Hitherto the legal position is that, age of the ink in a document can be ascertained and such facility is available at the Forensic Department(CFSL), Hyderabad. Even this blog reported the same (http://thevsklawfirm.blogspot.in/2011/04/age-of-ink-can-be-traced-by-expert.html).
But, as per the latest judgment delivered on 18.7.2012 by the Madurai Bench of Madras High Court, no such facility is available in the country at present.
The said judgment is given below. It is also available at http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=60539
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18/07/2012
CORAM
THE HONOURABLE MR. JUSTICE A.ARUMUGHASWAMY
Crl.R.C.(MD) No.265 of 2012
and
M.P.(MD) No.1 of 2012
K.Vairavan ... Petitioner
Vs.
Selvaraj ... Respondent
PRAYER
Petition filed under Section 397 R/W 401 of the Code of Criminal
Procedure Code against the order dated 06.06.2012 made in Crl.M.P.No.3397 of
2012 in S.T.C.No.672 of 2009 on the file of the Judicial Magistrate,
Periyakulam.
For petitioner ... Mr.S.Kadarkari
:ORDER
The Criminal Revision Petition has been filed by the petitioner/accused
against the order dated 06.06.2012 made in Crl.M.P.No.3397 of 2012 in
S.T.C.No.672 of 2009 on the file of the Judicial Magistrate, Periyakulam.
2. The facts of the case are that the petitioner is the accused and the
respondent is the complainant in the case. The respondent alleges that the
petitioner has committed an offence punishable under Section 138 of the
Negotiable Instruments Act. According to the petitioner, the cheque in question
was not signed and issued by him to the respondent. It is his further
contention that there was neither legally enforceable debt nor liability on the
part of the petitioner impelling him to issue the cheque in question.
3. During trial of the case, the petitioner made an application to the
learned Magistrate to forward the cheque in question for opinion from a
handwriting expert. Accordingly, the learned Magistrate forwarded the admitted
signatures of the petitioner along with the disputed cheque for the purpose of
comparison by an expert. On such comparison, the expert gave opinion that the
disputed signature on the cheque would have been made by the petitioner. The
said expert was examined as R.W.2 before the trial court. After the expert's
opinion, the petitioner again filed a petition in Crl.M.P.No.3397 of 2012
requesting the court to forward the same disputed cheque to an expert for the
purpose of finding out the age of the ink used for the writings. In fact, the
endeavour of the petitioner is to prove that the cheque would not have been
drawn as on the date mentioned thereon. That petition was dismissed by the
learned Magistrate by order dated 06.06.2012. Challenging the said order, the
petitioner has come up with this revision petition.
4. The vehement contention raised by the learned counsel for the
petitioner in this revision is that the opinion already given by the Forensic
Department that the signature found on the document would have been made by the
accused need not in any manner be helpful for the court to come to a right
conclusion.
5. According to the learned counsel for the petitioner the said opinion
is only to the effect that the disputed signature was made by the accused. There
is no opinion already given that the said signature and the writings on the
disputed cheque would have been made as on the date mentioned in the document.
Further, according to the learned counsel, unless, the document is subjected to
examination by an expert to find out the age of the ink and the writings, the
petitioner would not be in a possession to prove his case. Thus, as a part of
fair trial, according to the learned counsel, the cheque in question should be
sent for examination by an expert to offer his opinion regarding the age of the
ink and the writings. The learned counsel has relied on a few judgements of
this court.
6. Before proceeding further on facts, let us have a quick survey of the
judgements from this Court on this aspect.
7. In S.Gopal v. D.Palachandran , 2008 (1) MLJ (Crl) 769, a question arose
before this Court as to whether the age of the ink used for the writings on the
disputed document could be ascertained by an expert in the Directorate of
Forensic Sciences, Chennai. The learned single Judge [Justice M.Jeyapaul] after
having considered the said question held that there is no scientific expert
available in the State with the Directorate of Forensic Science to
scientifically test and find out the exact age of any such writing.
