1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Revision Case(MD)Nos.339 and 340 of 2011 and M.P.Nos.1 and 2 of 2011 Sasikumar : Petitioner/Petitioner in both Crl.RCs. Vs. N. Chadrabose : Respondent/Respondent in both Crl.RCs. PRAYER: Criminal Revision Petitions filed under Section 397 r/w 401 of the Code of Criminal Procedure, to set aside the orders passed in Crl.M.P.No.1504 of 2011 in S.T.C.No.1101 of 2008 and Crl.M.P.No.1506 of 2011 in S.T.C.No.1102 of 2008 dated 21.03.2011 on the file of the Judicial Magistrate No.1 Ramanathapuram. For Petitioner : Mr. M. Subash Babu [in both Crl.R.Cs.] For Respondent : Mr. R. Anand for [in both Crl.R.Cs.] Mr. AR. Nambunayagam COMMON ORDER Because of the inter connectivity of both the cases and the reason being the both parties are same to both the matters, this common order is passed. 2. The petitioner is accused in STC Nos.1101 of 2008 and 1102 of 2008 before the Judicial Magistrate No.1, Ramanathapuram. These are the cases taken on file on private complaints filed by the respondent on the strength of the cheques issued to him by the petitioner. Pending the trial of the cases, the petitioner filed applications in both the cases under Section 73 and 45 of the Indian Evidence Act and under Section 243 (2) of Cr.P.C. to refer the cheques as well as the acknowledgment card for hand writing expert. 3. In those petitions, it is stated that during February 2007, the petitioner obtained loan of Rs.4,00,000/- and issued cheques for the said amounts in which the amount and the signature of the accused were written by the accused. But the name of the complainant, date and amount were written by some other person and hence in order to prove that both the above said writings were written by different inks, the cheques have to be referred for ascertaining the age of the ink. 4. In Ex.P.5 acknowledgment Card, the accused has not signed. The admitted signature in the cheque marked as Ex.P.1 and the signature available in Ex.P.5 are different. Hence, both the documents have to be sent for hand writing expert for getting his opinion. 5. In the counter filed by the respondent, the following are stated: Since the accused has admitted his signatures in the cheques, there is no scope for referring the documents for ascertaining the age of the https://hcservices.ecourts.gov.in/hcservices/ 2 ink. There is no necessity for the accused to establish the same. Even if the analyst renders opinion, it would lead to confusions. Even if the particulars in the cheque are typed, when the accused admits his signature, it is sustainable. From 2008 on wards for about three years, the petitioner has been remaining without raising any defence. In the connected case the petitioner paid Rs.1,00,000/- to the respondent in S.T.C.No.1103 of 2008 and for the balance of Rs.3 lakhs the present cases are pending. Hence, these petitions may be dismissed. 6. After hearing both sides, the learned Judicial Magistrate No.I, Ramanathapuram, has dismissed both the applications by separate orders. Hence these revisions. 7. Learned counsel for the petitioner Mr.Subash Babu would contend that even though if the petitioner admits his signatures in the cheques, he disputes the signature in Ex.P.5 postal acknowledgment, that there is every necessity for him to show the age of the inks contained in the cheques and hence, the petitions have to be ordered. 8. Per contra, Mr.R. Anand, the learned counsel for the respondent would argue that the petitions have been filed belatedly and for this reason alone they have to suffer dismissal, that since the defence has come on a later occasion, these petitions need not be entertained. 9. The learned counsel for the petitioner would place reliance upon a decision of mine reported in 2011(3) CTC 616 [Elumalai v. Subbaramani] wherein I have reached a conclusion that age of the ink can be ascertained by the expert, after following the decisions of the Supreme Court in T.Nagappa v. Y.R.Mudaliar, 2008 (5) SCC 633 and Kalyani Baskar v. M.S. Sampoornam, 2007 (2) CTC 364 (SC) = 2007 (2) SCC 258 - 2007 (1) SCC (Cri) 577 wherein their Lordships have held that if the disputed document would furnish the accused a good material to rebut the presumption, he should not be deprived of that opportunity. 