IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 CRL.A.No. 907 of 2002() ----------------------- CC.30/2001 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOZHIKODE ........................................................................................... APPELLANT(S): COMPLAINANT: ---------------------------------------------- K.BABURAJ, S/O. SANKARAN, OMMINIKOTTU PARAMBA, KALLAI, KOZHIKODE. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE RESPONDENT(S): ACCUSED & STATE: ------------------------------------------------------- 1. GEETHA SAILENDRANATH, W/O. SAILENDRANATH, HOUSE NO.30/1928, MAHIMA HOUSE, P.O. CHEVAYUR, CALICUT-17. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.907 OF 2002 -------------------------- Dated this the 12th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the judgment of acquittal passed by the Judicial First Class Magistrate Court – II, Kozhikode, in C.C.No.30/01. The complainant in that case is the appellant before this Court. It is the case of the complainant that the accused had borrowed a sum of Rs.1 lakh, in May 1999 and towards the discharge of the liability, had issued a cheque on 12.07.1999, which when presented for encashment, returned with the endorsement of `insufficiency of funds’. Thereafter, the notice was issued and prosecution was launched. The defence appears to be that there was some transaction between the husband of the accused and one A.V.Prakash and for that purpose she had entrusted two blank signed cheques to the husband, which he might have entrusted to Mr.Prakash and one of such cheque leaf should have been utilized for the purpose of filing this case. 2. The evidence tendered is the depositions of PWs 1 and 2 and DWs 1 to 3. In examination, the complainant has admitted that the CRL.A.No.907 OF 2002 2 cheque was written and signed in his presence. The defense case is that, only a blank signed cheque was given and the filling was done by somebody else at a later point of time and therefore the cheque is not admitted to be executed. In order to find out the same, after the closure of the prosecution evidence under Section 313 of the Code of Criminal Procedure questioning, a petition was filed to send the document for expert opinion and accordingly it was sent to DW2 for comparison of the hand writing. In order to have the comparison of the hand writing, specimen hand writings were taken from the court and it was sent along with disputed writings in Ext.P1 for comparison. The expert opined that, going through the individual characteristics of the hand writing, there appears to be difference and so it does not appear that, the hand writings in Ext.P1 and specimen hand writings are written by the same person. 3. Under Section 73 of the Evidence Act, there is a method of comparison of hand writing by Court, but the Apex Court had CRL.A.No.907 OF 2002 3 cautioned that it was a hazardous task, for the reason that the court is not an expert in that field. So most probably, on the basis of that, making use of Section 45 of the Evidence Act and the powers vested in Court, the hand writing had been sent for comparison to the expert. It has to be remember that, when a person develops in age, there will be difference in hand writing as well. A person may become sick and most probably will loose the very many characteristics of his hand writing, which he really has. Instances are also not rare that in the process of years, one may tend to change the style of writing also. So when a comparison of the signature or hand writing is to be done, it is always safer to send the writings of a contemporaneous period for comparison, so that the scientific proximity and precision will be almost fully proved. Suppose there is a long gap between the hand writings to be sent for comparison and if it is taken from the court , necessarily it will have disadvantages. Moreover, in a case where the accused disputed the hand writing and with that mind he gives specimen CRL.A.No.907 OF 2002 4 hand writing which is to be sent for comparison it is nothing but natural, that he will have the tendency to change his style of writing. That is why the courts have held that, when specimen hand writing is taken after the litigation has started it will be very unsafe. But unfortunately, in this case the court has not applied its mind to this factor. The learned senior counsel would contend that it has resulted in injustice. Unfortunately, I do not find any question with respect to the same was put to the expert when she was in the box. When the court relies upon the scientific finding, it must be a finding which is leak proof and an acceptable one. If it is not so it will result in arriving at a wrong conclusion. Therefore, there is considerable force in the learned counsel's contention that injustice has been done in this case. What is the procedure to be adopted is the next question. It has to be found whether this person had executed any document during the period 1998 or 1999 or 2000. If such documents are available, her hand writing therein can be made use of for the purpose of comparison with the disputed writing in CRL.A.No.907 OF 2002 5 Ext.P1 cheque. If there is no such document available one has to go back to the period of 1993 or so for the reason that there will be documents in the bank to show her writings during that period. Further I find from the evidence of PW1, that there was a witness to the transaction and if the complainant wants to examine him, then certainly that can also be allowed. Needless to say that the accused is permitted to adduce other evidence in support of her contention. From this discussion, I find that the judgment of the court below requires interference and its order of acquittal has to be set aside and remitted back to the said court with the following directions :- 1. The court below is directed to permit the complainant to direct the accused to produce the hand writings for the period relating to 1998-2000 and if it is available send this hand writings for comparison by the expert at the expense of the complainant. If such a hand writing is not available, then if the hand writing in the bank where the account of the accused was there may be called for CRL.A.No.907 OF 2002 6 and the said hand writing may be sent for comparison by the expert. 2. The complainant as well as the accused be permitted to adduce additional evidence as well in support of the respective contention. It is desirable that the same expert is directed to compare, so that the one will be able to know the difference. The complainant is directed to appear before the court below on 27.7.2009 and after the appearance take out the summons to the accused, as he is not represented by the counsel before this court for carrying out the direction of this court. If the accused does not co-operate, then necessarily the court has to consider the discussion made by me in this judgment for a final disposal of the matter. Accordingly the appeal is disposed of. M.N.KRISHNAN, JUDGE ami.