8. In the above said judgement, the learned Judge has taken note of the
fact that there is no expert available in the State of Tamil Nadu and,
therefore, the document cannot be sent anywhere in this State for the purpose of
scientific examination to find out the age of the ink used for the writings. The
learned Judge did not say that there is no method at all available for the
purpose of giving an expert opinion in respect of the age of the ink.
Subsequently, the very same question came up for consideration before yet
another Judge of this Court [Justice S.Palanivelu] in V.P.Sankaran v.
R.Uthirakumar, AIR 2009 Mad 166. In that case, the learned Judge held that the
document could be sent for examination by an expert in the Directorate of
Forensic Sciences, Chennai to offer his opinion about the age of the ink used to
draw the disputed documents. Thus, there were two conflicting judgements on the
same subject.
9. These two judgements came to be considered by yet another judgement
[Justice S.Nagamuthu] in R.Jagadeesan v. N.Ayyasamy, 2010 Cri.L.J.2917 : 2010
(1) CTC 424. In that case, after having considered the above two conflicting
views taken by two different learned Judges, the learned single Judge had
summoned the Assistant Director, Document Division, Forensic Science Department,
Government of Tamil Nadu, Chennai, to the Court. The said expert is the Head of
the Department of the Document Division of Forensic Science. The said expert
informed the court that there is no scientific method available anywhere in the
State, more particularly, in the Forensic Science Department to scientifically
ascertain the age of any writing and to offer opinion. The learned Judge has
further recorded that the said expert informed the Court that there is one
institution known as Neutron Activation Analysis, BARC, Mumbai, where there is
facility to find out the approximate range of the time during which the writings
would have been made. It is a Central Government Organisation confined only to
atomic research.
10. Having considered the above statement made by the Assistant Director,
the learned Judge again held that there is no expert in the State of Tamil Nadu.
Therefore, the learned Judge concurred with the view taken by Justice
M.Jeyapaul.
11. In the same judgement, the learned Judge has held in para 10 as
follows:-
"10. Now I have to consider the judgements relied on by the learned
counsel on either side. In T.Nagappa's case reported in (2008) 5 Supreme Court
Cases page 633, I have to state that the question whether the age of the
writings could be scientifically examined and any opinion in this regard could
be offered never came up for consideration before the Hon'ble Supreme Court. In
that case, the Hon'ble Supreme Court was concerned with the right of the accused
to have fair trial so as to send the document for comparison by an expert. It
was never argued before the Hon'ble Supreme Court that there are no experts
available to examine the age. Therefore, the Judgement of the Hon'ble Supreme
Court relied on by the respondents is not in any manner helpful to them. The
learned counsel for the petitioner has relied on the Judgement of this Court in
S.Gopal's case wherein Hon'ble Mr.Justice M.Jeyapaul has held that there is no
method to find out the age of the document with scientific accuracy. However,
the learned counsel appearing for the respondents would submit that this
Judgement was prior to the Judgement of the Hon'ble Supreme Court. He would
therefore submit that subsequently in another Judgement reported in 2009 INDLAW
MAD 1077 (V.P.Sankaran Vs. R.Uthirakumar), this Court has directed to forward
the document for such opinion. In my considered opinion, a careful reading of
the said Judgement would also go to show that there was no occasion for the
learned Judge to answer the question as to whether there is any expert available
in terms of Section 45 of the Evidence Act to offer any opinion regarding the
age of the document. The entire case proceeded under the premise as though there
are experts to offer opinion regarding the age of the documents. Now, as I have
already stated, the Head of the Department of Forensic Science is before me and
from whom I have the benefit of ascertaining that there is no expert in the
field and also that all such documents sent already were returned without
offering any opinion. Therefore, the said Judgement also would not come to the
help of the respondents."
