purpose of filing this case.
2. The evidence tendered is the depositions of PWs 1 and 2 and
DWs 1 to 3. In examination, the complainant has admitted that the
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cheque was written and signed in his presence. The defense
case is that, only a blank signed cheque was given and the filling
was done by somebody else at a later point of time and
therefore the cheque is not admitted to be executed. In order to
find out the same, after the closure of the prosecution evidence
under Section 313 of the Code of Criminal Procedure
questioning, a petition was filed to send the document for expert
opinion and accordingly it was sent to DW2 for comparison of
the hand writing. In order to have the comparison of the hand
writing, specimen hand writings were taken from the court and it
was sent along with disputed writings in Ext.P1 for comparison.
The expert opined that, going through the individual
characteristics of the hand writing, there appears to be
difference and so it does not appear that, the hand writings in
Ext.P1 and specimen hand writings are written by the same
person.
3. Under Section 73 of the Evidence Act, there is a method
of comparison of hand writing by Court, but the Apex Court had
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cautioned that it was a hazardous task, for the reason that the
court is not an expert in that field. So most probably, on the
basis of that, making use of Section 45 of the Evidence Act and
the powers vested in Court, the hand writing had been sent for
comparison to the expert. It has to be remember that, when a
person develops in age, there will be difference in hand writing
as well. A person may become sick and most probably will
loose the very many characteristics of his hand writing, which he
really has. Instances are also not rare that in the process of
years, one may tend to change the style of writing also. So
when a comparison of the signature or hand writing is to be
done, it is always safer to send the writings of a
contemporaneous period for comparison, so that the scientific
proximity and precision will be almost fully proved. Suppose
there is a long gap between the hand writings to be sent for
comparison and if it is taken from the court , necessarily it will
have disadvantages. Moreover, in a case where the accused
disputed the hand writing and with that mind he gives specimen
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hand writing which is to be sent for comparison it is nothing but
natural, that he will have the tendency to change his style of
writing. That is why the courts have held that, when specimen
hand writing is taken after the litigation has started it will be very
unsafe. But unfortunately, in this case the court has not applied
its mind to this factor. The learned senior counsel would
contend that it has resulted in injustice. Unfortunately, I do not
find any question with respect to the same was put to the expert
when she was in the box. When the court relies upon the
scientific finding, it must be a finding which is leak proof and an
acceptable one. If it is not so it will result in arriving at a wrong
conclusion. Therefore, there is considerable force in the
learned counsel’s contention that injustice has been done in this
case. What is the procedure to be adopted is the next question.
It has to be found whether this person had executed any
document during the period 1998 or 1999 or 2000. If such
documents are available, her hand writing therein can be made
use of for the purpose of comparison with the disputed writing in
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Ext.P1 cheque. If there is no such document available one has
to go back to the period of 1993 or so for the reason that there
will be documents in the bank to show her writings during that
period. Further I find from the evidence of PW1, that there was
a witness to the transaction and if the complainant wants to
examine him, then certainly that can also be allowed. Needless
to say that the accused is permitted to adduce other evidence in
support of her contention. From this discussion, I find that the
judgment of the court below requires interference and its order
of acquittal has to be set aside and remitted back to the said
court with the following directions :-
1. The court below is directed to permit the complainant to
direct the accused to produce the hand writings for the
period relating to 1998-2000 and if it is available send
this hand writings for comparison by the expert at the
expense of the complainant. If such a hand writing is
not available, then if the hand writing in the bank where
the account of the accused was there may be called for
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6and the said hand writing may be sent for comparison
by the expert.
2. The complainant as well as the accused be permitted to
adduce additional evidence as well in support of the
respective contention. It is desirable that the same
expert is directed to compare, so that the one will be
able to know the difference. The complainant is directed
to appear before the court below on 27.7.2009 and after
the appearance take out the summons to the accused,
as he is not represented by the counsel before this court
for carrying out the direction of this court. If the accused
does not co-operate, then necessarily the court has to
consider the discussion made by me in this judgment for
a final disposal of the matter.
Accordingly the appeal is disposed of.
M.N.KRISHNAN, JUDGE
ami.