TMI Blog2017 (1) TMI 1803X X X X Extracts X X X X X X X X Extracts X X X X ..... f appreciation of evidence with reference to the reasons assigned in the opinion of the expert. The learned counsel for the 2nd respondent while supporting the order of the lower Court contends contra. The time and place of execution of promissory note in dispute including as to difference in ink, opinion of handwriting expert can be sought for under Section 45 of the Act and such opinion is not totally irrelevant for adjudication of the dispute from the opinion sought for determining the age of the disputed handwriting, it is crystal clear of the handwriting as to the year of writing can be given by expert opinion is the conclusion before the Supreme Court in its approving to consider way back in 1964 and referring to it way back in 1994 this Court held opinion as to age of writing or signature can be sought from the expert. It is no doubt in relation to a civil dispute. The Apex Court in T. Nagappa [ 2008 (4) TMI 789 - SUPREME COURT ] in a cheque bounce case on the application of the accused to send the disputed signature on the cheque to determine the age of his signature observed that when it is the contention of the accused that complainant has misused the cheque obtaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the handwriting expert for comparison and determination of age of the writings. The same was since opposed on various grounds of the same is a false defence plea and an afterthought and no purpose be served having not disputed the signatures and cheques routed from his account and nothing to rebut. 2. Heard both sides and perused the material on record. 3. Undisputedly from the hearing of the matter at length Exs. D1 and D2 subject to objection if any, on behalf of the accused in the course of trial were exhibited, which are the so called Xerox copy to the originals of Exs. P1 and P2 prior to the so called cheques showing those were in fact given in the year 2007 and that demonstrated the same were tampered in the year making as 2012. In fact, that is also when required to be compared if at all of Exs. D1 and D2 are for the same documents of Exs. P1 and P2 by expert, it is beyond the scope of the prayer in the present petition before the lower Court covered by the impugned order even for this Court to sit in revision against, irrespective of Section 73 of the Indian Evidence Act during trial or enquiry enabling the Court with absolute power of comparison and for that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC 441 (decided on 07.05.2010 in Crl. Appeal No. 1020 of 2010) in discussing in relation to the reverse onus burden on the accused, where the burden is to discharge like any other criminal case only by preponderance of probabilities, for which the Court has to afford an opportunity. 6. Here, the lower Court concluded relying upon from the observations laid down by the Punjab and Haryana High Court in Yash Pal v. Kartar Singh 2003 AIR (P H) 344 held that age of the ink cannot be determined by expert and from the Single judge expression of this Court in Kambala Nageswara Rao v. Kesana Balakrishna 2014 (1) ALT 636 = 2013 Lawsuit (AP) 586 that mere determination of age of ink, even if there exists any facility for that purpose; cannot, by itself, determine the age of the signature and thereby no purpose be served by sending the disputed cheques which contain the admitted signatures of the accused/petitioner to expert. 7. Coming to the aspect of age of ink and writings can be determined and if so done can be admitted in evidence, the counsel for the revision petitioner submits that the age of the ink and writings can be determined as per catena of expressions and if at all de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 taken 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 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. (c) As mentioned in para 12(b) of this judgment, even anterior to the year, 1964 in a decision rendered by the Supreme Court in Shashi Kumar Banerjee's Case, refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also referred another expression of the Madras High Court in V. Makesan v. T. Dhanalakshmi (2010 (2) Mad.L.J. (Cri) 762), where in a criminal case on the dispute as to the age of the ink sought for determination of cheque, observed that as of now there is no expert in terms of Section 45 of the Evidence Act available who could be in a position to offer any opinion regarding the age of the ink by adopting any scientific method....... (g) In A. Inayathulla (supra), it also referred other expressions of the Madras High Court in A. Sivdgnana Pandian v. M. Ravichandran, 2011 (2) Mad.L.J. (Cri) 595 at para-32 and A. Devaraj v. Rajammal, 2011 (3) Mad.L.J. (Cri) 440, where the High Court took the leaf of the disputed documents to be send to determine the age of the ink to the Central Forensic Department, Hyderabad, by considering in this regard the earlier expression in R. Jagadeesan v. N. Ayyasamy, 2010 (1) CTC 424, which referred earlier expression in S. Gopal (supra). (h) Therefrom in A. Inayathulla (supra), it is observed that, a reading of A. Devaraj supra it could be noticed that there was nothing to indicate as to whether the Court had considered as to whether such expertise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of there is no expert available in the country and there is no purpose that could be served in sending the cheque in question. 9. In fact this Court relied upon the Apex Court's expression in Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529 at 537 observed as follows: 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 p. 464 says even with respect to chemical tests that the chemical tests to determine 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 It further observed that the time and place of execution of promissory note in dispute including as to difference in ink, opinion of handwriting expert can be sought for under Section 45 of the Act and such opinion is not totally irrelevant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om learned celebrated authors saying the possibility of giving opinion as to age of writing of any particular year and age of ink. Thereby the contention of the revision respondent of no useful purpose can be served or no opinion can be possible are untenable. 13. In fact the Apex Court in Kalyani Baskar v. M.S. Sampoornam 2007 (1) SCC (Crl.) 577 having set aside the order of the Magistrate upheld in revision of dismissing the application of the accused in a cheque bouncing case and allowed the request of the accused to send the disputed signatures to handwriting expert in saying once the accused requests to send the cheque in question for hand writing expert for opinion after closure of the evidence, the Magistrate should have been granted such a request being the valuable right in defence, unless the Court thinks that the object of the application itself is vexatious or with a delay tactics. Here, from the impugned order of the Magistrate it is not such an observation. 14. The learned counsel for the revision petitioner placed reliance in Full Bench expression of this Court in Bande Siva Shankara Srinivasa Prasad v. Ravi Surya Prakash Babu (died) per L.Rs. and others 2016 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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