1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 25.07.2011 Coram: The Honourable Mr. Justice S.PALANIVELU Crl.RC.(MD).No.466 of 2011 and M.P.(MD)No.1 of 2011 Vairamani .. Petitioner/Accused vs. K.Chidambaram, S/o.C.T.Kumarappan, 20, South Mount Road, Tirunelveli, (Tirunelveli Town Police Station Limit) through his Power of Attorney A.Rajamani, S/o.Arumugam, 60,A.P.Mada Street, Tirunelveli Town. .. Respondent/Complainant Criminal Revision Petition filed under Section 397 r/w. 401 of Criminal Procedure Code to set aside the order dated 25.05.2011, made in Cr.M.P.No.1607 of 2011 in S.T.C.No.6715 of 2005, on the file of the Judicial Magistrate No.IV, Tirunelveli. For Petitioner : M/s.C.Jeyaprakash For Respondent : (*) Mr.S.Meenakshi Sundaram O R D E R This Criminal Revision is preferred to set aside the order dated 25.05.2011, made in Cr.M.P.No.1607 of 2011 in S.T.C.No.6715 of 2005, on the file of the Judicial Magistrate No.IV, Tirunelveli. 2. Heard the learned counsel for the petitioner. (**) 3. The petitioner is the accused in S.T.C.No.6715 of 2006, on the file of the learned Judicial Magistrate No.IV, Tirunelveli, which is a private complaint filed by the respondent under Section 138 of the Negotiable Instrument Act on the strength of a cheque reportedly delivered to him by this petitioner. Pending the trial of the case, the petitioner filed Cr.M.P.No.1607 of 2011 under Section 45 of the Indian Evidence Act, requesting the Court below to refer the disputed cheque to the Forensic Science Department for ascertaining the age of ink of all columns in the cheque. https://hcservices.ecourts.gov.in/hcservices/ 2 4. After considering the submissions of both sides, the learned Judicial Magistrate No.IV, Tirunelveli, dismissed the application by observing that the expert cannot scientifically ascertain, at what point of time the writings were made in the cheque and that the petitioner has to strengthen and establish his contentions by examining witnesses and that there is no ground to send the cheque for ascertaining the age of the ink. This is the order challenged before this Court. 5. It is stated in the petition that during the year 2002, the petitioner was having chit transactions with one C.T.K.Meiyappan and he (petitioner) delivered a cheque to him as a security, that after the chit transactions were over, the said C.T.K.Meiyappan did not return the cheque to him, that the complainant is the own brother of the above said C.T.K.Meiyappan and the respondent has filed this case after getting the cheque from his brother as if the petitioner delivered the same on 06.05.2005 for Rs.1,00,000/- and hence, the difference in the ink found in the signature of the petitioner and other contents of the cheque has to be ascertained by an expert. For that purpose, the cheque may be referred to an expert. 6. In support of his contention, Mr.C.Jeyaprakash, the learned counsel for the petitioner placed reliance upon the decision of this Court reported in 2011-1-L.W.(Crl.) 297 (A.Devaraj v. Rajammal), wherein it has been held that a fair trial requires that a chance must be given to the accused/petitioner as he has taken a definite stand that the cheque was issued to a different person in the year 1998-1999 and the same was used by the complainant in the year 2004. G.M.Akbar Ali, J. in the said judgment has referred to the decisions of the Hon'ble Apex Court as well as this Court. 7. The learned counsel for the petitioner also relied upon a decision of mine, reported in (2011) 2 MLJ (Crl) 595, A.Sivagnana Pandian v. M. Ravichandran, wherein I have concluded that the scientific methods are available to ascertain the age of ink and hence, for this purpose, the Court below has to refer the same to an expert. I have followed the principles of the Hon'ble Apex Court laid down in 2007 (1) Crimes 106 (SC), (Kalyani Baskar vs. M.S.Sampornam) and also (2008) 5 SCC 633 (T.Nagappa v. Y.R.Mudaliar) and observed that if any good material is available to the accused in a case to rebut the presumption, he should not be denied opportunity to establish the same. 8. In the above said circumstances, this Court is of the considered view that scientific avenues are available to find out the age of the ink and hence, the order challenged before this Court is to be set aside and it is accordingly set aside. https://hcservices.ecourts.gov.in/hcservices/ 3 In the result, the Criminal Revision case is allowed. Consequently, connected miscellaneous petition is closed. The learned Judicial Magistrate No.IV, Tirunelveli, is directed to observe settled procedures to refer the documents to the expert. Sd/- Assistant Registrar(RTI) (*) Amended (**) Deleted as per order dated 25.8.2011 on being mentioned made in Crl.R.C (MD) No.466 of 2011 /True Copy/ Sub Assistant Registrar To [To be substituted for the orders already despatched on 3.8.11] The Judicial Magistrate No.IV, Tirunelveli +1 CC to Mr.C.Jeyaprakash Advocate SR.No.24543 +1 CC to Mr.S.Meenakshi Sundaram Advocate SR.No.29052 Crl.RC.(MD).No.466 of 2011 25.07.2011 srm/SMA/2.8.2011/3C/2P NSV/5.9.11/3P/4C https://hcservices.ecourts.gov.in/hcservices/