S.B. Criminal Miscellaneous (Petition) No.3093 of 2018

9th July, 2018.

Petitioner Counsel: Mr. SHASHANK AGARWAL
Respondent Counsel: Mr. PRAKASH THAKURIYA

Cases Cited:
Sudarshan Kumar Vs. Manish Manchanda, 2015 (4) RCR (Cr.) 68 [Para 7]
Uppu Jhansi Lakshmi Bai Vs. J. Venkateshwara Rao, 1994 AIR (AP) 90 [Para 8]
Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, 1963 ALLMR ONLINE 336 (S.C.) : AIR 1964 SC 529 [Para 8]
S.Gopal Vs. D. Palachandran, 2008 (2) RCR (Cr.) 466 [Para 9,10,11]
T. Rajalingam @ Sambam Vs. State of Telangana & Anr., 2017 ACD 690 [Para 11]

JUDGMENT

JUDGMENT :- The present petition has been filed under Section 482 Cr.P.C. praying that the order dated 9.5.2018 passed by the learned Special Metropolitan Magistrate (NI Act Cases) No.5, Jaipur Metropolitan, Jaipur whereby prayer of the petitioner to send the cheque in question to Forensic Science Laboratory (hereinafter called as 'FSL') for analysis, especially for determination of age of ink was dismissed, be set aside.

2. Briefly stated, the complainant/respondent had filed a complaint under Section 138 of Negotiable Instruments Act, alleging that the complainant had given a loan of Rs.2,60,000/- in September, 2012 to the petitioner. It was further alleged that in lieu thereof, petitioner had issued a cheque and the said cheque on presentation had bounced. The petitioner accused in statement recorded under Section 313 Cr.P.C. took a definite stand that he had taken loan of only Rs.30,000/- from the complainant and he had paid the same in cash.

3. In the present case, it is contended that the complainant/respondent has alleged that the loan was given to the accused in September, 2012 and the cheque was also handed over to him on the said date.

4. During the course of arguments, the learned counsel for the petitioner has submitted that blank cheque was filled later by the complainant and in fact, the cheque was handed over on 11.6.2012.

5. On the basis of above stand taken, an application was filed before the trial court that the cheque be sent to FSL for determination of the age of ink and handwriting on the cheque.

6. The controversy raised in the present petition is not new to the courts.

7. Single Judge of Punjab & Haryana High Court in Sudarshan Kumar vs. Manish Manchanda reported in 2015 (4) RCR (Cr.) 68, after taking entire case law into consideration held as under:-

"3. Learned counsel for the petitioner contended that the cheques in question have been fabricated. These blank cheques were issued in the year 2008 for the purpose of security for the loan advanced to Harjinder Kumar, the brother of the petitioner. These cheques were later on manipulated in the year 2011 by filling in the body of the cheque. He contended that the determination of the age of the writing/ink used to fill the body of the cheque is essential for the just decision of the case and the application of the petitioner has been wrongly dismissed by the learned Magistrate. To support his contentions, he relied upon case T. Nagappa v. Y.R. Muralidhar, 2008(3) RCR (Criminal) 926 (SC).

4. I have duly considered the aforesaid contentions.

5. As per the contentions raised by learned counsel for the petitioner, it is alleged that the cheques in question have been manipulated later on by filling in the necessary particulars in the body of the cheques. He has pleaded that the cheques in question should be sent to the Forensic Science Laboratory to determine the age of the ink used to fill in the necessary particulars in the body of the cheques. But in my opinion, it is not possible for a document expert to give any definite opinion about the age of the ink as it is not known in which year the ink used to write the document was manufactured. The Constitutional Bench of Hon'ble Supreme Court in case Union of India v. Jyoti Prakash Mitter, AIR 1971 SC 1093, elaborately dealt with this issue and laid down as under :-

"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"."

6. This Court in case Yash Pal v. Kartar Singh, 2003 (3) RCR (Civil) 701, has also laid down that expert opinion to check the age of ink cannot help to determine the date of writing of the document as the ink used in the writing of the document may have been manufactured years earlier.

7. In case Tarsem Singh v. Ravinder Singh 2014(11) RCR (Civil) 2112, this Court has again reiterated that there is no scientific method available for determine the age of the ink. In case S. Gopal v. D. Balachandran 2008(2) RCR (Criminal) 466, the Hon'ble Madras High Court has taken the same view and laid down that the age of the ink cannot be determined by an expert with scientific accuracy. The same legal position has been reiterated in cases R. Dennis Raja v. T. Subbiah 2012 (3) RCR (Criminal) 212, K. Vaiavan v. Selvaraj 2012(4) RCR (Criminal) 942 and Vinod Maroti v. Jitendra 2015 ACD 198 : Law Finder Doc Id # 529385.

