This Revision has been filed by the petitioner against the order passed by the lower Court in I.A.No.115 of 2008 in A.S.No.18 of 2008 dated 5.09.2008.
2.The respondent herein, as plaintiff, had filed the suit in O.S.No.443 of 2002 before the trial Court against the petitioners herein/defendants for recovery of money. The said suit was dismissed by the trial Court. Against which the respondent/plaintiff has preferred an appeal in A.S.No.18 of 2008 before the first appellate Court. Pending the appeal, the petitioners herein/defendants filed an application in I.A.No.115 of 2008 seeking for appointment of an Advocate Commissioner to send the disputed cheques to the Forensic Science Expert for examination. The first appellate Court has, after considering the submissions of both sides, dismissed the said application, which necessitated the petitioners to prefer this Revision.
3.The averments in the application filed by the revision petitioners/ defendants are as follows:- The respondent/plaintiff, who has lost his case before the trial Court, has come forward with this vexatious appeal. The respondent filed the suit on the basis of three cheques each of value Rs.50,000/- dated 07.01.2002, 17.01.2002 and 23.1.2002 respectively. The cheques were presented by the plaintiff after a very long time by fabricating it. The signature of the drawer of the cheque is in one ink and the writings and the date of those cheques are in different ink. If those cheques are sent to the Expert, morefully described in the petition, it will come to light that those cheques were not drawn by the drawer of the cheque. Therefore, an Advocate Commissioner may be appointed to take the cheques to the Expert for opinion, that the said cheques morefully detailed in the application are not written by the same person and in different ink at vast intervals of time. Therefore, the petitioners pray for appointment of an Advocate Commissioner to take the cheques mentioned in the petition to the Expert for his opinion.
4.The respondent/plaintiff filed a counter contending as follows:- It is deliberately false to allege that the cheques were presented by the plaintiff after a very long time by fabricating it. It is also false to allege that the signature of the drawer of the cheque is one ink and the writings and the date of those cheques are in different ink. It is well settled law that if the signature is admitted the presumption is that the cheques are supported by consideration. Further, the blank cheques filed by other persons also valid in law. Therefore, there is no necessity to send the cheques for expert opinion. The petition is not maintainable in the appellate stage and only to drag on the proceedings the petitioners have come forward with this vexatious petition. Hence, the defendant submit that the petition is liable to be dismissed.
5.The lower Court had considered the case of both the parties and had come to the conclusion of dismissing the petition filed by the petitioners, who sought for sending the disputed documents namely three cheques to the Forensic Science Expert to find out the age of the ink used to fill up the cheques and also age of the ink used for the signature.
6.The learned counsel for the petitioners would submit in his argument that the lower Court had not considered the rights of the petitioners to disprove the genuineness of the cheques said to have been issued by the husband of the first petitioner viz., Balasubramaniam for the alleged transaction mentioned in the plaint. He would further submit that the petitioners being the defendants are to discharge the burden of proving that the contents of the cheques were not filled up by the signatory and the age of the ink used for such filling up is very recent one, while the age of the ink used for signatures were very old and thereby to substantiate the case of the defendants. He would also submit that the opinion of the Forensic Science Expert, on the cheques sent for examination of the age of the inks, would certainly disclose that the signatures put in the cheques are much earlier, to the year 2002 the alleged year of issuance of impugned cheques and that would solve that the alleged borrowal of Rs.1,50,000/- by the deceased Balasubramaniam in the year 2002 could not have been true. He would also submit that there cannot be any prejudice caused to the respondent herein in sending those documents for being subjected to the Forensic Science Expert's examination regarding the age of the inks, because that would be helpful to the Court to come to correct conclusion. He would again submit that if the signatures of those three cheques were found laid with different ink, it could be considered as older than the ink used for filling up the impugned cheques and that would draw the material alteration of the cheques and therefore, it is important that those cheques should have been ordered to be sent for Expert's examination and opinion. For that, he would draw the attention of this Court to the judgment of Honourable Apex Court made in the case between T.Nagappa Vs. Y.R.Muralidhar reported in 2008 (2) SCC (Crl) 677 for the proposition that an opportunity must be granted to the person for adducing evidence in rebuttal.
