DETERMINATION OF AGE OF INK AND HANDWRITING EXPERT

Compiled byAdv Mir Nagman Ali,

Bombay High Court, Nagpur Bench, Nagpur

9028401027

SOME IMPORTANT CITATIONS ON DETERMINATION OF AGE OF INK AND HANDWRITING EXPERT

(Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam 

2007(1) Bom.C.R.(Cri.) 1(S.C.) : 2006 DGLS (soft) 1087 : 2007 DGLS(Cri.) soft 6 : (2007)2 S.C.C. 258 : 2007 All.M.R.(Cri) 820(S.C.) 

12. Section 243(2) is clear that a Magistrate holding an inquiry under Code of Criminal Procedure in respect of an offence triable by him does not exceed his powers under section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. Fair trial includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be zealous in seeing that there is no breach of them. 

(T. Nagappa Vs. Y.R. Muralidhar)1, reported at 2008(2) Bom.C.R.(Cri.) 237(S.C.) : 2008 DGLS (soft) 523 : 2008 DGLS(Cri.) soft 434 : 2008 All.M.R.(Cri) 1945(S.C.) , wherein Hon. Apex Court has observed thus : 

 What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the Court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the Court for obtaining its assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefore, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protecting the trial or summon witnesses whose evidence would not be at all relevant. 

Brijratan Govinddas Mohta   Versus  Vidarbha Nagrik Pat Sanstha

2015 All.M.R.(Cri) 2372 : 2016 (1) Mh.L.J. 475 

Constitution of India, Art. 21 - Code of Criminal Procedure, 1973, Sec. 313 - Appeal against order - Wherein disputed cheque was not allowed to send for forensic laboratory for determination of age of ink of handwriting and also signature of petitioner - Held, accused-petitioner has already been given sufficient opportunity to defend himself and yet he never came up with any specific defence until his statement under section 313 of the Code of Criminal Procedure was recorded. In order to assert right of defence, it is well settled law, accused has to lay appropriate foundation while cross-examining witnesses of prosecution. But, no such foundation has been laid by petitioner. Petitioner, while cross-examining complainant, did not even suggest that disputed cheque was issued as a part of Hundi transaction. If he has not taken a specific stand in his defence, after completion of recording of his statement under section 313 of Code of Criminal Procedure, petitioner cannot be permitted to come up with a new story and be further allowed to send disputed cheque to an appropriate forensic laboratory for determination of age of ink of handwriting and signature appearing on disputed cheque. Defence being newly taken up at belated stage by petitioner is nothing but an attempt on his part to delay disposal of case without any sufficient cause and thereby encroach upon fundamental right of prosecution to fair trial of case. Petition is without any merit and is dismissed. (Paras 8 to 10)

Abhijeet Deshmukh vs Anwarkhan Pathan

2014 All.M.R.(Cri) 2525

 Negotiable Instruments Act, 1881, Sec. 138 - Code of Criminal Procedure, 1973, Sec. 482 - Dishonour of cheques - Belated request - Effect of - Hand writing experts necessity - Cheque said to have been written by accused in presence of complainant and this is denied by accused - Magistrate has rejected application for reference to expert on ground that even if handwriting on cheque was not that of accused, it would not absolve from liability - Contention that he could have made it at earlier stage when he had requested for sending it for as certaining age of cheque and that opportunity was given to him - Held, in given facts it is only an attempt to protract proceedings and application is liable to be rejected. 

 

Baburao Madhavrao Munnemanik  Vs.  Vishwajit Pratapsing Pardesh & Anr.

2011 All.M.R.(Cri) 2840 :

 

Negotiable Instruments Act, (1881) S.138 - Code of Criminal Procedure (1973) S.243 (2) - Cheque Dishonour - Complaint under S.138 of the Act - The so-called security provided by way of Cheque  - Complainant alleged abuse cheque by filling up place in cheque conveniently as per suit of his case - Cheque in question to an expert to determine the age of the ink used for signature and the age of the ink used to fill up the other data - Held to a fair trial this exercise is needed to complete.