12. After the said judgement, it appeared that the issue was almost
settled. Once again, the very same question was raised before the same learned
single Judge [Justice S.Nagamuthu] in V.Makesan v. T.Dhanalakshmi, 2010 (1)
Crimes 833: 2010 (1) LW (Crl) 879. The learned counsel, who appeared for the
petitioner therein, had relied on the judgement of the Hon'ble Supreme Court in
Union of India v. Jyoti Prakash, AIR 1971 SC 1093 wherein in paragraph 10 of the
judgement, the Hon'ble Supreme Court has held as follows:-
"10. After consultations between the Ministry of Home Affairs and the
Ministry of Law, the Home Ministry sent certain old writings of the year 1904,
1949, 1950 and 1959, and requested the Director to determine the age of the
writing of the disputed horoscope and marginal note in the almanac by
comparison. The Director on April 17, 1965 wrote that it 'was impossible to give
any definite opinion by such comparisons particularly when the comparison
writings were not made with the same ink on similar paper and not stored under
the same conditions as the documents under examination', and that it 'will not
be possible for a document expert, however reputed he might be, anywhere in the
world, to give any definite opinion on the probable date of the horoscope and
the ink writing in the margin of the almanac'."
The learned senior counsel for the petitioner therein had also cited Yash Pal v.
Kartar Singh, AIR 2003 P & H 344 wherein also similar view had been taken.
Having considered all the above judgements, while rejecting the plea for sending
the document for expert opinion, the learned Judge in paragraph 7 has held as
follows:-
"7. A perusal of all the above judgements would go to clearly indicate
that as of now, there is no expert in terms of Section 45 of the Indian Evidence
Act available who could be in a position to offer any opinion regarding the age
of the ink by adopting any scientific method. In view of all the above, I am
inclined to interfere with the order of the learned Sessions Judge, Fast Track
Court No.III, Coimbatore."
13. The very same question again cropped up for consideration before yet
another learned single Judge [V.Periya Karuppiah.J.,] in Indira Balasubramaniam
and others v. S.Subash (C.R.P.NPD No.3082 of 2008 dated 17.08.2009) wherein the
learned Judge in para 16 has held as follows:-
"16. In view of the judgement 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."
14. In Decon Construction v. J.A.Stephen and Krishnammal 2011 (3) RCR
(Civil) 481 : 211(2) RCR (Criminal) 628 yet another learned single Judge
[Justice S.Tamilvanan] while considering the said question took a view, on
facts, that seeking an order to send the cheque once again to find out the age
of the ink has no relevance to decide the issue. In that judgement also, the
learned Judge held that there is no expert in the State, who can offer an
opinion regarding the age of the ink.
15. Subsequently, the very same question came up for consideration before
yet another learned single Judge [Justice S.Palanivelu] in A.Sivagnana Pandian
v. M.Ravichandran, 2012 (1) RCR (Criminal) 471 : Manu/TN/4000/2010. Before the
learned Judge, earlier judgements, more particularly, the judgement in
R.Jagadeesan's case cited supra was also relied on. When it was argued before
the learned Judge, he was not convinced with the conclusion arrived at earlier
on the said question by yet another learned Judge of this Court. In that
judgement, the leaned Judge has referred to a number of authoritative books on
Forensic Sciences and finally held that there are scientific methods available
for the purpose of finding out the age of the ink found on the document.
However, I find that in the said judgement, the learned Judge has not specified
the expert to whom the document is to be sent for the purpose of offering
opinion regarding the age of the ink used on the document. In paragraph 32 of
the judgement the learned Judge has concluded as follows:-
"32. In view of the above said study and discussion, I am fortified in my
view that the disputed document has to be referred to the expert for
ascertaining the age of the ink and practical hardships, if any, sustained by
the expert shall be brought to the notice of the Court and the Court shall
thereafter act according to the settled principles and procedures, in affording
appropriate opportunity to the accused to prove his defence. Hence, interference
with the order challenged before this Court has become inevitable, which is set
aside. The revision deserves to be allowed."
16. After the said judgement, once again, a number of petitions were filed
before various courts across the State for sending the documents to Forensic
Science Department for opinion regarding the age of the ink used on the disputed
document.