10. Another judgement of this Court in 2010 (2) MLJ (Crl.) 892 [A. Jesudhasan v. N. Gopi] is also cited by the petitioner's side, in which a similar observation has been made, following Kalyani Baskar's case above. 11. In 2011-1-L.W.(Crl.) 44 [A. Devaraj v. Rajammal] G.M.Akbar Ali,J. also followed the decision of Kalyani Baskar's case (supra) and held that the accused has a right to rebut the presumption by getting hand writing expert opinion on the signatures of the disputed cheque. Any denial of such opportunity is denial of fair trial. 12. The learned counsel for the respondent would place reliance upon a decision of this Court in 2007 (2) MWN (Cr.)DCC 8 [Naseema v. Shareefa] in which the prayer of the accused to send Ex.P.1 cheque for expert opinion after prosecution evidence was closed and when the case was posted for questioning the accused under Section 313 Cr.P.C. was rejected by this Court. In the above said decision, it is also observed that since the petitioner admitted the signature in cheque, he is estopped from raising the plea to compare the signature in cheque with the admitted signature, as there is no necessity for expert opinion. But in this case, the facts are otherwise. The accused disputes the signature in Ex.P.5 Acknowledgment Card. https://hcservices.ecourts.gov.in/hcservices/ 3 13. It is argued on behalf of the respondent that when the acknowledgment card was marked as Ex.P.5, no objection emanated from the side of the accused for marking the document. It is true, that the petitioner did not pray the Court to record his objection at the time of marking of Ex.P.5, but when P.W.1 was cross examined, specific questions were put to him that the signature in the acknowledgment card does not belong to the accused and that with the connivance of postman the signature in the acknowledgment card was created. Hence, objection to the signature in the acknowledgment card is well on record. 14. The learned counsel for the respondent also cites another decision of this Court in 2011 (3) MLJ (Crl.)44 [Prema v. D. Ramaswamy] in which also it is observed that the applicant has to be non-suited for the relief when he comes to the court with petition to send the documents for hand writing expert's opinion after questioning under Section 313 Cr.P.C and that it is well settled that the admission needs no proof. The Court in the above said cases found no bona fide reasons in favour of the accused. As observed earlier the dispute as regards signature in the acknowledgment card is already on record. Hence, there is no flaw in praying for expert's opinion. 15. Learned counsel for the respondent also relies upon a decision of the Andhara Pradesh High Court in 2006 (1) MWN (Cr.) (DCC) 19 (A.P.) [Gorantla Venkateswara Rao v. Kolla Veera Raghava Rao and another] wherein the learned judge has observed that when the signature is admitted, there is nothing wrong in the cheque for the contents to be typed. But as per the Supreme Court, when good material is available for the accused in the cheque to rebut the presumption, opportunity should not be denied to him. 16. In Elumalai's case above, it is observed by me that it is the view of the Supreme Court that some delay in taking steps for referring the document to the wisdom of the expert cannot be a legal embargo for entertaining the plea. 17. In view of the said observations and following the decisions of the Supreme Court, I am of the firm view that the documents have to be referred to the expert for ascertaining the age and for comparison of signatures in the cheques and the acknowledgment card. Hence the orders passed by the Court below which are challenged before this Court are liable to be set aside and accordingly they are set aside. 18. In the result, both the Criminal Revision Petitions are allowed. The trial Court shall follow the settled procedure for referring the documents to the hand writing expert and also for ascertaining the age of the ink. Connected Miscellaneous Petitions are closed. ggs Sd/- Assistant Registrar[Crl side] /True copy/ To Sub Assistant Registrar THE JUDICIAL MAGISTRATE NO.1, RAMANATHAPURAM DISTRICT. +2 CC TO M/S.M.SUBASH BABU, ADVOCATE SR.NO.33738 & 33739. +1 CC TO M/S.A.R.NAMBUNAYAGAM, ADVOCATE SR.NO.33748. Common Order in: 3P/5C Crl.R.C.(MD)Nos.339 & 340 of 2011 RPB : 20.10.2011 DATED:28.09.2011 https://hcservices.ecourts.gov.in/hcservices/