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2011 Supreme(Mad) 3387

High Court of Judicature at Madras
K.B.K. VASUKI, J.
N. Mani
Versus
State by Deputy Superintendent of Police CBCID
Crl.R.C.No.530 of 2005 & 532 of 2005
Decided on : 26-07-2011

Advocates appeared:
For the Petitioner:Ms. A. Madhumathi, Advocate.
For the Respondent: A.D. Jagadish Chandra, APP.

Headnote:A. INDIAN EVIDENCE ACT, 1872 - SECTION 73 - Identification - Main allegations raised against A1 are that A1 opened new account in fictitious name of A.Rajan in MCC bank and altered the payee name and cheque number and then presented the cheque in the said account and encashed the same. As already stated, the trial court found the accused guilty mainly on the basis of two factors : (i) identification of the accused as that of the person who opened new account in fictitious name and withdrew the money and (ii) handwriting expert opinion about the similarity of the admitted signature of A1 Mani with disputed signatures - Held, Thus, the observations of the Supreme Court and our High court in the above judgments would undoubtedly go to show that it is only the courts, who are empowered under section 73 of the Indian Evidence Act to direct collection of specimen signatures, writings and seal from any accused for the purpose of comparison to establish the offence, when the accused appeared before the court in connection with any proceeding pending before the same. Whereas, Section 5 of the Identification of Prisoners Act empowers the court to pass similar direction to allow measurements or photograph to be taken from the accused in the course of any investigation or proceedings before the same and specimen signature, hand writing and seal are consciously excluded from Section 5 of Identification of Prisoners Act. The only provision of law empowers the police officer to take measurement of the accused in the course of investigation is under section 4 of the Act and the measurement does not include specimen signature and writing. As the specimen signature and writing herein is collected and sent for expert opinion In the course of investigation by the police officer without any order obtained from the competent court and not during pendency of any proceedings before the same and not when the accused appeared for any proceeding before the Court, the same is without any authority and is not in accordance with the procedure laid down under the Act, as such, no evidentiary value can be attached to the hand writing expert opinion in respect of such specimen signatures and writings - In the absence of such corroborating evidence, the learned counsel for the petitioner/ accused seriously argued that it is not safe to rely upon without other reliable independent evidence, the uncorroborated evidence of handwriting expert to base an order of conviction - Being the factual and legal position regarding the science of Identification of handwriting, no serious reliance can be attached to Ex.P13 expert opinion. Thus, this Court, for the discussion held above, is of the view that both the grounds on which the trial court as well as the lower appellate court found the accused guilty, have no legal basis and contrary to well settled legal position and are legally and factually unsustainable and the finding is hence totally perverse and legally vitiated and the same deserves interference by this Court - Criminal Revision is allowed.

       B. IDENTIFICATION OF PRISONER ACT, 1920 - SECTIONS 4 & 5 - The investigation officer has no authonty to collect the specimen signature and to send it to handwriting expert in the course of his investigation without any order of the court and such course adopted by the Investigation Officer is not in accordance with any procedure and is irregular and unlawful and any report obtained in respect of such signature cannot be attached any evidentiary value that too, to base any order of conviction. This court finds much legal force in the argument so advanced on the side of the accused - Section 73 of the Indian Evidence Act and Sections 4 and 5 of the Identification of Prisoners Act.

       Result : Criminal Revision allowed.

Judgment :-

1. The first accused is the petitioner herein. The revision is filed against his conviction and sentence for the offences under Sections 381, 419, 467, 468, 471 r/w 468 and 420 IPC passed by the trial court and confirmed by the appellate court.

2. The accused along with three others was charged for the offences referred to above as if the accused, who was during the relevant point of time, employed as driver in Kilpauk Medical College and Hospital, along with three others by names Ganesan, who was employee of State Bank of India, Treasury Branch, Chennai, Ramachandran and Rajendran, conspired together to commit an act of forgery and cheating and in continuation of such conspiracy, Ganesan stolen the cheque in question and handed it over to Rajendran, from whom the accused received and fabricated it by altering the payee name and the cheque number and presented it in the bank as genuine one and encashed it through new account opened in MCC bank in fictitious name A.Rajan and misappropriated the sum of Rs.16,930/-thereby committed the acts constituting the offences as referred to above.

3. The criminal prosecution initiated against the four accused is subsequently split up in respect of Ramachandran and Rajendran and the case is proceeded against A1-Mani and A2-Ganesan in CC.No.7872 of 1996.

4. The prosecution has, in order to prove the guilt of the accused examined the staff attached to both banks, State Bank of India, Treasury branch and MCC, who are associated with the preparation of the cheque and issuance of cheque and the payee/official to whose account the cheque is issued, bank officials, who are responsible to open new account and to maintain accounts in the bank, to receive and to process cheque in question and to give credit to the cheque amount in the current account and to pay it to individuals and higher officials of both banks, State Bank of India and MCC, where the account is opened in fictitious name and cheque is encashed and amount is collected and the complainant and the investigation officer as PW1 to PW18 and produced the cheque in question, covering letter along with the cheque sent to the actual payee, counterfoil of the cheque, remittence, acknowledgment, application form given in the name of A.Rajan for opening new account, remittance challan for deposit of amount for opening new account, challan for crediting the amount into account, withdrawal slip for withdrawing money, admitted and disputed specimen signatures and hand writings obtained from the accused by the Investigation Officer for comparison and expert report along with reasoning, complaint and FIR as Exs.P1 to P15. No oral and documentary evidence is adduced on the side of the accused.

5. The trial court on the basis of the oral evidence of the witnesses and their identification of the accused A1 in the identification parade and by mainly relying upon Ex.P13 and Ex.P14 handwriting expert opinion along with his reasoning, found A1-Mani guilty of the offences and acquitted A2 Ganesan. Aggrieved against the same, A1 preferred CA.No.265 of 2004 and the appellate court accepted the findings and reasonings of the trial court and confirmed its findings and judgment of conviction and sentence of the trial court. Hence, this criminal revision by A1 before this court.

6. Heard the rival submissions made on both sides.

7. The main allegations raised against A1 are that A1 opened new account in fictitious name of A.Rajan in MCC bank and altered the payee name and cheque number and then presented the cheque in the said account and encashed the same. As already stated, the trial court found the accused guilty mainly on the basis of two factors: (i) identification of the accused as that of the person who opened new account in fictitious name and withdrew the money and (ii) handwriting expert opinion about the similarity of the admitted signature of A1 Mani with disputed signatures.

8. It is not in dispute that A1-Mani was during the relevan












































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