Common Order:

An important question as to whether the Courts can order to send documents for Forensic opinion regarding the age of the writings and signatures on disputed documents has arisen for consideration in these revisions.

2. The respondents in these two revisions, who are the accused facing prosecution for an offence under Section 138 of the Negotiable Instruments Act, filed petitions before the learned Judicial Magistrate seeking to forward the cheques in question for examination by the Director of Forensic Science, Chennai to express opinion regarding the age of the writings as well as the signatures found on the cheques. The learned Magistrate concerned allowed both the petitions. Aggrieved over the same, the petitioner, who is the complainant in those cases, is before this Court with these revisions.

3. It is contended by the learned counsel for the petitioner that the lower Court has allowed the petitions without having regard to the fact that there is no scientific method available in this State with the Director of Forensic Science to scientifically test and find out the exact age of any writings or signatures. He would rely on a Judgment of this Court reported in (2008) 1 MLJ (Crl) page 769 (S.Gopal Vs. D.Balachandran) wherein, a learned Judge (Mr.Justice M.Jeyapaul) has taken a view that the age of the ink cannot be determined by an expert with scientific accuracy. He also relies on a Judgment of High Court of Punjab and Haryana reported in AIR 2003 PUNJAB AND HARYANA page 344 (Yash Pal Vs. Kartar Singh), wherein also similar view has been taken.

4. Per contra, the learned counsel appearing for the respondents would submit that sending the documents for comparison by an expert is part of fair trial to be afforded to an accused under Article 21 of the Constitution of India. He would rely on a Judgment of the Hon'ble Supreme Court in T.Nagappa Vs. Y.R.Muralidhar reported in (2008) 5 Supreme Court Cases page 633, wherein, according to the learned counsel, in a similar situation, the Hon'ble Supreme Court has directed to send the documents for comparison by an expert in respect of the age of the writings. He would further submit that subsequently, when a similar question arose, a learned Single Judge of this Court (Justice S.Palanivelu) after having considered the view expressed in S.Gopal's case cited supra and the Judgment of the Hon'ble Supreme Court in T.Nagappa's case, has held in V.P.Sankaran Vs. R.Uthirakumar reported in 2009 INDLAW MAD 1077 that documents can be subjected to such scientific test by an expert in this regard. Therefore, according to the learned counsel, the lower Court was right in directing the documents to be forwarded for comparison by an expert for opinion.

5. I have considered the rival submissions.

6. There can be no denial of the fact that the accused needs to be afforded a fair trial to exhaust all his defences available to him. Fair trial is the sine qua non of criminal jurisprudence and the same has been recognised as a fundamental right under Article 21 of the Constitution of India. To prove that the handwriting was not made by him or that the signature was not made by him, the accused can very well request the Court to forward the document for expert opinion. But the question is, in respect of the age of the writings on a document whether there is any expert in terms of Section 45 of the Evidence Act, who shall be competent to examine the same scientifically and to offer his opinion. The term expert denotes, persons specially skilled in the particular field. Under Section 45 of the Evidence Act, it is for the Court to first of all take a decision as to whether a particular individual is an expert in the particular field for a particular purpose. In such a way, if it is found that there is an expert who can find out the age of the writings on a document by means of any scientific method, certainly he would fall within the ambit of Section 45 of the Evidence Act to offer