TaxTMI 
TaxTMI 
2009 (8) TMI 1277
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....missed 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....
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....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 ....
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....missed 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 wi....
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....hat 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 jud....