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TMI Blog2009 (8) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... itated the petitioners to prefer this Revision. 3.The averments in the application filed by the revision petitioners/ defendants are as follows:- The respondent/plaintiff, who has lost his case before the trial Court, has come forward with this vexatious appeal. The respondent filed the suit on the basis of three cheques each of value Rs.50,000/- dated 07.01.2002, 17.01.2002 and 23.1.2002 respectively. The cheques were presented by the plaintiff after a very long time by fabricating it. The signature of the drawer of the cheque is in one ink and the writings and the date of those cheques are in different ink. If those cheques are sent to the Expert, morefully described in the petition, it will come to light that those cheques were not drawn by the drawer of the cheque. Therefore, an Advocate Commissioner may be appointed to take the cheques to the Expert for opinion, that the said cheques morefully detailed in the application are not written by the same person and in different ink at vast intervals of time. Therefore, the petitioners pray for appointment of an Advocate Commissioner to take the cheques mentioned in the petition to the Expert for his opinion. 4.The respondent/p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing subjected to the Forensic Science Expert's examination regarding the age of the inks, because that would be helpful to the Court to come to correct conclusion. He would again submit that if the signatures of those three cheques were found laid with different ink, it could be considered as older than the ink used for filling up the impugned cheques and that would draw the material alteration of the cheques and therefore, it is important that those cheques should have been ordered to be sent for Expert's examination and opinion. For that, he would draw the attention of this Court to the judgment of Honourable Apex Court made in the case between T.Nagappa Vs. Y.R.Muralidhar reported in 2008 (2) SCC (Crl) 677 for the proposition that an opportunity must be granted to the person for adducing evidence in rebuttal. 7.He would further submit that the petitioners are the defendants in the suit and respondents in the appeal, and in the event of the appellant Court accepts the case of the appellant/plaintiff that the cheques were validly signed by the deceased -Balasubramaniam after filling up of the details in the said three cheques, it would be necessary for the petitioners t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent herein/plaintiff and against which the respondent/plaintiff had preferred the appeal before the first appellate Court and during the pendency of the appeal, the defendants, who are the respondents in the appeal, filed the application seeking for sending the three cheques executed by the said Balasubramaniam for Expert's opinion as to the age of the ink, which is not possible scientifically to decide the present case. He would further submit in his argument that the petitioners did not apply for sending those documents to the Expert's opinion before the trial Court but, they have strangely applied before the first appellate Court seeking for such opinion, which is clearly amounting to fill up the lacuna of their case. He would further submit that the claim of the petitioners will not be sustainable in view of the judgment of this Court reported in 2008 (1) CTC 491 in between S.Gopal (Vs.) D.Balachandran to the principle that the age of the ink cannot be determined by an Expert with scientific accuracy and the use of old ink manufactured long ago in a subsequent period will definitely create a dent in the opinion of the Expert, which will result in further conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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. An accused has a right to fair trial. He has a right to defend himself as a prt of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. 12.The reliance was placed by the learned counsel for the petitioners on the judgment of this Court reported in 2007 CCDC 343 in between P.R.Ramakrishnan Vs. P.Govindarajan, which would go to show that:- the appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable. In the said judgment of this Court it has been deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the cheques for the use of filling up the years of 1990s along with 19.. as printed in the cheques. These contentions are left open to be decided by the appellate Court and they are not helpful to decide the question of sending those cheques for examination by expert and to give his opinion. 15.The Judgment of the Andhra Pradesh High Court reported in 2004(1) Crimes 567 in between Avon Organics Ltd., Vs. Poineer Products Limited Ors regarding the filling up of amount portion and date attracts material change and it could not be enforced even though it was used for legal liability. All these circumstances are also to be considered by the first appellate Court before whom the appeal is pending and it is to be considered by the said Court only. Apart from that, the oral evidence regarding the issuance of the cheques are also available as produced before the trial Court. 16.In view of the judgment of this Court discussed earlier there would not be any purpose in sending the impugned cheques for examination to ascertain its age of the ink used for filling up its particulars and signatures put up therein. Therefore, the request of the petitioners to send the cheques throug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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