2011 (1) TMI 1579 - HC - Indian Laws

Ascertain the difference in the inks utilised for different handwritings in a disputed (pro-note) document - Suit on a pro-note for recovery of sum alongwith interest and costs - whether there are differences between the inks used for signatures in the suit pro-note and other printed form? HELD THAT - 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. Hence, following the ratio in the decisions in Kalyani Baskar's case 2006 (12) TMI 545 - SUPREME COURT and T. Nagappa's case 2008 (4) TMI 789 - SUPREME COURT , and direct to refer the disputed document to such examination in order to provide an opportunity when a good material is available, to rebut the presumption as per law, by non-destructive method in this regard. 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 u/s 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 party to a case to establish his defence. 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. Therefore, 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 Petitioner/Defendant to prove his case. Hence, interference with the order challenged before this Court has become inevitable, which is set aside. The revision deserves to be allowed.

Summary

Issues Involved:
1. Application for sending a disputed pro-note to an expert for ink analysis.
2. Rebuttal of presumption under Section 118(a) and 139 of the Negotiable Instruments Act.
3. Fair trial and the right of the accused to present evidence.
4. Scientific methods for determining the age of ink.

Detailed Analysis:

1. Application for Sending a Disputed Pro-note to an Expert for Ink Analysis:
The petitioner, a defendant in a suit for recovery of money based on a pro-note, filed an application under Section 151 of the Code of Civil Procedure. The petitioner sought to have the pro-note examined by an expert to determine differences in the inks used for signatures. The trial court dismissed this application, prompting the petitioner to seek revision.

2. Rebuttal of Presumption under Section 118(a) and 139 of the Negotiable Instruments Act:
The petitioner argued that the evidence provided by a witness (P.W3) supported the contention that different inks were used, which could indicate tampering. The petitioner cited the Supreme Court's decision in T. Nagappa v. Y.R. Mudaliar, which held that an accused must be given an opportunity to rebut the presumption under Sections 118(a) and 139 of the Negotiable Instruments Act. The court emphasized that the presumption is rebuttable and that the accused should be allowed to present evidence to challenge it.

3. Fair Trial and the Right of the Accused to Present Evidence:
The court referred to the Supreme Court's decision in Kalyani Baskar v. M.S. Sampoornam, which underscored the importance of a fair trial, including the right of the accused to present evidence. The court noted that denying the petitioner the opportunity to have the ink analyzed would deprive him of a fair trial. The court emphasized that fair trial principles require that the accused be given every opportunity to establish their defense.

4. Scientific Methods for Determining the Age of Ink:
The court discussed various scientific methods for determining the age of ink, citing authoritative texts and previous judgments. The court noted that while some experts claimed that it was not possible to determine the age of ink, others provided detailed methodologies for such analysis. The court concluded that scientific advancements and established procedures could be used to ascertain the age of the ink, thus supporting the petitioner's request for expert examination.

Conclusion:
The court allowed the revision petition, setting aside the trial court's order. It directed that the disputed pro-note be sent to an expert for ink analysis, ensuring that the petitioner is given a fair opportunity to rebut the presumption against him. The court emphasized the need for a fair trial and the importance of allowing the accused to present evidence in their defense.