V MAKESAN Vs. T DHANALAKSHMI

JUDGEMENT

(1.) The Petitioner is the complainant in C.C. No. 550/2006 on the file of the learned Judicial Magistrate No. II, Pollachi and the Respondent is the accused. This case is instituted on a private complaint given by the Petitioner for an alleged offence said to have been committed by the Respondent punishable under Section 138 of the Negotiable Instruments Act. The Respondent has been defending the case mainly contending that the cheque was not issued by him as on the date mentioned in the cheque. In order to substantiate the said contention, the Respondent filed C.M.P. No. 3431/2007 before the learned Magistrate requesting him to send the said cheque for expert opinion for the purpose of ascertaining the age of the writings and the age of the ink used for the writing. The learned Magistrate dismissed the said petition. Challenging the same, the Respondent herein filed a revision before the learned Sessions Judge/Fast Track Court No. III, Coimbatore in Crl.R.C. No. 153/2007. By an order dated 5.3.2008, the learned Sessions Judge set aside the order of the learned Magistrate and directed to send the document for such opinion. Aggrieved over the same, the Petitioner is before this Court with this revision.

(2.) Though notice has been served on the Respondent and her name has been printed in the Cause List, the Respondent has not made appearance before this Court. It appears that the Respondent is not interested in prosecuting the matter. In view of the same, I proceed to decide the same on hearing the argument of the learned Senior Counsel appearing for the Petitioner and by perusing the records available.

(3.) The learned Senior Counsel would submit that there is no expert available in terms of Section 45 of the Indian Evidence Act, who would be in a position to offer any opinion in respect of the age of the ink. For this purpose, the learned Senior Counsel for the Petitioner relied on a judgment of the Honourable Supreme Court by a quorum of six Honourable Judges wherein in paragraph Nos. 8 and 9 of the judgment, the Honourable Apex Court has held that it is not at all possible.