9911796707
TMI Blog2010 (12) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Code of Criminal Procedure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Anr.], 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumption 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cially 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 medical 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 sulphuri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pectrography 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 Criminal Investigation & Trials, Fourth Edition with Supplement. 2. B.S. Near, Forensic Science in Crime Inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaper 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
