Crl.R.C. (MD) No.618 of 2012,M.P. (MD) No.2 of 2012

8th February, 2013

Petitioner Counsel: Mr. K.M. APPAJI
Respondent Counsel: Mr. M.R. SREENIVASAN

Cases Cited:
R. Jagadeesan Vs. N.Ayyasamy & Anr., 2010 (1) CTC 424 [Para 5,12]
A. Devaraj Vs. Rajammal, 2011 ALL MR (Cri) JOURNAL 154=(2011) 3 MLJ (Crl.) 440 [Para 6]
A. Sivagnana Pandian Vs. M.Ravichandran, (2011) 2 MLJ (Crl) 595 [Para 8]
Pavithran Vs. K. Retnakaran, Crl.M.C.No.783/2008, Dt.01.07.2008 [Para 9]
Kalyani Baskar Vs. M.S.Sampoornam, 2007 ALL MR (Cri) 820 (S.C.)=(2007) 1 MLJ (Crl) 1020 [Para 10]
V. Makesan Vs. T. Dhanalakshmi, 2010-2-L.W. (Crl.) 879 [Para 11]
S.Gopal Vs. D.Balachandran, (2008) 1 MLJ (Crl) 769 [Para 13]
K.Vairavan Vs. Selvaraj, 2012 (5) CTC 596 [Para 14]
Union of India Vs. Jyoti Prakash Mitter, AIR 1971 SC 1093 [Para 18]
Yash Pal Vs. Kartar Singh, AIR 2003 P & H 344 [Para 19]
State Vs. S.J.Choudhry, AIR 1996 SC 1491 [Para 23]
Srichand Vs. S., AIR 1974 SC 639 [Para 24]

JUDGMENT

JUDGMENT :- The Petitioner/Accused focussed the present Criminal Revision Petition as against the order dated 06.07.2011 in C.M.P. No.3935 of 2009 in C.C.No.79 of 2007 passed by learned Judicial Magistrate No.II, Kuzhithurai.

2. The learned Judicial Magistrate No.II, Kuzhithurai, while passing the impugned order in C.M.P.No.3935 of 2005 in C.C.No.79 of 2007 on 06.07.2011, has, among other things, observed that '.... Already, in order to find out the difference between the age of the signature in the cheque and the writings in the cheque till date, no final report has been filed in regard to the cheques sent from the Court after the examination of the same by Experts and per contra, the examination results have come which point out that age of the ink could not be found out' and therefore, in order to prevent the delay which is to occur any further in the case and also when the age of the ink could not be found out, the sending of the cheque in order to find out the age of the ink in regard to signature is not in furtherance of justice and ultimately dismissed the petition.

3. Assailing the propriety of the dismissal order passed by the trial Court in C.M.P.No.3935 of 2011 in C.C.No.79 of 2007 dated 06.07.2011, the Learned Counsel for the Petitioner/Accused submits that it is the consistent case of the Petitioner from the early stage that she borrowed only a sum of Rs.50,000/- from the Respondent/ Complainant and issued an unfilled cheque in his favour as a security and that the Respondent/Complainant, as against the trust reposed, has filled up the cheque for a sum of Rs.3,25,000/- (Rupees Three Lakhs Twenty Five Thousand only) without her knowledge and consent and presented the cheque for collection.

4. The Learned Counsel for the Petitioner/Accused urges before this Court that in order to establish her defence, she filed C.M.P.No.3935 of 2009 in C.C.No.79 of 2007 on the file of trial Court to refer the cheque to a handwriting expert to ascertain the age of the writings found in the cheque. However, the trial Court dismissed the petition on the grounds that there is no facility available in the Forensic Department to find out the age of the ink.

5. To lend support to the contention that the accused can very well request the Court to forward a document for an expert opinion, the Learned Counsel for the Petitioner/Accused relies on the decision of this Court in R.Jagadeesan V. N.Ayyasamy and another (2010 (1) CTC 424) wherein it is, inter alia, held that 'Fair trial is sine qua non of criminal jurisprudence as has been recognized under Article 21 of the Constitution of India and further, it is held that the accused can very well request the Court to forward a document for expert opinion and moreover, it is for the Court to first of all take a decision as to availability of an expert'.

6. The Learned Counsel for the Petitioner/Accused cites the decision of this Court in A.Devaraj V. Rajammal [(2011) 3 MLJ (Crl.) 440] : [2011 ALL MR (Cri) JOURNAL 154] wherein it is held thus:

"Determination of age of the ink used can be ordered by the Court where the issuance of cheque is disputed by accused, as part of fair trial to give a chance to accused to prove his case when the facility is available".

