2010 (12) TMI 1341 - HC - Indian Laws

Dishonour of Cheque - drawing of presumptions - whether the signature found in the cheque belongs to the accused or not? - procrastinating the proceedings - 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 - HELD THAT - 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. 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. 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 - The scientists/experts should appear before the Courts with opinionated evidence in this regard, on their successful accomplishment of this assignment. 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 - 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. 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 - Revision allowed.

Summary

Issues Involved:
1. Application under Section 45 of the Indian Evidence Act to refer the cheque to a Forensic Science Expert to ascertain the age of the ink.
2. Whether the claim of the petitioner to ascertain the age of the ink is covered by Section 45 of the Evidence Act.
3. Whether the accused should be given an opportunity to rebut the presumption under Sections 118(a) and 139 of the Negotiable Instruments Act.
4. Scientific feasibility of determining the age of the ink.

Detailed Analysis:

1. Application under Section 45 of the Indian Evidence Act:
The petitioner, accused in a cheque dishonor case, filed an application to refer the cheque to a forensic expert to determine the age of the ink. The petitioner claimed that the cheque was initially signed for a loan of Rs. 1,00,000 but was later filled in for Rs. 9,00,000. The respondent opposed this, stating that Section 45 is meant only for handwriting and signature comparison, not for determining the age of the ink.

2. Coverage of Section 45 of the Evidence Act:
The respondent argued that the petitioner's claim to ascertain the age of the ink is not covered by Section 45 of the Evidence Act, which is intended for handwriting and signature comparison. The trial court dismissed the application, observing that the petitioner admitted his signature on the cheque, and the application was filed to procrastinate the proceedings.

3. Opportunity to Rebut Presumption under Negotiable Instruments Act:
The petitioner cited the Supreme Court's decision in T. Nagappa v. Y.R. Mudaliar, emphasizing that even if a presumption is raised under Sections 118(a) or 139 of the Negotiable Instruments Act, the accused must be given an opportunity to rebut it. The court must ensure a fair trial, allowing the accused to present evidence in their defense.

4. Scientific Feasibility of Determining the Age of the Ink:
The respondent's counsel argued that no scientific method exists to ascertain the age of the ink. However, the petitioner referred to various authoritative sources and previous court decisions indicating that methods to determine the age of the ink do exist. The court reviewed multiple authorities and scientific texts, concluding that while determining the age of the ink is challenging, it is not impossible. The court emphasized the need for scientific advancements and the use of non-destructive methods to ascertain the age of the ink.

Conclusion:
The court held that the disputed document should be referred to an expert to ascertain the age of the ink, providing the accused an opportunity to rebut the presumption under the Negotiable Instruments Act. The court directed the lower court to follow prescribed procedures for referring the document to the expert, ensuring a fair trial for the accused. The revision was allowed, setting aside the lower court's order.