IMPORTANT POINT
There is no mechanism to determine age of ink – Expert opinion to check age of ink cannot help to determine date of writing of document.

JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally by consent of learned counsel for the parties.

2. The petitioner-original complainant is aggrieved by order dated 21.06.2023 passed by the learned Sessions Court in Criminal Revision Application No.3/2023, whereby the order dated 13.12.2022 passed by learned Judicial Magistrate First Class, Yavatmal below Exh.-49 in Summary Criminal Case No.2400/2016, has been quashed and set aside. The learned Magistrate has rejected the application filed by the respondent-accused to appoint handwriting expert for ink age test of the disputed cheque. It has rejected the application, inter alia, by relying upon judgment passed by the Rajasthan High Court in the case of Manish Singh Vs. Jeetendra Meera, (Misc. Petition No. 3093/2018), in which the High Court referred to the judgment of the Hon’ble Supreme Court in the case of Union of India Vs. Jyoti Prakash Mitter, reported in AIR 1971 SC 1093, to hold that there is no mechanism to determine the age of the ink. The expert opinion to check age of the ink cannot help to determine the date of writing of the document because the ink used in the writing of the document may have been manufactured years earlier.

3. The Sessions Court, in the revision, has, though recognized and considered the aforesaid judgment, took exception to the order passed by the learned Magistrate on the ground that the accused has right to get satisfactory opportunity to defend his case. According to the Sessions Court, the doubtfulness of the accuracy of scientific test, which determines the ink, cannot prevent the accused from taking the chance of scientific test for determining age of the ink in writing by handwriting expert.

4. I have heard learned counsel appearing for both the sides at length. Mr. Joshi, learned counsel appearing for the respondent-accused, by taking aid of the judgment of the Hon’ble Supreme Court in the case of T. Nagappa .VS. Y. R. Muralidhar, reported in (2008) 6 S.C.R. 959 contends that the accused has a right to fair trial and has a right to defend himself and for that purpose to adduce evidence in terms of sub section (2) of Section 243 of the Criminal Procedure Code, 1973.

5. There cannot be any dispute on the aforesaid proposition of law but then where the exercise is found to be undertaken in futility, the Courts below will have to be vigilant in entertaining the applications which, even if allowed, has a sealed fate. The learned Single Judge of the High Court of Rajasthan in the case of Manish Singh (supra) has, after referring to the various judgments of the High Court as also of the Supreme Court, held that there is no scientific accurate test available for determination of age of the ink.

6. During the course of arguments, the counsel for the respondent submitted that the chemical test could be an answer to the issue as, according to him, by a chemical test, age of the ink may be ascertained with certain accuracy. A query was made as to whether there exists any scientific laboratory where this test could be conducted, the learned counsel submitted that this facility is available at BARC.

7. This submission has been put to rest by the learned counsel for the petitioner by inviting my attention to the judgment passed by learned Single Judge of Madras High Court in the case of Kanagaraj .Vs. Ramamoorthy, (C.R.P. (MD) No.601/2021 and C.M.P. (MD) No.3344/2021). The issue of the age of the ink arose in the said proceedings as well. The High Court referred judgment in the case of R. Jagadeesan Vs. N. Ayyaswamy, reported in 2010(1) CTC 424. The Court noted thus:—

“7. In order to ascertain the correctness of the said statement, this Court had requested the learned Additional Public Prosecutor Mr. N.R. Elango to request either the Director or the Assistant Director, Document Division, Forensic Science Department, Chennai to be present before this Court to explain the position. Accordingly, today, Mr. A.R. Mohan, Assistant Director, Do