7. He seeks in aid of the Judgment of the Hon'ble Supreme Court in Criminal Appeal No.707 of 2008 dated 24.04.2008 wherein in paragraphs 9 to 12 it is observed and held hereunder:

"9. The learned trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide. The issue now almost stands concluded by a decision of this Court in Kalyani Baskar v. M.S. Sampoornam1 (in which one of us, L.S. Panta, J., was a member) wherein it was held: "12. Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. 'Fair trial' includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them."

10. However, it is not necessary to have any expert opinion on the question other than the following:

"Whether the writings appearing in the said cheque on the front page is written on the same day and time when the said cheque was signed as "T. Nagappa" on the front page as well as on the reverse, or in other words, whether the age of the writing on Ext. P-2 on the front page is the same as that of the signature "T. Nagappa" appearing on the front as well as on the reverse of the cheque, Ex. P-2?"

11. Ms.Suri, however, pointed out that the application of the appellant being one under Section 293 of Code of Criminal Procedure was rightly rejected. It is now a well-settled principle of law that non-mentioning or wrong mentioning of provision of law would not be of any relevance, if the court had the requisite jurisdiction to pass an order.

12. For the aforementioned reasons, the impugned judgment cannot be sustained. It is set aside accordingly with the aforementioned directions. Appeal is allowed."

8. The Learned Counsel for the Petitioner/Accused banks on the decision of this Court in A.Sivagnana Pandian V. M.Ravichandran [(2011) 2 MLJ (Crl) 595 at page 607], wherein in paragraphs 29 and 32, it is held as follows:

"29. ... Since various scientific avenues are available for finding out the age of the ink in a document, it must be subjected to tests as suggested by various scientists. This Court follows the ratio in the decisions in Kalyani Baskar V. M.S.Sampoornam (2007) 1 MLJ (Crl) 1020 case and T.Nagappa V. Y.R.Mudaliar (2008) 2 MLJ (Crl) 956 case above, and direct to refer the disputed document to such examination in order to provide an opportunity to the accused, when a good material is available, to rebut the presumption as per law, by non-destructive method in this regard.

32. In view of the above said study and discussion, this Court is fortified in its view that the disputed documents 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 accused to prove his defence."

9. Apart from the above, the Learned Counsel for the Petitioner/ Accused cites the order dated 01.07.2008 in Crl.M.C.No.783 of 2008 between Pavithran V. K.Retnakaran wherein in paragraphs 4 to 7 it is laid down as follows:

"4.The learned counsel for the respondent with the help of the decision in Gopal S. V. D.Balachandran (2008(1) KLD 517 (Mad.)] contends that the age of the different writings on the same cheque cannot be ascertained by the expert. The learned counsel for the petitioner refutes this assertion and points out that the Supreme Court in the latest decision in T.Nagappa V. Y.R.Muralidhar [2008 (3) Supreme Court Today 196] has taken a view that a cheque can be sent to the expert to ascertain the age of the different writings in the same cheque. I do not want to express any final opinion on that question. Certainly it is for the expert to say whether such ascertainment of the age of different writings in the same cheque is possible or not. Crl.M.C.No.783/08.

5.I am satisfied that there is merit in the contention of the learned counsel for the petitioner that denial of opportunity to the petitioner to get the cheque examined by an expert would affect his right to reasonable opportunity to establish his defence and prove his innocence. I am satisfied that this Crl.M.C. deserves to be allowed.

6.In the result,

a)This Crl.M.C. is allowed.

b)The impugned order is set aside.

c)C.M.P.No.5555/2007 is allowed and the learned Magistrate shall take necessary steps to get the opinion of the expert on the questions raised in the petition.

7.The learned counsel for the respondent/complainant submits that the only intention of hte respondent is to protract the proceedings. I am satisfied that appropriate safeguards can be provided. If ultimately the complainant succeeds, the learned Magistratemust direct payment of compensation under Section 357 (3) Cr.P.C. along with interest (at just and reasonable rate) that would be payable from the date of presentation to the date of final order."

10. He also relies on the decision of the Hon'ble Supreme Court in Kalyani Baskar V. M.S.Sampoornam [(2007) 1 MLJ (Crl) 1020 and 1021] : [2007 ALL MR (Cri) 820 (S.C.)] wherein it is held as follows:

"Fair trial includes fair and proper opportunities allowed by law to prove the innocence of accused and adducing evidence in support of the defence is a valuable right and denial of that right means denial of fair trial". "Section 243(2), Crl.P.C. Refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence, as such, Magistrate has the power to grant the request for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, unless the object is not bona fide."

