R SUBBURAMAN Vs. JOTHI NIRAIMATHI

JUDGEMENT

(1.) THE criminal revision petition is filed against the order dated 04.05.2007 made in C.C. No. 127 of 2005 thereby dismissing the application filed by the petition/accused under Section 73 of the Indian Evidence Act to refer the disputed cheque to the forensic expert to give opinion about the age of the disputed writing in the cheque.

(2.) THE defence raised by the petitioner/accused in the proceedings initiated for the offence under Section 138 of the Negotiable instruments Act is that the cheque with his signature and date is issued under different circumstances and not under the circumstance as averred in the complaint and in the event of the document being sent to expert to get an opinion about the age of the disputed contents of the cheque and his signature and date admitted by him, the same would disprove the theory as putforth by the respondent/complaint. THE trial Court dismissed the petition on the ground that the petitioner having admitted his signature in the cheque is estopped from raising such plea and the plea is taken only to protect the proceedings. THE correctness of such order is challenged in this revision.

(3.) IT is true that the Supreme Court in the judgment cited on the side of the petitioner is pleased to observe that the presumptions that shall be raised in favour of the complaint under Negotiable instruments Act is rebuttable presumption and the accused is entitled to rebut the same by relying on the materials available and if the cheque in question would furnish good materials to rebut the case of the complaint, the accused should be given ample opportunity to do so and if such an opportunity is denied to the accused, it amounts to denial of fair trial. In the said case the signature in the cheque was denied and accused sought for to send the document for expert opinion and when such opportunity was denied to the accused the Supreme Court is pleased to observe as referred to above. Whereas in the present case, the signature is admitted and the opinion sought for is only with regard to the age of the writing both disputed and admitted in the cheque in question. In that event, this court is of the opinion that the judgments cited on the side of the respondent particularly the latest judgment of our High Court reported in 2010(1) CTC 424 R. Jagadeesan V. N. Ayyasamy and another; (2010) 2 MLJ (Crl) 762 V. Makesan V. T. Dhanalakshmi are more applicable.