7.He would further submit that the petitioners are the defendants in the suit and respondents in the appeal, and in the event of the appellant Court accepts the case of the appellant/plaintiff that the cheques were validly signed by the deceased -Balasubramaniam after filling up of the details in the said three cheques, it would be necessary for the petitioners to show that those signatures were put by the said Balasubramaiam in the year 1997 when there was a partnership firm existed in between the said Balasubramaniam and the wife of the respondent. He would further submit that in accordance with the above said judgment, there must be a fair trial and the defendants must be given an opportunity to defend the case and for that purpose the request of the petitioners seeking for sending the disputed cheques to the Forensic Science Expert's opinion to know about the age of the both the inks used for filling up and putting the signatures respectively, in the impugned cheques.
8.The learned counsel for the petitioners would also cite a judgment of this Court reported in 2007 CCDC 343 in between P.R.Ramakrishnan Vs. P.Govindarajan for the principle that the request for sending the cheques for examination by the Expert to ascertain the signature, under
Section 45 of the Evidence Act, should have been granted.
9.He would also refer to a judgment of Andhra Pradesh High Court reported 2004(1) Crimes 567 in between Avon Organics Ltd., Vs. Poineer Products Limited & Ors for the principle that filling up of a blank cheque issued by the signatory, in respect of the amount and date would amount to material alteration. On that strength the learned counsel for the petitioners would argue that if the age of the ink used for filling up the amount both in words and numerical and the date are found to have been lesser in age to that of the ink used for putting up the signature, those filling up of the cheques in respect of the amount and the date would be amounting to material alteration. Therefore, he would insist in his argument that the lower Court ought to have ordered those cheques sent for examination by a Forensic Science Expert and his opinion be obtained regarding the age of the ink, through a Commissioner to be appointed, but the lower Court had not considered the said situation, but, under a wrong notion that the cheques would come under
Section 20 of the Negotiable Instrument Act, the lower Court dismissed the application. Therefore, the order passed by the lower Court should have been interfered with and the revision may be allowed.
10.Per contra, the learned counsel for the respondent/plaintiff would submit in his argument that the trial Court had come to a wrong conclusion and had dismissed the suit filed by the respondent herein/plaintiff and against which the respondent/plaintiff had preferred the appeal before the first appellate Court and during the pendency of the appeal, the defendants, who are the respondents in the appeal, filed the application seeking for sending the three cheques executed by the said Balasubramaniam for Expert's opinion as to the age of the ink, which is not possible scientifically to decide the present case. He would further submit in his argument that the petitioners did not apply for sending those documents to the Expert's opinion before the trial Court but, they have strangely applied before the first appellate Court seeking for such opinion, which is clearly amounting to fill up the lacuna of their case. He would further submit that the claim of the petitioners will not be sustainable in view of the judgment of this Court reported in 2008 (1) CTC 491 in between S.Gopal (Vs.) D.Balachandran to the principle that the age of the ink cannot be determined by an Expert with scientific accuracy and the use of old ink manufactured long ago in a subsequent period will definitely create a dent in the opinion of the Expert, which will result in further confusion. Therefore, he would request the Court that the revision petition filed by the petitioners may not be allowed since the order passed by the lower Court is correct though it did not discuss about the position of law which was enumerated in 2008(1) CTC 491.
