TaxTMI 
TaxTMI 
2010 (12) TMI 1341
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....ue to him. At the time of delivering the cheque, the Petitioner's signature alone was there and other particulars were not filled up. So in order to institute a false case, the contents were filled in the cheque afterwards. Hence, the age of the ink utilised for signature by the Petitioner has to be ascertained by the forensic expert. Then only, the factual back ground would come to light and hence the cheque may be referred to forensic science expert. 3. In the counter filed by the Respondent it is stated that the claim of the Petitioner to find out the age of the ink in the signature is not covered by Section 45 of the Evidence Act. It is meant only for comparison of the hand writings and signatures. The relief under the request of the accused is not required for the Court to decide the matter in issue. Without any ambiguity the Petitioner admitted his signature in the cheque. Hence the claim for ascertaining the age is meaningless. The Petitioner is the competent person to say about his signatures and hence the expert opinion is not essential. The Petitioner has protracted the case for 7 years. The petition is filed purely with dishonesty, evil intention and with speculat....
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....ion 20 has a rider, namely, no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid therein. In the present case, in the petition it has been specifically mentioned that the Petitioner had intention to get a loan of Rs. 1,00,000/-alone and as such a blank cheque with signature was handed over to the Respondent which was filled up for Rs. 9,00,000/-. Though a presumption could be drawn under the Act, it is a rebuttable presumption and as per the mandate in the above said decision, the accused has to be accorded ample opportunity to rebut the same. 9. In the above noted decision, earlier decision of the Supreme Court in (2007) 2 SCC 258 : (2007) 1 SCC (Cri) 577 [Kalyani Baskar v.M.S. Sampoornam] has been referred to, which passage is as follows: The issue now almost stands concluded by a decision of this Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258 (in which one of us, L.S. Panta, J., was a member) wherein it was held: "12. Section 243(2) is clear that a Magistrate holding an inquiry under Code of Criminal Procedure in respect o....
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.... Jhansi Lakshmi Bai v. J. Venkateswara Rao] wherein the learned Judge has held that the opinion of the hand writing expert is not totally irrelevant factor for adjudication of the dispute and his opinion can be sought for determining the age of disputed handwriting. In this decision, a judgment of the Honourable Supreme Court in AIR 1964 SC 529 [Shashi Kumar Banerjee v. Subodh Kumar Banerjee] has been referred. The relevant portion of the Apex Court judgment is as follows: (23). Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on "Questioned Documents" at page 464 says even with respect to chemical tests that "the chemical tests to determine the age also, as a rule are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based. In these circumstances, the mere....
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....od. He also admitted that he did not apply any chemical test in that case. So, the Supreme Court reached a conclusion in the above said circumstances that mere opinion of the expert cannot over ride the positive evidence of attesting witnesses in a case like this where there are no suspicious circumstances. It is to be noticed here that in the said case, the handwriting expert did not say that no test was available to ascertain the age of the ink. He has categorically, indubitably and positively stated that the dispute as to the age of the ink could be definitely resolved by a chemical test. This position prevailed even earlier to 1964. As observed by the Honourable Supreme Court, the opinion of the expert has to be subjected to scrutiny of the Court and that mere opinion of the expert cannot override the positive evidence of attesting witnesses. When positive evidence emerge from the materials in a case, then the opinion of expert cannot prevail. 13. On a later occasion, this Court in a judgment in 2010 (1) CTC 424 [R. Jagadeesan v. N. Ayyasamy and Anr.], has opined that sending the documents for opinion in respect of the age of the writing on documents should not be resorted t....
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....h opinion could be offered. 14. Earlier decisions of this Court show that there had been directions for ascertaining the age of the ink and they have been performed by the experts. Following is a classical instance as seen from a judgment of this Court in 2004 STPL (LE-Crim) 24910 MAD [Amaravathi Chits Investments v. T.M. Vaidyanathan]. The observations in the said judgment are as follows: 6. ...In this regard, learned Counsel also submitted that the accused filed Criminal M.P. No. 2077 of 1995 to send the cheque Ex.A.1 (Cheque No. 991836) to the Forensic Department for obtaining the expert's opinion and the Scientific Assistant D.W.1. also, in support of the case of the accused, has stated in the report Ex.D.3 that the person, who has written S34, has not written S1 and that in the date of cheque, the number '1' has been inserted with different ink and Q1 and Q2 have been written in ink whereas Q3 to Q5, signature and writing, are all done by using ball point pen." "7. ...The hand writing expert D.W.1 has filed report Ex.D.3 and also stated in his evidence that in the cheque Ex.P.1, the writings Q1 and Q2 were made by usin....
