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TMI Blog2011 (1) TMI 1579X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. - S. Palanivelu, J. For Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutes a good ground for supporting the contention projected by this Petitioner, that by means of comparison and opinion of the expert, the Respondent will not be prejudiced and that it is permissible under law to refer the disputed document to ascertain the difference in the inks utilised for different handwritings in a disputed document. Even though it is presumed that the document is true, invoking Section 118(a) of the Negotiable Instrument Act, sufficient opportunities must be given to the person who is stated to have delivered the negotiable instrument. 6. The learned Counsel for the Petitioner in support of his contention placed reliance upon a decision of the Honourable Supreme Court reported in (2008) 5 SCC 633 T. Nagappa v. Y.R. Mudaliar in which it is held as follows: 7. When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it. 7. In this decision, the Supreme Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t upon the Court and dictates the Court to afford opportunity to the accused for having a fair trial before it. It is the quintessence of the decision that to prove the innocence of the accused, fair trial has to be ensured. In Kalyani Baskar's case, the Apex Court has stressed that if the disputed document would furnish the accused a good material to rebut the presumption, he should not be deprived of that opportunity. It is applicable to the objection to be raised by him in the matter of the age of the ink too, which is a good material available in the document. Both the decisions are squarely applicable to this case on hand. 9 (a). In a decision rendered by me in Crl. R.C.(MD) No. 145 of 2010 A. Sivagnana Pandian v. M. Ravichandran (Madurai Bench of Madras High Court) dated 23.12.2010, I have taken up the following discussion in the light of the enlightening judicial pronouncements and authorities on this subject which are furnished hereunder. 10. In a decision of mine reported in CDJ 2009 MHC 2077 : 2009 Ind law Mad 1077 : AIR 2009 Mad.166 V.P. Sankaran v. R. Uthirakumar I have referred and followed the decisions in T. Nagappa's case and Kalyani Baskar's case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observer with good eyesight can on second view answer the question whether an ink is still undergoing a change in color. This kind of an ink examination often furnishes conclusive evidence that a document is not as old as it purports to be. .... It is important to know that the color of the ink on a suspected document, if it is promptly examined, may thus be the means of showing that the document is not genuine. If a writing of this kind purports to have been written long before and it can be shown that the ink has not yet reached its final depth of color, and it actually goes through those changes that are characteristic of ink during the first months or year of its history, it is only necessary to prove this fact to invalidate the document. The author Albert S. Osborn in other part of his book has opined that by adopting certain experiments, the age of the ink could be established. 11 (b) In Shashi Kumar Banarjee 's case (supra), the expert had not offered any opinion as to the age of the ink. He had 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is facility to find out the approximate range of the time during which the writings would have been made. It is a Central Government organisation. According to him, even such opinion cannot be exact. He would further submit that since it is a Central Government Organisation and confined only to atomic research, the documents relating to prosecutions and other litigations cannot be sent to that institution also for the purpose of opinion. He would further submit that if a document is sent for comparison, with the available scientific knowledge, opinion to the extent as to whether the same could have been made by an individual, by comparing his admitted handwritings or signatures, alone could be made. He would further submit that if there are writings with two different inks in the same document, that can alone be found out. But he would be sure enough to say that the age of the writings cannot be found out at all to offer any opinion. The Assistant Director has also informed the Court that already many such documents, which were sent to them by various Courts in the State for such opinion, have been returned by them with the report that no such opinion could be offered. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in 2010 STPL (LE-Crim) 33581 KAR Ishwar V. Suresh while dealing with the identical issue in the case of dishonour of cheque has followed the decisions in T. Nagappa's case and Kalyani Baskar's case of the Apex Court and directed for determination of difference in ink in the cheque and promissory note. In the said decision, it was the case of the accused that he had issued a blank cheque and bond paper to complainant which have been misused by entering a huge amount. The attestor admitted that the difference in ink with reference to contents of the documents. The trial Court and the Revisional Court had rejected the request of the accused. The Karnataka High Court termed the rejection of application of accused for referring the cheque and bond paper for examination by an expert only on the ground that he admits his signature in cheque, as illegal. 