11.In have given anxious consideration to the arguments advanced on either side. From the submissions made by both sides, I could see that the petitioners are the defendants before the trial Court, against whom a suit was filed by the respondent/plaintiff for recovery of money to the tune of Rs.1,50,000/- on the foot of three cheques issued by the husband of the first petitioner viz., Balasubramaniam in lieu of the borrowal of money for Rs.1,50,000/- from the plaintiff on 7.1.2002, 17.01.2002 and 23.1.2002. The trial Court had, after a full-fledged trial, dismissed the suit and the respondent/plaintiff had preferred an appeal before the first appellate Court. During the pendency of the said appeal the petitioners/respondents had filed an application seeking for sending all the three cheques to the Expert's opinion to find out as to the age of the ink used both in filling up the cheques and the signatures found therein. The lower appellate Court had dismissed the claim of the petitioners. It is not disputed that the petitioners who were the defendants before the trial Court, have to discharge their burden of proof in the event, the respondent/plaintiff proves the genuineness of the cheques as pleaded by him in the plaint. The trial Court had found that the plaintiff did not prove the case as pleaded by him. However, it is now under the first appellate Court's disposal as the respondent had preferred an appeal against the judgment and decree of the trial Court. The judgment of this Court as well as the Honourable Apex Court as cited on the side of the petitioners would no doubt laydown the settled principle that the person who is to lead rebuttal evidence must be given with fair opportunity by the Courts during the time of trial. There is no dispute that the petitioners did not ask for the appointment of Commissioner for taking those documents to the experts for getting his opinion. It has been held in the judgment of our Honourable Apex Court reported in 2008(2) SCC (Crl) 677 between T.Nagappa Vs. Y.R.Muralidhar, as follows:-
"When a contention has been raised that the complainant hs misused the cheque, even in a case where a presumption can be raised under
Section 118(a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it.
An accused has a right to fair trial. He has a right to defend himself as a prt of his human as also fundamental right as enshrined under
Article 21 of the Constitution of India."
12.The reliance was placed by the learned counsel for the petitioners on the judgment of this Court reported in 2007 CCDC 343 in between P.R.Ramakrishnan Vs. P.Govindarajan, which would go to show that:-
"the appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable."
In the said judgment of this Court it has been dealt with under the Code of Criminal Procedure regarding the right of an accused and it has been sought to be equated with the defendants in a civil suit. It cannot be in a dispute whenever the signatures are questioned, the defendants have the right to send those documents for Expert's opinion after comparing the disputed signature with that of the admitted signature of the person of a contemporaneous period. This is not a case for seeking the signature for comparison and this is a case for determination of the age of the ink in order to find out the truth and genuineness of the cheques issued by the said Balasubraminam.
14.The case of the petitioners/defendants would be that the disputed cheques were signed by the deceased Balasubramaniam in the year 1997 for ABC Textiles as partner and they were kept blank in the partnership concern, in which the plaintiff's wife was also one of the partners and she got possession of those blank cheques and they were utilized in the year 2002, as if, the deceased Balasubramaniam had borrowed a sum of Rs.1,50,000/- from the plaintiff and had deposited those cheques on 7.1.2002, 17.1.2002 and 23.1.2002 respectively to the respondent/plaintiff. The additional type-set produced by the petitioners would go to show the disputed cheques are found in pages 1, 2 and 3. The contention of the petitioners would be that in the said cheques it has been referred to as 'for ABC Textiles' and the cheque leaves were meant for the years 1990s and therefore, they were printed in the cheques for the use of filling up the years of 1990s along with 19.. as printed in the cheques. These contentions are left open to be decided by the appellate Court and they are not helpful to decide the question of sending those cheques for examination by expert and to give his opinion.
13.The Judgment of the Andhra Pradesh High Court reported in 2004(1) Crimes 567 in between Avon Organics Ltd., Vs. Poineer Products Limited & Ors regarding the filling up of amount portion and date attracts material change and it could not be enforced even though it was used for legal liability. All these circumstances are also to be considered by the first appellate Court before whom the appeal is pending and it is to be considered by the said Court only. Apart from that, the oral evidence regarding the issuance of the cheques are also available as produced before the trial Court.
16.In view of the judgment of this Court discussed earlier there would not be any purpose in sending the impugned cheques for examination to ascertain its age of the ink used for filling up its particulars and signatures put up therein. Therefore, the request of the petitioners to send the cheques through an Advocate Commissioner for Expert's opinion as to the age of the ink cannot be ordered since it does not result in any scientific accuracy. The lower Court had not discussed these points but correctly rejected the claim of the petitioners. Therefore, this Court is not inclined to interfere with the findings of the lower Court and accordingly, the Revision fails and the same is dismissed.
ssv To, The Principal District Judge, Salem.