9911796707
TMI Blog2019 (2) TMI 2050X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the signatures of the petitioner/accused and the two documents. The learned Magistrate by the impugned order dated 24.8.2018, after contest, dismissed the same. Present revision impugnedment is against that. Heard both sides and perused the material on record. 3. Before coming to the petition and the scope with reference to the law, it is necessary, in brief, to refer the private complaint averments. 4. The complainant and accused, according to the complaint averments are known to each other for the past 15 years and out of that acquaintance and friendship, when the accused asked to advance Rs.15 lakhs to meet his necessities, complainant paid the same to the accused on 25.11.2014 and accused executed pro-note of even date in his favour to repay with 24% per annum interest and later failed to pay instead of demands and ultimately issued the cheque supra on 17.6.2017 drawn on Vijaya Bank, Hardikar Branch, Hyderabad in discharge of the principal amount covered by the pronote and by assuring to pay interest later within short period, however, the cheque when presented, returned dishonoured as account blocked as per bank cheque return endorsement covered by memo dated 21. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the document, then resolving the controversy would create confusion and there is no such facility available in India to find out age of ink that when the signature admitted, question of sending document to expert to determine the age of ink of the signature doesn't arise to entertain and mere determination of age even if there exists any facility, cannot by itself determine the age of the signature and petitioner/accused shall prove his defence of cheque and pro-note obtained for some other purpose were misused by another mode of evidence to resolve the real controversy involved and thereby the petition liable to be dismissed. 7. The impugned order of the learned Special Magistrate, particularly, from paragraphs 7 and 8 speaks about the accused, as per the case of the complainant, came to the witness box as D.W.1 and never deposed about such defence now taken in the petition was never spoken of any ink difference in his chief examination then compared to the pro-note and cheque that are issued by him, according to him, for security purpose and when there is no dispute on the signatures, sent to determine age on the writings therein cannot be is the contention which is with meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cientists can elect non-destructive technique and it is high time for the scientists of State and Central Governments to use in practice the technology to determine the age of writings. It is with reference to it and further with reference to the expression of the Apex Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, [AIR 1964 SC 529 at 537], 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 and also admitted about applied no chemical tests in that case and his opinion cannot on his own showing to give any value had he applied chemical test and the author Osborn on questioned documents at page 464 says even with respect to chemical tests to determine the age of ink available as a rule are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based and also by referring to other expressions of Madras High Court in S.Gopal v. D.Balachandran [2008(1) MadLJ (Cri) 769], A.Sivagnana Pandian v. M.Ravichandran [2011(2) MadLJ (Cri) 595 at para 32], A.Devaraj v. Rajammal [2011(3) MadLJ (Cri) 440] and K.Vairavan v. Selvaraj [201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused must be granted the opportunity for adducing evidence, as he able to rebut, there is no liability to fasten and adducing of evidence in support of defence is by preponderance of probability which is an essential rule of procedure to ensure justice and to sub-serve the ends of justice in directing to send the document to determine the age of the ink to expert. The above judgment of Rajalingam was dated 19.1.2017. In fact, earlier to it, there is another similar judgment of this Court in Takkella Radhakrishnaiah v. Ganipaineni Nagaraju in C.R.P.No.1698 of 2016 dated 23.12.2016, that was no doubt, not brought to the notice of this Court while rendering the judgment in Rajalingam supra. In Takkella Radhakrishnaiah, which is by referring to the Madras High Court expression supra and Rajalingam, observed of once the judgment speaks of no technology developed in India, there is no practical purpose that could be served for the impracticability involved with no need to make a futile exercise. Same is quoted by the self-same other learned single Judge in another expression in C.R.P.No.1079 of 2017 dated 3.3.2017 and by then Rajalingam supra dated 19.1.2017 already delivered that wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akshmi Bai v. J.V.Rao, referring to the author Osborn, that is no doubt quoted by mentioning Rajalingam supra and observed in Ponnala Jawaharlal Nehru ultimately from paras 14 and 15 as follows: "14. It is an admitted fact that the science relating to forensic examination of Handwriting, especially in relation to the fixation of the age of the ink, is not perfect. In cases of this nature any reference of a document to the Handwriting Expert just for the purpose of finding out whether the ink was 5 years old at the time of institution of the suit or 3 years old at the time of institution of the suit, is not likely to bring any fruitful result. Interestingly in one of the books relied upon by the learned Judge of the Madras High Court, namely "Handwriting Forensics" by B.R. Sharma, Chapter 25 contains a Glossary under the title "Documenpaedia". In the said chapter, there is an interesting port ion relating to "INK AGE". This portion reads as follows: "INK AGE: Age of the writing can sometime be given in relative terms. Upkeep of the document plays an important role. Ink has been extensively studied to fix the age of the documents. There are two aspects which have been e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve when the evidentiary value is very low and bleak. In fact, in view of the above, the matter requires for reference to a Division Bench, but for with no need to refer in view of the expression of Apex Court in SPS Rathore v. CBI that once the expert opinion is admissible and relevant, it is premature to determine the evidentiary value in refusal to send as it all depends upon the reasons assigned in the opinion for ultimate appreciation atleast as a piece of corroboration. 10. Having regard to the above, and in view of the propositions, it is premature to determine the evidentiary value once the expert opinion is relevant and admissible in relation to determination of age of ink and from availability of the technology, referred supra. There are no grounds for refusal of any request to send the documents to determine the age of the ink. 11. From the above legal position, summed up supra, with reference to catena of expressions discussed supra, coming to the facts, the very defence of the accused while admitting his signatures on the pro-note and cheque by saying routed from his account in saying as a security in relation to a loan relating to the College of the Society to which ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