11. Per contra, the Learned Counsel for the Respondent/ Complainant cites the decision of this Court in V.Makesan V. T.Dhanalakshmi [2010-2-L.W. (Crl.) 879] wherein it is observed as under:

"A perusal of all the judgments would go to clearly indicate that as of now, there is no expert in terms of Section 45 of the Indian Evidence Act available who could be in a position to offer any opinion regarding the age of the ink by adopting any scientific method."

12. He also relies on the decision of this Court in R.Jagadeesan V. N.Ayyasamy and another [2010 (1) CTC 424], wherein it is held that '... Sending documents for opinion in respect of age of writing is only futile and further direction has been issued not to send documents henceforth unless new methods are invented to find out age of writings was issued'.

13. He draws the attention of this Court to the decision in S.Gopal V. D.Balachandran [(2008) 1 MLJ (Crl) 769 at page 770] wherein it is held that 'age of the ink cannot be determined by an expert with scientific accuracy and finally request to send the cheque to an expert has been rejected'.

14. Yet another decision of this Court in K.Vairavan V. Selvaraj [2012 (5) CTC 596] is relied on the side of the Respondent/ Complainant wherein it is held that 'no such expert available in India to determine the age of ink on document' and further, it is observed that 'Moreover, application by revision petitioner for forwarding document to ascertain age of ink is only an afterthought to drag on the proceedings'.

15. The Revision Petitioner/Accused, before the trial Court, has filed C.M.P. No.3935 of 2009 seeking an order from the trial Court to accord him the permission to send Ex.P.1-Cheque to Expert Opinion for deciding the difference between the age of the signature in the cheque and the writings in the cheque.

16. A perusal of the contents of the stay petition filed by the Petitioner/Accused clearly point out that the Respondent/Complainant at the time of adducing evidence has deposed that on 17.12.2006, the Accused (Revision Petitioner) signed the Ex.P.1-Cheque which was already filled by somebody and she issued the cheque to him. Therefore, definitely the age of the writings in the cheque will be more than the age of the signature in the cheque. Admittedly, the Petitioner/Accused has filed C.M.P.No.3935 of 2009 in C.C.No.79 of 2007 on the file of trial Court under Section 45 of the Indian Evidence Act seeking an order from the trial Court to find out the difference between the age of the signature in Ex.P.1-Cheque and the writings in the cheque.

17. The Respondent/Complainant objects to the request made by the Petitioner in C.M.P.No.3935 of 2009 and submits that the request of the Petitioner/Accused cannot be accepted by a Court of Law for the simple reason that there is no method available to find out the age of the ink in Ex.P.1- Cheque.

18. At this stage, this Court worth recalls the decision of the Hon'ble Supreme Court in Union of India V. Jyoti Prakash Mitter [AIR 1971 SC 1093 at page 1098 to 1100], wherein in paragraphs 10 to 12 it is laid down as follows:

"10. After consultations between the Ministry of Home Affairs and the Ministry of Law, the Home Ministry sent certain old writings of the year 1904, 1949, 1950 and 1959, and requested the Director to determine the age of the writing of the disputed horoscope and marginal note in the almanac by comparison. The Director on April 17, 1965 wrote that it "was impossible to give any definite opinion by such comparisons particularly when the comparison writings were not made with the same ink on similar paper and not stored under the same conditions as the documents under examination", and that it "will not be possible for a document expert, however reputed he might be, anywhere in the world, to give any definite opinion on the probable date of the horoscope and the ink writing in the margin of the almanac".

11. After receiving the second report from the Director, the Ministry of Law raised the question about the opportunity to be given to the respondent before the President in the enquiry for determining the age of the respondent under Art. 217 (3) . It was then decided to refer the question to the Chief Justice of India for his advice. On July 24, 1965 the Chief Justice of India advised the President about the procedure to be adopted in the determination of the age of the respondent. Thereafter pursuant to a suggestion made by the Law Minister the Ministry of Home Affairs wrote to the respondent on July 31, 1965 requiring him to state the date or year of the horoscope. The respondent by his letter dated August 4, 1965, stated that it was not possible for him to give definitely the date or year of the horoscope but he asserted that it was at least in existence in the year 1921 when it was consulted on the occasion of his marriage. On February 23, 1965 the respondent addressed a telegram to the President requesting that an early decision of the question of his age may be reached. On March 15, 1965 he addressed another telegram to the President requesting leave to produce other documentary evidence which he claimed may be available in East Pakistan, but sometime thereafter he informed the Secretary, Ministry of Home Affairs, that owing to lack of co-operation on the part of the people in East Pakistan it was not possible to get the evidence which was mentioned in his letter to the President and that he must content himself with the evidence he had already produced and which in his view was "overwhelming". He further stated :

"You can, therefore, take it that I have no evidence to produce on the subject of my age, unless I am driven to call an expert or experts as indicated by me in my letter to you, dated 3rd February, 1965".