16. As to the view expressed by the Assistant Director, the Court has to see whether the science and technology on this subject has developed and presently whether it is impossible for the department concerned, to ascertain the age of the ink with the available experiments in practice as done by the other Countries and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the documents. The variety of inks is very large. The amount of ink available for examination is extremely small. An ounce (28 grammes) of dry ink gives six miles unbolted ink line. The examiner has to content himself with about one millimeter of the ink line which may be blotted. The analysis of ink is, therefore, undertaken, only when it is vital, by experienced workers. The evaluation of inks on questioned documents solves many problems: (1) Is the whole document written in the same ink? (2) What is the age of the writing? (3) Has the ink come from the given inkpot? (4) Can the faded ink be restored? (5) Can the erased writing be read? (6) Are the additions, alternations, substitutions and cancellations with the same ink? (7) Can the obliterated writings be made legible? To determine whether two documents were written with the same type of ink, various physical and chemical methods are available. Thin-layer chromatography is particularly suitable for ink comparisons. In the dye inks, the separation pattern of the competent dyes is distinctly different for inks having different dye compositions, and thus provides many points of comparison between a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (5) Sodium Hydroxide Solution (3)Magnifiers: The magnifiers and stereomi-croscope are the two accessories, which are invaluable in examination of disputed documents. (4)Filters: Different colours filters are used for detecting distinguish ink shades and evaluation of faded writings. Obscured writings obtained by obliteration or by highly coloured surfaces are also detected by help of different colours filters. A computer with good quality scanner has also colour filtering system, which will gives better result than filters of different colours. (5)Invisible rays: X-rays, ultraviolet rays and infrared rays are used for analysing variations in the inks of disputed document. For above studies, a Video Spectral Comparator (VSC) is useful The Video Spectral Comparator equipment have recently been developed, which facilitates scanning a document under different wavelengths, in the Ultraviolet, and Infrared range to detect alterations, additions, erasures and obliterations. It is also found useful for comparison of writing by displaying any part of the writing side by side, above, below or superimposing the signature for comparison one over the other. Besides the above e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ask, yet, proved experiments are available for rendering resolution on the issue. 20. In the book Forensic Science in Criminal Investigation and Trials by B.R. Sharma (1999 edition), inter alia, the following suggestions have been made to bring about such experiments in page No. 402: The examination of ink is one of the most difficult and yet important tasks in the examination of documents. The variety of inks is very large. The amount of ink available for examination is extremely small. An ounce (28 grammes) of dry ink gives six miles unbolted ink line. The examiner has to content himself with about one millimeter of the ink line which may be blotted. The analysis of ink is, therefore, undertaken, only when it is vital, by experienced workers. 21 .(a) The writings made by a Ball point pen can also be subjected to scrutiny for this purpose. It is available in the authority Suspect Documents their scientific examination by Wilson R. Harrison (1996 edition first Indian reprint) in page 217, as follows: The age of a ball-point writing may be estimated more accurately as the result of chemical tests on the ink. The first successful inks developed for use with the Biro pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was written with a particular class of fluid ink, e.g., iron base, synthetic dye, carbon ink, or pigment. When properly performed, these tests make only a microscopic change in the document. Although not utilized as much today as formerly, they are of particular value in demonstrating that two different inks were employed on a single document. Unfortunately, spot testing does not necessarily distinguish between brands of the same class of ink. It is possible for different inks to react similarly when examined using the non-destructive techniques described above. In this case, further discriminatory testing using a technique called thin-layer chromatography (TLC) may be appropriate. Because TLC results in a change to the document's condition, it should be considered destructive (or at best semi destructive). The method requires removing very small samples of ink from the paper, a step that may require a court order or an arrangement among all parties to the dispute. The removal technique typically employs a microdisc hole punch or a scalpel to remove small quantities of ink and paper. TLC is the most popular of chemical tests currently available. Other instrumental ana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 26.(a) 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. As mentioned in para 12(b) of this judgment, even anterior to 1964, in a decision rendered by the Supreme Court, in Shashi kumar Banerjee's Case (supra) before the trial Court, the expert had stated that the determination of the age could be ascer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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