IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 21.01.2010 Coram The Honourable Mr. Justice S.NAGAMUTHU Crl.R.C.Nos.49 and 50 of 2009 and M.P.Nos.1 and 2 of 2009 R.Jagadeesan .. Petitioner in both Crl.R.C. Vs. N.Ayyasamy .. Respondent in Crl.R.C.49/09 K.Meignanavel .. Respondent in Crl.R.C.50/09 Prayer in both Crl.R.Cs.:- Criminal Revision Petitions filed under Section 397 r/w. 401 of the Code of Criminal Procedure against the order passed by the Judicial Magistrate No.II, Erode, in Crl.M.P.Nos.7097 and 7098 of 2008 respectively in C.C.Nos.599 and 598 of 2007 respectively. For Petitioner : Mr.S.Jayakumar For Respondents : Mr.N.Manokaran COMMON ORDER An important question as to whether the Courts can order to send documents for Forensic opinion regarding the age of the writings and signatures on disputed documents has arisen for consideration in these revisions. 2. The respondents in these two revisions, who are the accused facing prosecution for an offence under Section 138 of the Negotiable Instruments Act, filed petitions before the learned Judicial Magistrate seeking to forward the cheques in question for examination by the Director of Forensic Science, Chennai to express opinion regarding the age of the writings as well as the signatures found on the cheques. The learned Magistrate concerned allowed both the petitions. Aggrieved over the same, the petitioner, who is the complainant in those cases, is before this Court with these https://hcservices.ecourts.gov.in/hcservices/ revisions. 3. It is contended by the learned counsel for the petitioner that the lower Court has allowed the petitions without having regard to the fact that there is no scientific method available in this State with the Director of Forensic Science to scientifically test and find out the exact age of any writings or signatures. He would rely on a Judgment of this Court reported in (2008) 1 MLJ (Crl) page 769 (S.Gopal Vs. D.Balachandran) wherein, a learned Judge (Mr.Justice M.Jeyapaul) has taken a view that the age of the ink cannot be determined by an expert with scientific accuracy. He also relies on a Judgment of High Court of Punjab and Haryana reported in AIR 2003 PUNJAB AND HARYANA page 344 (Yash Pal Vs. Kartar Singh), wherein also similar view has been taken. 4. Per contra, the learned counsel appearing for the respondents would submit that sending the documents for comparison by an expert is part of fair trial to be afforded to an accused under Article 21 of the Constitution of India. He would rely on a Judgment of the Hon'ble Supreme Court in T.Nagappa Vs. Y.R.Muralidhar reported in (2008) 5 Supreme Court Cases page 633, wherein, according to the learned counsel, in a similar situation, the Hon'ble Supreme Court has directed to send the documents for comparison by an expert in respect of the age of the writings. He would further submit that subsequently, when a similar question arose, a learned Single Judge of this Court (Justice S.Palanivelu) after having considered the view expressed in S.Gopal's case cited supra and the Judgment of the Hon'ble Supreme Court in T.Nagappa's case, has held in V.P.Sankaran Vs. R.Uthirakumar reported in 2009 INDLAW MAD 1077 that documents can be subjected to such scientific test by an expert in this regard. Therefore, according to the learned counsel, the lower Court was right in directing the documents to be forwarded for comparison by an expert for opinion. 5. I have considered the rival submissions. 6. There can be no denial of the fact that the accused needs to be afforded a fair trial to exhaust all his defences available to him. Fair trial is the sine qua non of criminal jurisprudence and the same has been recognised as a fundamental right under Article 21 of the Constitution of India. To prove that the handwriting was not made by him or that the signature was not made by him, the accused can very well request the Court to forward the document for expert opinion. But the question is, in respect of the age of the writings on a document whether there is any expert in terms of Section 45 of the Evidence Act, who shall be competent to examine the same scientifically and to offer his opinion. The term expert denotes, persons specially skilled in the particular https://hcservices.ecourts.gov.in/hcservices/ field. Under Section 45 of the Evidence Act, it is for the Court to first of all take a decision as to whether a particular individual is an expert in the particular field for a particular purpose. In such a way, if it is found that there is an expert who can find out the age of the writings on a document by means of any scientific method, certainly he would fall within the ambit of Section 45 of the Evidence Act to offer such opinion. But the learned counsel for the petitioner would submit that there is no such scientific method available for offering any such opinion. 