17. The same question once again poked its nose before this Court in
A.Devaraj v. Rajammal, 2011 (1) LW (Crl) 297. In the said case, before the
learned Judge [Justice G.M.Akbar Ali], earlier judgement in R.Jagadeesan
authored by yet another learned Judge (Justice S.Nagamuthu) and the judgement in
C.R.P. (PD) NO.1475 of 2010 dated 02.11.2010 authored by yet another judge
(Justice R.S.Ramanathan) were cited. Having considered the above, the learned
Judge in paragraph 12 has held as follows:-
"12. In my considered opinion, the latest judgement of the learned Single
Judge of this Court in CRP (PD) NO.1475 of 2010 is not a contradictory judgment
to the earlier judgment of the learned Single judge in the case of R.Jagadeesan
v. N.Ayyasamy and another, reported in 2010 (1) CTC 424. Hon'ble R.S. Ramanathan
J. has differentiated the earlier judgment of Hon'ble S. Nagamuthu J, and has
ordered sending the document to be examined by the CFSL, Hyderabad as they claim
the facility is available."
Further in para 15 of the judgement, the learned judge has held as follows:-
"15. The revision petitioner is directed to submit his admitted signature
as stated above within a period of two weeks from the date of receipt of a copy
of this order before the lower court. The lower court is directed to send both
the documents to the Central Forensic Science Laboratory, Directorate of
Forensic Science as stated above. The lower court is directed to fix the
remuneration to the Advocate Commissioner and also for the expenses for
comparison. If the revision petitioner fails to produce the admitted signature
for comparison as stated above within the stipulated period, the revision
petitioner is not entitled to ask for sending the documents for comparison.
Consequently, the connected MPs are closed."
18. After the said judgement, this Court is informed that a number of
petitions were filed again in various court across the State for sending the
disputed documents to Central Forensic Sciences Laboratory, Directorate of
Forensic Sciences. According to the learned Judge though it may be true that
there is no expert in the State, the learned Judge was informed that there was
an expert in the Central Forensic Sciences Laboratory. It is because of this
though the learned Judge had concurred with the view taken in R.Jagadeesan's
case cited supra, had directed the document to be sent for examination in the
said Laboratory.
19. It is in these circumstances, the same question, almost vexed, has
again come up before me for consideration. The learned counsel for the
petitioner, as I have already stated, pointed out, has contended that the
document should be forwarded to the expert attached to the said Laboratory.
20. Very recently, the President of Central Forensic Science Laboratory,
Hyderabad, Andhra Pradesh State was invited to give a lecture in the Tamil Nadu
State Judicial Academy at Chennai on the subject "disputed document". During
the course of interaction, a question was posed to him - Is there any expert
available for offering opinion regarding the age of the ink used for writing the
disputed document? - In categorical terms, he informed that there is no such
expert available not only in his Laboratory but in any Laboratory throughout the
country at present and, therefore, it is not at all possible to offer any
opinion regarding the age of the ink used in the disputed document. When a
specific query was made during interaction to the President as to what had
happened to the documents already sent to his Laboratory seeking such opinion,
he said that the said documents were only returned without offering any opinion.
21. Now, in order to ascertain as to whether there is any expert really
available in the said laboratory since the request is to send the disputed
document to the said laboratory in Hyderabad, this Court through the Registrar
called for remarks from the said laboratory in Hyderabad. The Assistant Director
and Scientist 'C', Central Forensic Science Laboratory, Hyderabad, has given his
remarks through fax message to this Court vide Ref. CFSL(H)DOC/MISC/2012-13
wherein he has stated as follows:-
"This is to submit that as there is no validated method, this laboratory
does not undertake the examination for determining the relative/absolute age of
the ink of the writings/signatures."
From the above fax message from the Central Forensic Science Laboratory,
Hyderabad, it is crystal clear that there is no expert available in the said
Laboratory also to offer any opinion regarding the age of the ink.
22. Now, the learned counsel for the petitioner is not in a position to
point out that there is any such expert available in this Country. Therefore,
it is not at all possible to forward the document in question anywhere for the
purpose of getting opinion regarding the age of the ink used for writing the
disputed document.