On August 13, 1965, copies of the reports of the Director of the Forensic Science Laboratory were forwarded by the Home Secretary to the respondent with a forwarding letter by which the respondent was informed that if he had any comments to make on the opinion expressed by the Director they may be submitted and that if the respondent desired he may also adduce evidence in rebuttal in the form of expert opinion supported by proper affidavit, and that the comments, evidence and affidavits, if any, may be sent within one month of the letter. On receipt of the letter of the Home Secretary the respondent sent a telegram addressed to the Home Secretary on September 1, 1965, praying that the President may call for all papers and documents, if not already sent for and grant him an audience, "If at all necessary". The respondent also wrote a letter on that day submitting that the evidence tendered by him was "conclusive" and there was no question of adducing any further evidence or any evidence in rebuttal. He also submitted that the entry in the Bihar and Orissa Gazette (declaring him successful at the matriculation examination) was erroneous and concluded the letter that all relevant documents be placed before the President, and that the President "may be graciously pleased to grant "him" an audience for the purpose of deciding the question of his age".

12.The file of the respondent's case was then submitted to the President. On September' 16, 1965 the President referred the matter to the, Chief Justice of India asking him for his advice. On September 28, 1965 the Chief Justice recommended that the age of the respondent be decided on the basis that the respondent was born on December 27, 1901. The Chief Justice set out in detail all the evidence including the reports of Dr. Iyengar, Director of the Central Forensic Science Laboratory, Calcutta bearing on the dispute as to the true date of birth of the respondent. The Chief Justice of India thereafter observed :

".......... the question which the President has to decide is whether the date of Mr. Mitter's birth mentioned on the occasions when he appeared for the Matriculation Examination as well as for the Indian Civil Service Examination, is incorrect; and that would naturally turn upon whether it is shown that the entry in ink on the margin of the almanac showing that Mr. Mitter was born on 27-12-1904, was contemporaneously made and is correct as alleged by him. The horoscope on which Mr. Mitter relies, refers to the date and time of his birth, but that does not help Mr. Mitter very much, because it is obviously based upon information given to Jyotish-Sastri Shri Jogesh Chandra Deba Sarma on the basis of the entry in the almanac. I have carefully considered the reports made by Dr. Iyengar, the comments on them made by Mr. Mitter, the affidavits on which Mr. Mitter relies, and the almanac and the horoscope on which he bases his case. I have also taken into account all the other relevant facts relating to the past history of this dispute, the conduct of Mr. Mitter, the grounds on which he challenged the earlier orders passed in this matter, and I have come to the conclusion that it is not shown satisfactorily that the entry in ink on the margin of the almanac was made contemporaneously and is correct as alleged by Mr. Mitter. I am, therefore, unable to accept his case that the date of his birth which was shown at the time when he appeared for the Matriculation Examination as well as for the I.C.S. Examination "was exaggerated".

I would, therefore, advised the President to hold that Mr. Mitter has failed to show that he was born on 27-12-1904 and not on 27-12-1901; and that the question about his age should be decided on the basis that be was born on 27-12- 1901".

The file containing the advice was then returned to the President. It appears however that after the file was received in the President's Secretariat, it was sent to the Secretary, Ministry ofHome Affairs for putting it up before the Home Minister before submitting it to the President. The Home Secretary on September 29, 1965 put up the matter before the Home Minister with the following endorsement :

"A summary of the case will be found at slip 'Z'. The Chief Justice of India has offered his advice in his minute........ after going into the relevant material, H.M. (Home Minister) may recommend to the President ,that the age Shri J. P. Mitter may be determined in accordance with the advice of the Chief Justice of India."

Home Minister and the Prime Minister countersigned that endorsement. The file was then placed before the President on the same day i.e. September 29, 1965. The President recorded his decision that he accepted "the advice tendered by the Chief Justice of India and "decided" that the age of Sri Jyoti Parkash Mitter should be determined on the basis that he was born on the twenty-seventh December nineteen hundred and one".

