THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL PETITION No.1751 of 2012 Between:
Sk. Badhar Bee PETITIONER AND
1. Palavai Srinivasa Haranadha Reddy S/o. Pitchi Reddy, R/o. Nandigama Village and Mandal, Krishna District, and another.
RESPONDENTS ORDER:
This Criminal Petition is filed to direct the Additional Judicial First Class Magistrate, Nandigama to send Exs.P.1 and P.2 in C.C.No.2133 of 2008 to Forensic Science Laboratory, Hyderabad, to ascertain the age of ink by setting aside the order dated 9.01.2012 in Crl.M.P.No.3203 of 2011 in C.C.No.2133 of 2008 and pass necessary orders.
2. Brief facts of the case leading to this criminal petition are that the petitioner is facing trial in C.C.No.2133 of 2008 for an offence under Section 138 of Negotiable Instruments Act. The petitioner herein filed Crl.M.P.No.3203 of 2011 in the said C.C. under Section 45 of the Indian Evidence Act with a request to send the original promissory note and cheque to Forensic Science Laboratory to identify the ages of respective writings to prove his defence that the cheque was not issued by her as pleaded by the complainant, but it was issued much earlier in respect of another transaction and that the same is pressed into service now. The learned Magistrate dismissed the application holding that the age of the ink cannot be determined on the basis of writings and the opinion of expert is not substantive evidence. Aggrieved by the dismissal of application, present criminal petition is filed.
3. Heard both sides.
4. Learned counsel for the petitioner submitted that it is for the expert to say whether such a technology is available to determine the age of the ink and without sending the documents to the expert it cannot be said that there is no technology to determine the age of the ink. He further submitted that the observation of the trial Court that expert opinion is not substantive evidence is not in dispute and the opinion of expert is only a corroborative piece of evidence to support the plea of the petitioner, which he has taken in defence.
5. On the other hand, learned counsel for the 1st respondent submitted that this petition is only to drag the matter and according to his knowledge there is no technology to determine the age of the ink. Therefore, the learned Magistrate was right in dismissing the application. Point No.1
6. I have perused the material filed along with the criminal petition. Learned counsel for the petitioner mainly relied upon the
[1]
decision of the Supreme Court in T. Nagappa v. Y.R. Muralidhar wherein the Hon’ble Supreme Court has dealt with the nature of the evidence that has to be let in by the accused and the right of the accused to defend oneself and let in evidence for that purpose. In that case also a similar point was involved with regard to determination of age of the writing. In those circumstances, the Hon’ble Supreme Court observed that the accused should not be allowed to unnecessarily protract the trial but he should be given fair opportunity to put forth his evidence on defence.
7. As rightly pointed out by the learned counsel for the petitioner whether the age of the ink can be determined or not is to be confirmed by the expert and if the documents are sent to the expert, and opinion has been expressed, then it is for the accused to prove his defence under the available remedies. By sending documents to expert no prejudice would be caused to the complainant. On the other hand, truth or otherwise of the contentions of both the parties can be determined judiciously. For these reasons I am of the view that the learned Magistrate ought to have permitted the petitioner to send the disputed documents to an expert for determining the age of the ink, which would be helpful in deciding the matter judiciously.
8. For the above reasons, the order of the learned Magistrate is set aside and the application in Crl.M.P.No.3203 of 2011 in C.C.No.2133 of 2008 is allowed. The trial Court shall take immediate steps to send the documents to the expert as requested and see that immediate response is received from the expert so that the trial of the case can be completed at an early date.
9. With above observations, the Criminal petition is allowed. As a sequel, Crl.M.Ps., if any shall stand closed.
JUSTICE S. RAVI KUMAR 23rd April, 2014 Js.
[1] 2008 (1) ALD (Crl.) 927 (SC)