7. In order to ascertain the correctness of the said statement, this Court had requested the learned Additional Public Prosecutor Mr.N.R.Elango to request either the Director or the Assistant Director, Document Division, Forensic Science Department, Chennai to be present before this Court to explain the position. Accordingly, today, Mr.A.R.Mohan, Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu, Chennai is kind enough to be present before this Court. According to him, he is the Head of the document division of the department. On a query made by this Court regarding the above position, he would explain to this Court that there is no scientific method available anywhere in this State, more particularly, in the Forensic Science Department, to scientifically assess the age of any writing and to offer opinion. However, he would submit that there is one institution known as Nutron Activation Analysis, BARC, Mumbai, where there is facility to find out the approximate range of the time during which the writings would have been made. It is a Central Government organisation. According to him, even such opinion cannot be exact. He would further submit that since it is a Central Government Organisation and confined only to atomic research, the documents relating to prosecutions and other litigations cannot be sent to that institution also for the purpose of opinion. He would further submit that if a document is sent for comparison, with the available scientific knowledge, opinion to the extent as to whether the same could have been made by an individual, by comparing his admitted handwritings or signatures, alone could be made. He would further submit that if there are writings with two different inks in the same document, that can alone be found out. But he would be sure enough to say that the age of the writings cannot be found out at all to offer any opinion. 8. In view of the above clear and unambiguous statement made by no less a person than the Head of the Department of Forensic Science, I am of the view that the whole exercise adopted in various Courts in this State to send the disputed documents for opinion to the Forensic Department in respect of the age of the writings and the documents is only futile. If any document is so sent, certainly the department will say that no opinion could be offered. As a matter of fact, the Assistant Director would inform https://hcservices.ecourts.gov.in/hcservices/ the Court that already many such documents, which were sent to them by various Courts in the State for such opinion, have been returned by them with the report that no such opinion could be offered. 9. In view of all the above, in my considered opinion, sending the documents for opinion in respect of the age of the writting on documents should not be resorted to hereafter by the Courts unless, in future, due to scientific advancements, new methods are invented to find out the age of the writings. 10. Now I have to consider the judgments relied on by the learned counsel on either side. In T.Nagappa's case reported in (2008) 5 Supreme Court Cases page 633, I have to state that the question whether the age of the writings could be scientifically examined and any opinion in this regard could be offered never came up for consideration before the Hon'ble Supreme Court. In that case, the Hon'ble Supreme Court was concerned with the right of the accused to have fair trial so as to send the document for comparison by an expert. It was never argued before the Hon'ble Supreme Court that there are no experts available to examine the age. Therefore, the Judgment of the Hon'ble Supreme Court relied on by the respondents is not in any manner helpful to them. The learned counsel for the petitioner has relied on the Judgment of this Court in S.Gopal's case wherein Hon'ble Mr.Justice M.Jeyapaul has held that there is no method to find out the age of the document with scientific accuracy. However, the learned counsel appearing for the respondents would submit that this Judgment was prior to the Judgment of the Hon'ble Supreme Court. He would therefore submit that subsequently in another Judgment reported in 2009 INDLAW MAD 1077 (V.P.Sankaran Vs. R.Uthirakumar), this Court has directed to forward the document for such opinion. In my considered opinion, a careful reading of the said Judgment would also go to show that there was no occasion for the learned Judge to answer the question as to whether there is any expert available in terms of Section 45 of the Evidence Act to offer any opinion regarding the age of the document. The entire case proceeded under the premise as though there are experts to offer opinion regarding the age of the documents. Now, as I have already stated, the Head of the Department of Forensic Science is before me and from whom I have the benefit of ascertaining that there is no expert in the field and also that all such documents sent already were returned without offering any opinion. Therefore, the said Judgment also would not come to the help of the respondents. https://hcservices.ecourts.gov.in/hcservices/ 11. In view of all the above, the revisions are allowed and the impugned orders of the learned Magistrate are set aside and the request for sending the documents for ascertaining the age of the writings is rejected. Connected miscellaneous petitions are closed. The services rendered by the Assistant Director is appreciated. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar jrl To 1.The Judicial Magistrate No.II,Erode. 2.The Chief Judicial Magistrate, Erode. 3.The Registrar General, High Court, Madras. 4.The Registrar (Judicial), High Court, Madras. 5.The Section Officer,"B" Section, High Court,Madras. 6.The Section Officer, "F" Section, High Court,Madras. (with a directed to place a copy of the Judgment before The Hon'ble The Chief Justice for his Lordship's decision as to whether it could be circulated to all the Courts throughout the State by the Registry) +2ccs to Mr.N.Manokaran, Advocate Sr 3908,3909 SA(CO) km/2.2. Crl.R.C.Nos.49 & 50 of 2009 https://hcservices.ecourts.gov.in/hcservices/