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.... the available experiments in practice as done by the other Countries and other States in this country, particularly on the prior occurrences, when age of the ink was ascertained by the Forensic Sciences Department in this State. When the accused is legally entitled to rebut the presumption contained in the provisions of the Negotiable Instruments Act, there is no other option for the Court except to provide opportunity to him to rebut the same so as to make certain the fair trial, as held by the Apex Court, when analytical, meticulous and regulated means are available. 18. The phraseology, "fair trial" has been defined in P. Ramanatha Iyer's "Advanced Law Lexicon" 2005 edition [page 1766] as under: A trial which is fair and proper in contemplation of law, viz, that which the law secures to the party (St. Paul, etc. R. Co., v. Cardner, 18 Am Rep 334)" " 'Fair trial' means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried, is eliminated." "The failure to hear material witness is certainly denial of 'fair trial' Zahira Habibulla H. She....
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.... (6) Are the additions, alternations, substitutions and cancellations with the same ink? (7) Can the obliterated writings be made legible? To determine whether two documents were written with the same type of ink, various physical and chemical methods are available. Thinlayer chromatography is particularly suitable for ink comparisons. In the dye inks, the separation pattern of the competent dyes is distinctly different for inks having different dye compositions, and thus provides many points of comparison between a known and a questioned ink. (1) Comparative Table of Robertson and Hofmann - For the examination of inks for legal purposes and especially to determine their nature and the difference between them, Robertson and Hofmann, the chemists, have prepared a very useful comparative table. This table will not only facilitate the task of the professional chemist but will enable the Investigating Officer in country districts to undertake, in urgent cases, the chemical examination of a document suspected by the medical jurisprudent or pharmacist. But we repeat....
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.... tests are: (1) Chlorine Water (2) Bromine Water (3) Stannous chloride Solution (4) Potassium Permanganate Solution (5) Sodium Hydroxide Solution (3) Magnifiers: The magnifiers and stereomicroscope are the two accessories, which are invaluable in examination of disputed documents. (4) Filters: Different colours filters are used for detecting distinguish ink shades and evaluation of faded writings. Obscured writings obtained by obliteration or by highly coloured surfaces are also detected by help of different colours filters. A computer with good quality scanner has also colour filtering system, which will gives better result than filters of different colours. (5) Invisible rays: X-rays, ultraviolet rays....
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....d ink categories: (i) Iron Tannate inks: Iron gallotannate ink is a mixture of tannic acid and gallic acid extracted from wood and when mixed with ferrous salts, gives a colourless liquid, which on drying gives black colour. It is, therefore, mixed with suitable dye to give colour to the ink. The common blue-black ink used in fountain pens belongs to this class. (ii) Dyestuff inks: Now-a-days, the most popular ink is dyestuff inks. It is manufactured from number of dyes. The most particularly used dye is nigrosine dye. It is available in many colours and shades. It is not permanent ink as it was washable and fades with passage of time. However, the fading of ink depends upon the individual dye of which it is manufactured. 20.(d) The above said authority amply amplifies that even though the assignment of ascertaining the age of the ink is tough task, yet, proved experiments are available for rendering resolution on the issue. 21. In the book Forensic Science in Criminal Investigation and Trials by B.R. Sharma [1999 edition], inter alia, the following suggestions have been made to bring about such experiments in page No. 402:  ....
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.... Aged Ink: As an ink ages, the dyestuffs therein slowly decompose, until nothing but a crust of ferric oxide remains. At this stage, the chromatogram of anything which can be extracted from the ink line will bear little resemblance to that derived from the original ink. It might appear, therefore, that the age of an ink writing might be determined from the appearance of the chromatogram, but experiments have shown that, as long as the ink has not decomposed, the chromatogram is not appreciably affected. 23. New procedure for experiments have been discussed in the authority "Scientific Examination of Questioned Documents" (second edition 2006) edited by Jan Seaman Kelly and Brian S. Lindblom, of suspected documents and disputed documents in pages 153 and 154, which read thus: A microscopic spot test - the reaction of a minute drop of chemical reagent on a portion of the ink stroke viewed under the microscope - helps to determine that the document was written with a particular class of fluid ink, e.g., iron base, synthetic dye, carbon ink, or pigment. When properly performed, these tests make only a microscopic chang....
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....ith reference to the names of chemicals and reagents to be utilised, to solve the issue and it is incumbent upon the experts to put the authoritative theories and the latest proved and established technologies to empirical use. They have to take the inventiveness drawing the proven and accepted principles from well settled authorities and the Government have to provide necessary latest infrastructures in the Document Division of the Forensic Sciences Laboratory and also allot necessary funds for the constitution of sophisticated laboratory which is a full-fledged one in this regard. 26. The scientist can elect non-destructive technique where there is no scope of destruction of disputed document. When the authorities effectively suggest various methods for subjecting a document for this purpose, it is high time for the scientists of this State and the Government committed them in use in practice. When the science has flourished to show enormous, remarkable, striking and much advanced improvements in all other fields, while sufficient ways and means are available in this sphere, they cannot be disregarded and thrown overboard. The State shall take every possible step to provide th....