2008 (5) SCC 633 and 2007 (2) SCC 258 - Rel.on ( Para 6)

 

MANSINGH PAWAR VS KAILASH CHAVHAN

2011 All.M.R.(Cri) 3638 : 2012 (4) Bom.C.R.(Cri.) 89 :

 

Negotiable Instruments Act, 1881, Sec. 138 - Dishonour of cheque - Petition against rejection order by trial Court - Determination of age of cheque - Application for determination of age of cheque by expert was rejected on ground technology is not available - Petitioner stated that technology is available with CBI, Delhi, he will furnish address - Held, bar under section 362 of Cri.P.C. is not attracted. Magistrate may pass fresh order on application to get document in question examined by expert, age of ink as early as possible. (Paras 3 & 4)

 

ANKUSH GHOGRE VS MAH 2016 All.M.R.(Cri) 2642

 

Code of Criminal Procedure, 1973, Sec. 313 - Negotiable Instruments Act, 1881, Sec. 138 - Dishonour of cheque - Ink of cheque - Verification of - Sought by accused on ground that cheque was given as a security for loans taken by one Shri. Bhagat - It was a blank cheque and age of ink would show it was different from ink of signatures - Petition against Magistrate rejecting this request - Magistrates view is that ink being different would be immaterial and is evident - Accused further states that Co-op. Bank as complainant has given no dues certificate to said Shri Arjun Bhagat and there is existing liability - Held, accused can raise this defence before Magistrate at trial. Presently there is no case for interference with order. Petition disposed of in above terms. (Paras 4, 5, 6, 7 & 8) 

However, it would be open for the accused to adduce evidence to that effect. After adducing the evidence, the accused should be permitted to apply afresh for sending the cheque to the handwriting expert and the expert for determination of the age of the ink, provided the relevancy of sending the cheque to such expert would be obvious in view of the stand and defence taken by the accused. 

ANIRUDDHA DEODHAR VS MEENA GUPTA 2013 All.M.R.(Cri) 1614 :

 Code of Criminal Procedure, 1973, Sec. 482 - Criminal application - Against Magistrate first accepting pursis of accused that age of ink on cheque in dispute be got verified from Laboratory at Nagpur, but when it was found that Nagpur Laboratory had no such facility, but only Hyderabad Laboratory had it, Court rejected plea to refer it to Hyderabad - Application against - Held, Court has merely whiled away time of about one year. Court second time also could have accepted pursis of accused and not insist on an application which was later rejected on ground. Case being old one application of mind, patience, consistency and time management are hall-marks of judiciary. Tendency to toss proceedings has to be depreciated. Hence, application allowed. Trial Court will dispose it of expeditiously and send cheque to Hyderabad Forensic Laboratory and thereafter proceed according to law. (Paras 2, 3 & 4)   

 

NANDKUMAR HARNE VS VISHWAS KSHIRSAGAR

2011 (5) AIR Bom R 747 : 2011 All IBLJ(Soft) 599 : 2011 All.M.R.(Cri) 3226 : 2012 (2) BC 620 : 2012 (2) Mh.L.J. 388

 

Code of Criminal Procedure, 1973, Sec. 482 - Negotiable Instruments Act, 1881, Sec. 138 - Evidence Act, 1872, Sec. 73 - Disputed document  - Need for reference to hand writing expert - Petition for quashing order of Sessions Judge confirming Magistrate's order - Contention that complainant is running illegal business of money lending and cheque in question was issued as security for loan of different amounts at different dates - That complainant has been entering receipts in his diary in his writing and issued chits for receipts - Complainant however, denied those writings and accused made application for verification of same by handwriting expert which Magistrate has rejected - Held, as documents chit and diary in handwriting of complainant are denied by him it is necessary to refer same to handwriting expert to substantiate claim of accused. Argument that in view of section 73 of Evidence Act, Magistrate not burdened to compare handwriting is not tenable. Section 73 of Act cannot be overlooked. Court should be slow to compare disputed document with admitted documents. It would therefore, be necessary to send these two documents to handwriting expert. (Paras 6, 11, 17, 19, 20, 21, 22 & 23)