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2019 (9) TMI 1742 - HC - Indian LawsRejection of application filed by the petitioner being arraigned as accused under Sections 45 and 73 of the Indian Evidence Act 1872 - seeking to refer the disputed cheque for scientific examination to ascertain the age of the ink - rejection of application without justifiable reasons - principles of natural justice - HELD THAT - Section 73 of the Indian Evidence Act 1872 relates to comparison of signature writing or seal with others admitted or proved. However it is a power vested with the Court of law to consider and decide the matter by sending the disputed cheque for experts opinion or not. In the instant petition the petitioner is arraigned as accused in C.C. No. 709/2014 wherein he is facing up the trial for the offence punishable under Section 138 of the N.I. Act. However the respondent-complainant having a responsibility to prove the guilt of the accused by producing the cogent and corroborative evidence in order to secure the conviction whatever the offence has been faced by the accused and also put on trial. But Sections 45 and 73 of the Act 1872 it is referred relating to the opinion report secured by the competent person otherwise to see an expert relating to the disputed cheque at Ex. P-1 subjected for examination and to give the opinion report regarding the age of ink. But the said application came to be rejected by the Court below in C.C. No. 709/2014 and the same has been challenged under this petition by urging the various grounds - the disputed cheque at Ex. P-1 relating to the age of ink signature and contents found on the said cheque is required to be examined by the handwriting expert and a report to be secured by the Forensic Science Laboratory. Therefore it is said that the petition requires to be considered keeping in view the aforesaid relevant provision of Section 293 of Cr.P.C. Based upon the relevant provision of Sections 293(1) and 293(4)(c) of Cr.P.C. having an authority to examine the disputed cheque relating to the age of ink and also signature contents of writing found on the cheque which got marked as Ex. P1 in the aforesaid case be adjudicated between the complainant and the accused. The offence under Section 138 of the N.I. Act even though it is in a quasi judicial in nature; therefore Section 147 of the N.I. act has been introduced before the proceedings has been ended either in conviction or in acquittal it is based upon the evidence either documentary or oral evidence has been adduced either of the parties and would close the proceedings that they may make use of the provision of Section 147 of N.I. Act. However based upon the evidence adduced by the complainant and so also be subjected to test of the witnesses on the parts of the complainant and so also on the parts of the accused the Trial Court has been appreciated the evidence on record keeping in view Section 3 of the Indian Evidence Act of 1872 if the accused has been convicted for the offence punishable under Section 138 of the N.I. Act then only it shall be termed in a criminal in nature. In this case the accused is required to facing up of trial for the offence under Section 138 of the N.I. Act. Therefore it is required to consider the application filed by him under Sections 45 and 73 of the Indian Evidence Act. Conclusion - Mere because technically the provision has been quoted by the applicant - accused before the Court below seeking to refer the disputed cheque Ex. P-1 relating to the age of ink signature and writing found on the cheque it cannot be a ground to reject the application filed by the applicant-accused. Petition allowed.
ISSUES PRESENTED and CONSIDERED
The core legal issues considered in this judgment are:
ISSUE-WISE DETAILED ANALYSIS 1. Legal Framework and Precedents The relevant legal framework involves Sections 45 and 73 of the Indian Evidence Act, 1872, which pertain to the opinions of experts and the comparison of signatures, writings, or seals. Section 45 allows the court to seek expert opinions on matters requiring specialized knowledge, such as handwriting analysis. Section 73 provides the court with the authority to compare signatures or writings to ascertain their authenticity. Section 293 of the Code of Criminal Procedure, 1973, outlines the process for using reports from government scientific experts as evidence in legal proceedings. 2. Court's Interpretation and Reasoning The Court analyzed the trial court's decision to dismiss the application under Sections 45 and 73 of the Indian Evidence Act. It noted that the trial court's rejection was primarily based on the accused's admission of the signature on the cheque. However, the Court emphasized the necessity of examining the age of the ink used on the cheque to ensure a fair trial. The Court highlighted that the accused had not disputed the issuance of the cheque but had contested the age of the ink and the timing of the contents written on the cheque. This discrepancy necessitated expert analysis to determine the validity of the accused's claims. 3. Key Evidence and Findings The evidence presented included the cheque (Ex. P1) issued by the accused, which was dishonored due to insufficient funds. The complainant had initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881, based on this dishonor. The accused sought to challenge the evidence by questioning the age of the ink, which could potentially impact the credibility of the complainant's case. 4. Application of Law to Facts The Court applied Sections 45 and 73 of the Indian Evidence Act to the facts, determining that expert examination of the ink's age was crucial for a fair adjudication. The Court also invoked Section 293 of the Cr.P.C. to justify referring the cheque to a government scientific expert for analysis. 5. Treatment of Competing Arguments The Court considered the arguments from both parties. The petitioner-accused argued that the trial court's decision resulted in a miscarriage of justice by not allowing the scientific examination of the cheque. The respondent-complainant contended that the accused's admission of the signature negated the need for further examination. However, the Court found merit in the petitioner's argument, emphasizing the importance of verifying the ink's age to ensure justice. 6. Conclusions The Court concluded that the trial court erred in dismissing the application for scientific examination of the cheque. It determined that the application should be allowed to ensure a comprehensive evaluation of the evidence, thereby safeguarding the accused's right to a fair trial. SIGNIFICANT HOLDINGS 1. Verbatim Quotes of Crucial Legal Reasoning "Mere because technically the provision has been quoted by the applicant - accused before the Court below seeking to refer the disputed cheque Ex. P-1 relating to the age of ink, signature and writing found on the cheque, it cannot be a ground to reject the application filed by the applicant-accused." 2. Core Principles Established
3. Final Determinations on Each Issue
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