8. Thus, in view of the consistent rule of law laid down in the cases referred above, it will not be possible for an expert to give any definite opinion on the age of the ink as there is no accurate scientific method to determine the age of the ink. Cases T. Nagappa v. Y.R. Muralidhar (supra) relied upon by learned counsel for the petitioner is of no help to him in view of the judgment of the Constitutional Bench of Hon'ble Apex Court in Union of India v. Jyoti Prakash Mitter (supra). Consequently, the impugned order passed by the learned Judicial Magistrate First Class, Ludhiana does not suffer from any illegality"

8. Similar view was reiterated by Andhra Pradesh High Court in the case of Uppu Jhansi Lakshmi Bai vs. J. Venkateshwara Rao reported in 1994 AIR (AP) 90, wherein reliance was placed upon the judgment of Supreme Court in case of Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 Supreme Court 529 : [1963 ALLMR ONLINE 336 (S.C.)] at 537 and it was held as under:-

"7. The learned Counsel for the petitioner contends that the present move on the part of the defendant for obtaining the opinion of the Expert is intended to procrastinate the trial. Even otherwise, no purpose would be served by obtaining the opinion of the Expert as to the age of the ink since it is totally an irrelevant factor for the adjudication of the dispute. In support of his contention, he relies upon the following passage occurring in the decision of the Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 Supreme Court 529 at 537.

"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 page 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.' In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances."

8. I am not inclined to agree with the submissions of the learned Counsel. The opinion of an expert is relevant under Section 45 of the Evidence Act. It is and accepted principle of law that the science of hand-writing is not an accurate one and there is likelihood of errors creeping in, when a hand-writing expert gives his evidence and therefore, such evidence should be received with caution. What is the evidentiary value of a hand-writing expert and whether or not in conjunction with the other evidence available, the evidence of the expert supports the case of the plaintiff, are matters for decision by the trial judge. The passage from the decision of the Supreme Court extracted supra is not an authority for the proposition that the evidence of the hand-writing expert should not be brought on record for the purpose of determining the age of the disputed hand-writing. The opinion of Albert S. Osborn', quoted with approval by the Supreme Court, was expressed by the learned author in the following context:

"There are those also who pretend to say how old a writing is by merely examining it with a hand magnifier or a microscope. The always is an exhibition either of ignorance or of dishonest presumtion. 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 as can easily be demonstrated by fair tests on documents of known age."

9. The learned author also expressed the view that:

"......By recording the color as first seen, any 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 means of showing that the document is not genuine. If a writing of this kind purports to have been writing long before and it can be shown that the ink has not yet reached its final depth of colour, and it actually goes through those changes that are characteristics of ink during the first months or year of its history, it is only necessary to prove this fact to invalidate the document."

9. Having held so, the court had rejected the prayer for sending the documents for determination of age of ink to the FSL. In S.Gopal vs. D. Palachandran reported in 2008 (2) RCR (Cr.) 466, it was held that the age of ink cannot be determined by an expert with scientific accuracy. In Para 13 and 14 of the judgment, it was held as under:-

"13. In Yash Pal v. Kartar Singh, 2003(3) RCR(Civil) 701 : (AIR 2003 Punjab and Haryana 344), it has been observed that the age of the ink cannot be determined on the basis of the writing if the ink in dispute was manufactured five years prior to the date of execution of the document and used effectively on a particular date for the first time and an expert's opinion as to the age of ink will not resolve any controversy, but, it will help to create only confusion.

14. As rightly observed by the Punjab and Haryana High Court in the ratio referred to above, if an old ink is used by the person, who assisted the drawer who had already put his signature in the cheque, to fill up the matter, no useful purpose will be served if such a cheque is analysed by the expert for rendering an opinion. "

10. Dealing with the prayer made regarding determination of age of the ink, in S.Gopal's case (supra), Madras High Court held that it is not legally required that cheque should be filled by the person who has signed the same. The court considered the scope of Section 20 of Negotiable Instruments Act and held that the law nowhere prescribes that in case of Negotiable Instruments, the entire body of the instrument shall be written only by the maker or drawer of the instrument. The court held that once the execution is admitted, it shall be assumed that the cheque was issued by the accused in favour of the complainant towards discharge of liability, even in a case where the cheque was filled by some other person.

11. In view of above, the judgment rendered by Telangana and Andhra Pradesh High Court, in T. Rajalingam @ Sambam vs. State of Telangana & Anr., reported in 2017 ACD 690, relied by the learned counsel for the petitioner qua sending the cheque for determination of age cannot be accepted as there is no scientific accurate test available for determination of age of ink. Furthermore, as held by Madras High Court in S.Gopal's case (supra) possibility that old ink was used by the person for filling the cheque cannot be ruled out.

Ordered accordingly.