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2017 (1) TMI 1803 - HC - Indian LawsDishonor of Cheque - determination of the age of ink - time barred cheque or not - HELD THAT - 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 (5) TMI 536 - PUNJAB AND HARYANA HIGH COURT 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 2013 (11) TMI 1803 - ANDHRA PRADESH HIGH COURT 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. 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 determined whether that can be a basis or not is a matter of 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 obtained and even in case where presumption under Section 118 r/w 139 of the Negotiable Instruments Act can be drawn in favour of the complainant, the accused must be granted an opportunity for adducing evidence not rebuttedly there of as to liability placed reliance on the accused and he must be given opportunity to discharge it by holding so the impugned order of the High Court was set aside and it was held that adducing evidence in support of defence is a valuable right and denial of that right means denial of fair trial and it was also pointed out that, it essential that rules of procedure are to ensure justice should be scrupulously followed and the court much less in showing there is no prejudice to them. The impugned order of the lower Court is liable to be set aside for the same is unsustainable. No doubt there from the revision can be straight away allowed by setting aside the impugned order of the lower court and by allowing the same to send Exs. P1 and P2 to determine the age of the writing and age of the ink respectively with reasons for the same in the opinion to give by the said Forensic Laboratory, Hyderabad at Red Hills - the Criminal Revision Case is allowed to entertain fresh application being filed by petitioner/accused before the lower Court to consider and pass orders, pursuant to the above observations and conclusions. Petition disposed off.
Issues Involved:
1. Maintainability of the revision petition. 2. Determination of the age of ink and writings. 3. Relevance of expert opinion in determining the age of ink and writings. 4. Comparison of documents for tampering and alterations. Issue-wise Detailed Analysis: 1. Maintainability of the Revision Petition: The petitioner/accused challenged the dismissal order of the learned Magistrate, which denied sending the cheques to an expert to determine the age of the ink. The court noted that the revision is maintainable as the order affects the rights of the parties and is not merely interlocutory. Under Sections 482 and 483 Cr.P.C., the High Court has inherent powers to entertain proceedings even if they fall outside the purview of Section 397 Cr.P.C. This principle is supported by the Supreme Court's decision in Madhu Limaye v. State of Maharashtra, which allows the High Court to exercise its inherent power to ensure justice. 2. Determination of the Age of Ink and Writings: The petitioner argued that the cheques were issued in 2007 and were tampered with to appear as if issued in 2012. The lower court concluded that the age of the ink could not be determined by an expert, relying on the Punjab and Haryana High Court's decision in Yash Pal v. Kartar Singh and a Single Judge's expression in Kambala Nageswara Rao v. Kesana Balakrishna. However, the High Court referenced multiple cases, including Elumalai v. Subramani and Shashi Kumar Banerjee v. Subodh Kumar Banerjee, which suggest that determining the age of ink and writings is possible using scientific methods. 3. Relevance of Expert Opinion in Determining the Age of Ink and Writings: The court emphasized that expert opinion on the age of ink and writings is relevant and can be admitted as evidence. This is supported by the Supreme Court's decision in Shashi Kumar Banerjee, which acknowledged the potential of chemical tests to determine the age of writings. The court noted that while the exact scientific accuracy might be debated, the possibility of determining the age of ink should not be dismissed outright. The court also highlighted the advancements in forensic science and the need for experts to utilize the latest technologies and methods. 4. Comparison of Documents for Tampering and Alterations: The petitioner sought to compare Exs. D1 and D2 (Xerox copies) with Exs. P1 and P2 (original cheques) to establish tampering. The court recognized the relevance of this comparison and granted the petitioner the liberty to file a fresh application before the lower court. This application should include the determination of whether Exs. D1 and D2 are Xerox copies of Exs. P1 and P2 and whether there are any alterations in the ink and writings. Conclusion: The High Court set aside the lower court's order, allowing the petitioner to file a fresh application to determine the age of the ink and writings on the disputed cheques. The court emphasized the importance of expert opinion in such cases and the need for forensic science to evolve and provide accurate methods for determining the age of ink and writings. The Criminal Revision Case was allowed, and the lower court was directed to consider the fresh application in light of these observations.
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