23. In this regard, I would like to state that the opinion of an expert is
relevant in any proceedings as per Section 45 of the Indian Evidence Act, 1872.
Section 45 of the Indian Evidence Act reads thus:-
"45. Opinion of experts.- When the Court has to form an opinion upon a
point of foreign law or of science or art, or as identity of handwriting or
finger impressions, the opinions upon that point of persons specially skilled in
such foreign law, science or art or in questions as to identity of handwriting
or finger impressions are relevant facts.
Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison. The
opinions of experts as to the symptoms produced by the poison by which A is
supposed to have died are relevant.
(b) The question is, whether A, at the time of doing a certain act, was,
by reason of unsoundness of mind, incapable of knowing the nature of the Act, or
that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited
by A commonly show unsoundness of mind, and whether such unsoundness of mind
usually renders persons incapable of knowing the nature of the acts which they
do, or of knowing that what they do is either wrong or contrary to law, are
relevant.
(c) The question is whether A wrote a certain document. Another document
is produced which is proved or admitted to have been written by A. The opinions
of experts on the question whether the two documents were written by the same
person or by different persons are relevant. "
24. A reading of the above provision would make it crystal clear that an
expert is the one who has got special skill in science or art or in questions as
to identity of handwriting or finger impressions. Here the identity of
handwritings and finger impressions would denote an expert who can compare the
disputed handwriting or finger impression with the admitted handwriting or
finger impression. Such experts are available and, therefore, the documents are
sent to those experts for opinion. But, there is no such expert available in
India to offer any opinion regarding the age of the ink used for writing the
disputed document so as to satisfy the requirements of Section 45 of the
Evidence Act.
25. In this regard, we may come back to the judgement of Justice
S.Nagamuthu in R.Jagadeesan's case cited supra, wherein it is not the view taken
by the learned Judge that there is no scientific method available for
ascertaining the age of the ink used for writing the disputed document. The
learned Judge has only held that there is no expert available, who can
scientifically examine the same. Even now, the learned Judge had ascertained
from the Forensic Science Department, Government of Tamil Nadu, Chennai, that
there is no expert , who can offer such opinion. Now, the Assistant Director,
Central Forensic Laboratory, Hyderabad has also stated that there is no such
expert available anywhere in India. Thus, it is crystal clear that, as of now,
there is no expert available in India. In A.Sivagnana Pandian's case cited
supra, Justice S.Palanivelu has stated that in Forensic Science it is possible
to ascertain the age of the ink. Regarding such conclusion arrived at by the
learned Judge, I have no different opinion. Science has developed so much and
that it is possible. As per the leading books referred to by the learned Judge,
there is a scientific method available. But, knowing a method alone would not
serve the purpose to implement the method. Equipment's are necessary and person
with the expertise knowledge is also necessary. If only there is a person who
has special skill in the field who is armed with sufficient equipment's, then
only he can use the known scientific method to offer his opinion. But, in
respect of age of the ink though there are scientific method available in India,
there is neither such scientific expert available nor equipment available. It is
because of these reasons, I have to necessarily hold that for getting an opinion
regarding the age of the ink, the disputed document cannot be sent anywhere as
of now. I would make it clear that in future, if any expert emerges and
equipment's are also made available, then, after identifying him, the court may
forward the disputed documents to him for opinion. Until such time, the document
cannot be sent anywhere for the purpose of getting opinion regarding the age of
the ink used for writing the disputed document.
26. Now coming back to the facts of the present case, the defence of the
petitioner/accused is that the signature in the disputed cheque was not made by
him. But, already, R.W.2 an expert has offered opinion that it would have been
made only by him. It is only as an after thought that he has filed the present
petition for forwarding the document to ascertain the age of the ink. This in my
considered opinion is only a devise to unnecessarily drag on the proceedings.
Thus, the criminal revision petition fails and the same is liable to be
dismissed.
27. In the result, the criminal revision petition is accordingly
dismissed. Consequently, the connected Miscellaneous Petition is also closed.
ssl/gr
To
The Judicial Magistrate, Periyakulam.