19. This Court aptly points out the decision in Yash Pal V. Kartar Singh [AIR 2003 Punjab and Haryana 344], wherein in paragraph 5, it is observed and held as follows:

"A perusal of the aforementioned provision shows that a discretion has been vested in the Civil Court to get any scientific investigation conducted only if it thinks necessary or expedient in the interest of justice. The basic rationale of the provision is that if the opinion of the scientific investigation is going to help in extracting the truth and determining the controversy raised in the dispute before the Court then such an investigation could be permitted. However, in the present case, such investigation is not likely to help to conclusively prove that the writing dated 11.2.1998 was infact recorded earlier because the age of the ink cannot be determined on the basis of the writing. If the ink is manufactured five years before the date of the execution of the document and used on 11.2.1998 for the first time then instead of resolving any controversy it would create confusion. Therefore, no useful purpose could be served by allowing such an application. It is true that opinion of expert is relevant under Sections 45 and 46 of the Indian Evidence Act, 1872 but in the present case that has to be read with Order 26. Rule 10 A of the Code. The basis rationale is whether such scientific investigation is going to advance the cause of justice and would be necessary for adjudicating upon the rights of the parties. Therefore, I do not find any ground to interfere in the well reasoned order passed by the learned Civil Judge. The revision petition does not disclose any irregularity or illegality warranting interference of this Court in exercise of its jurisdiction under Section 115 of the Code."

20. It is to be made mention of that the presumption under Section 138 Negotiable Instruments Act, 1881 is a rebuttable one. The onus of establishing that Ex.P.1-Cheque has not been issued for a debt or liability is on the Petitioner/Accused, in the considered opinion of this Court. In fact, 'Drawer' is to prove during the course of trial by adducing cogent, convincing and coherent evidence in this aspect.

21. There is a presumption in law under Section 118 of the Negotiable Instruments Act that the instrument is supported by consideration. The burden is on the Accused/Petitioner to prove what is apparent on the document is not a genuine/true one. If the execution of the pronote is admitted, then the presumption under Section 118(a) of the Negotiable Instruments Act arises. Of course, the said presumption is a rebuttable one either through circumstantial evidence or presumption of fact drawn as per Section 114 of the Indian Evidence Act. Really speaking, Section 139 of the Negotiable Instruments Act, visualises an early presumption in favour of the complainant, unless the contrary is established.

22. The ingredients of Sections 138 and 139 of the Negotiable Instruments Act are in consonance with the definition found in Section 4 of the Indian Evidence Act, 1872, which speaks of 'Presumption of Fact'.

23. A reading of the ingredients of Section 45 of the Indian Evidence Act, 1872 unerringly point out that a Court of Law in order to base an opinion on a point of foreign law, or of science, or art, or as to identity of handwriting, or finger impressions can treat the opinion upon that point of person specially skilled in such foreign law, science, or art, or in questions as to the identity of handwriting, or finger impressions as relevant facts. It is true that the opinion of such experts is admissible in evidence as 'relevant facts' under Section 45 of the Indian Evidence Act as per the decision of the Hon'ble Supreme Court in State V. S.J. Choudhry, AIR 1996 SC 1491. In fact, it is the duty of a Court of Law to find out whether any prima facie/genuine case made out by a party in seeking the aid of Law for obtaining an opinion of an Expert in order to send the cheque either for ascertaining the age of the ink in signature or in respect of other contents of the cheque.

24. A Court of Law is to be diligent and vigilant especially when an expert witness is in the box for the purpose of answering questions by the other side. Every witness ought to be fit or expert in the matter upon which he presents his supposed knowledge. Indeed, the competence of an expert has to be questioned in the trial Court as per the decision of the Hon'ble Supreme Court in Srichand v. S., AIR 1974 SC 639. An expert witness evidence will have to be taken into account by a Court of Law along with other available evidence and materials on record in a given case, as opined by this Court.

25. No doubt, Section 243 of Code of Criminal Procedure, provides a valuable right to the Petitioner/Accused to examine defence witnesses. If the Petitioner/Accused decides/desires to examine an Expert and to obtain his opinion in a given matter in issue, then, it is open to him to examine the said Expert in accordance with law. However, the said valuable right must not be exercised by the Petitioner/Accused in a vexatious or in a frivolous manner or solely with a view to procrastinate the pending proceedings or to defend the ends of Justice.

26. One cannot ignore a vital fact that if an Expert submits his report and deposes in evidence, the same will have to be looked into by the trial Court along with other available oral and documentary evidence on record at the time of disposal of the main case. There is no two opinion of the fact that inbuilt safeguard provided as per Section 243 Cr.P.C., is a valuable right given to the Accused in the Accusatorial Proceedings in our Criminal Justice System.

27. As far as the present case is concerned, the Revision Petitioner/Accused in C.M.P.No.3935 of 2009 in C.C.No.79 of 2007 before the trial Court has categorically stated that the Complainant (Respondent in Revision) and his sister A.Lyla Regini filled the blank signed cheque according to their whim and fancy without the knowledge of the Petitioner/Accused. Further, it is also stated in the Miscellaneous Petition (before the trial Court) that '.... So definitely the age of the signature in the cheque will be more than the age of the writings in the cheque'. Further, the Respondent/Complainant in C.C.No.79 of 2007 has deposed that on 17.12.2006 the Petitioner/ Accused signed the Ex.P.1-Cheque which was already filled up by somebody and she issued the cheque to him. There is no bar under the Negotiable Instruments Act for a third party or a stranger to fill up the cheque or to make writings in the cheque and that too when the Petitioner/Accused has focussed her signature in Ex.P.1-Cheque and admitted the same.

28. Section 20 of the Negotiable Instruments Act, 1881 speaks of inchoate instruments. If a person who has signed the cheque in question and delivers the said cheque to another by not filling up the writings of the cheque viz., the writing of the amount and subsequently, if the holder of the cheque either himself makes the writings of the amount in the cheque or even allows a stranger/third party to write the writings in regard to the amount and that too in a different ink, yet, it cannot be found fault with, since the Negotiable Instruments Act permits such an act to be performed, which is not either invalid or illegal, in the eye of law.

29. It is to be borne in mind that the ingredients of Section 20 of the Negotiable Instruments Act would not be attracted either as a matter of routine or automatically. However, these are all matters of evidence to be adduced by the parties before the trial Court. Before coming to the conclusion as to the application of Section 20 r/w. Section 118 of the Negotiable Instruments Act, no wonder, the burden of proof should be applied in a proper manner.

30. From the upshot of detailed discussions, it is palpably clear that the age of the writing in the cheque cannot be found at all so as to enable an expert to offer his opinion. Moreover, as on date, in regard to sending of documents for examination by a handwriting expert for the purpose of finding out the difference between the age of the signature in the cheque and the writings in the cheque, there is no method available in our country. As such, it is only otiose for the Revision Petitioner/Accused to make a request to the trial Court to send Ex.P.1-Cheque for an expert's examination with a view to find out the difference between the age of the signature in the cheque and the writings in the cheque. It is true that the Accused has a valuable right in his favour when he makes a request for sending Ex.P.1-Cheque to an expert in order to find out the difference between the age of the signature in the cheque and the writings in the cheque. But when a facility or method as on date in our country is not available to find out the age of the writing in the cheque, then, no useful purpose will be served when a Court of Law passes an order in acceding to the request of the Petitioner for sending Ex.P.1-Cheque for obtaining an opinion from the expert in regard to the age of the writing/ink etc. Viewed in that perspective, the Criminal Revision Petition sans merits.

31. In the result, the Criminal Revision Petition is dismissed. The order passed by the Learned Judicial Magistrate No.II, Kuzhithurai in C.M.P.No.3935 of 2009 dated 06.07.2011 is affirmed by this Court for the reasons assigned in this Revision. Liberty is granted to the respective parties to raise all factual and legal pleas before the trial Court in C.C.No.79 of 2007 (which is a part-heard stage case) and the trial Court is directed to permit the parties in this regard. Since C.C.No.79 of 2007 is part-heard stage and taking note of the fact that Ex.P.1-Cheque is of the year August 2006, this Court, in the interest of Justice, Fair Play, Good Conscience and even as a matter of prudence, directs the trial Court to dispose of C.C.No.79 of 2007 in any event within a period of three months from the date of receipt of copy of this order. Further, the Learned Judicial Magistrate No.II, Kuzhithurai is directed to send a Compliance Report as to the disposal of C.C.No.79 of 2007 to the Registrar (Judicial), Madurai Bench of Madras High Court promptly and without fail. The parties are directed to lend their assistance and co-operation to the trial Court in regard to the completion of trial of C.C.No.79 of 2007 in complete and comprehensive manner (of course after providing due opportunities to the parties concerned). Consequently, connected Miscellaneous Petition is also dismissed.

Revision dismissed.