Sri Maruthi Processors and Others vs R. Subramaniam and Others

B. Rajendran, J.—All the three Criminal Revision Cases have been filed by the petitioners/accused, aggrieved by the common order dated

7.6.2012 passed by the Court below, by which the petitions filed by the respondent/complainant u/s 45 of the Indian Evidence Act were allowed.

The petitioners are facing the criminal proceedings initiated at the instance of the respondent/complainant u/s 138 of The Negotiable Instruments

Act. S.T.C. No. 110 of 2012 was filed by R. Subramaniam, respondent in Crl. R.C. No. 654 of 2012 for dishonour of a cheque for a sum of Rs.

4,00,000/-. S.T.C. No. 94 of 2012 was filed by R. Karuppanasamy, respondent in Crl.R.C. No. 655 of 2012 for dishonour of a cheque for Rs.

4,00,000/-. S.T.C. No. 120 of 2012 was filed by K. Kumarasamy, respondent in Crl.R.C. No. 657 of 2012 for dishonour of the cheque for Rs.

2,00,000/-.

Pending the aforesaid S.T.C. Nos. 110, 94 and 120 of 2012 respectively, the respondent/complainant herein have filed Petitions u/s 45 of the

Indian Evidence Act in (i) Crl. M.P. No. 1811 of 2012 in S.T.C. No. 110 of 2012 (ii) Crl. M.P. No. 2057 of 2012 in S.T.C. No. 94 of 2012

and (iii) Crl. M.P. No. 1886 of 2012 in S.T.C. No. 120. The contentions urged on behalf of the petitioners is that during the course of cross-

examination, the accused have denied that they did not receive any money at all from the respondents/complainants by executing promissory notes

or any other instruments and therefore, in order to disprove such an averment in the cross-examination, it has become necessary to file the petition

praying to pass appropriate orders directing to take left hand thumb impressions of the accused in the open Court, send the promissory notes in the

above case and the thumb impression taken in the open Court to Government hand writing and fingerprint expert at Chennai for comparison and

call for a report. The petitioners/accused have also filed their counter before the Court below opposing the petition u/s 45 of the Indian Evidence

Act. The Court below, after hearing both sides and on perusal of the materials on record, accepted the contentions urged on behalf of the

respondents/complainants and allowed the petitions u/s 45 of the Indian Evidence Act as prayed for. Aggrieved by the same, the present Criminal

Revision Case are filed.

The learned counsel for the petitioners would contend that though the cheques in question were issued by the petitioners/accused and also

signed by them, the transaction was not supported by any consideration or the cheques were not issued for discharge of any legally enforceable

liability. Therefore, the petitioners/accused are no way liable or responsible to pay the cheque amount. According to the learned counsel for the

petitioners/accused, the petitioners, as accused in the proceedings initiated u/s 138of the Negotiable Instruments Act, are entitled to maintain

silence and it is for the respondents/complainants to prove their respective case by letting in oral and documentary evidence. While so, the

petitioners, who were arrayed as accused, cannot be compelled or forced to affix their thumb impressions in the open Court which would amount

to crippling the right of the accused in the criminal proceedings initiated against him. When the petitioners/accused have denied the execution of

promissory notes, they cannot be called upon to affix their thumb impression in the open Court which is in violation of the protection guaranteed to

an accused under Article 20(3) of The Constitution of India, wherein it is provided that no accused can be compelled to give evidence against his

own case. Therefore, the direction issued by the Court below, directing the petitioners/accused to affix the thumb impression in the open Court

amounts to denial of legal right vested with the petitioners/accused and it is liable to be interfered by this Court.

In support of this contention, the learned counsel for the petitioners relied on the decision Balasaheb @ Ramesh Laxman Deshmukh Vs. State of

Maharashtra and Another, to contend that protection under Article 20(3) of The Constitution of India does not extend to any kind of evidence but

only to self-incriminating statements relating to charges brought against an accused. Relying on the aforesaid decision, learned counsel for the

petitioners/accused would contend that any evidence, if it is compelled to be given by the accused, is illegal.

The learned counsel for the petitioners/accused further relied on the decision in Smt. Selvi and Others Vs. State of Karnataka, for the

proposition that right against self-incrimination is a vital safeguard against torture and other ''third-degree methods'' that could be used to elicit

information. The compulsory administration of such techniques violates the right against self-incrimination. Article 20(3) protects an individual''s

choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20

(3) aims to prevent the forcible conveyance of personal knowledge that is relevant to the facts in issue. The results obtained from each of the

impugned tests bear a ''testimonial'' character and they cannot be categorised as material evidence.

On the other hand, the learned counsel appearing for the respective respondents/complaints would contend that the petitioners/accused admits

the issuance of the cheques in question and also admitted the signatures thereon. The cheques were admittedly issued in pursuant to a money

transaction between the parties. The cheques were issued pursuant to the loan amount received by the petitioners/accused. On receipt of the loan

amount, the petitioners/accused not only signed the promissory note but also affixed the thumb impression thereon. The petitioners/accused have

issued the cheques in question to discharge their legally enforceable debt, however, during the course of cross-examination, the petitioners/accused

denied the execution of the promissory note. The cheques as well as the promissory notes were also marked as document in the proceedings

before the trial Court. Therefore, the burden is on the respondents/complainants to prove their case that the cheques were issued for a legally

enforceable debt and that the petitioners/accused have borrowed the amount after signing the promissory notes. Further, the cheques were issued

by the accused in the capacity of Partner of the accused company towards the debt incurred under the promissory notes and in discharge of a

legally enforceable debt. Under those circumstances, the respondents/complainants have filed the instant applications u/s 45 of the Indian Evidence

Act for appropriate direction to direct the second petitioner/accused to affix his thumb impression in the open Court and to send it for comparison

with the signatures of the petitioners/accused in the promissory notes for the opinion of the Government hand writing and finger print expert at

Chennai.

The learned counsel for the respondents/complainants further submitted that the petitioners/accused cannot have any grievance if they were

called upon to affix their thumb impressions in the open Court for comparision because, after comparision by an expert, if the signature or thumb

impression is not that of the petitioners/accused, the whole case projected by the respondents/complainants will go and therefore also, seeking

expert opinion will only enable the trial Court to come to a just and correct conclusion with respect to the proceedings pending before it. The

learned counsel for the respondents/complainants only plead that now there are advanced and latest scientific methods available and taking aid of

such advancement will only enable the trial Court to come to a just conclusion. In any event, inasmuch as the petitioners/accused have denied the

execution of the promissory notes, it has become necessary for the respondents/complainants to file the petition u/s 45 of the Indian Evidence Act.

Unless such a comparision is made, the respondent/complainant cannot prove their case and to disprove the averment of the petitioners/accused.

Under those circumstances, the Court below is right in allowing the application filed u/s 45 of the Indian Evidence Act and therefore interference of

this Court is not warranted.

In support of his contention, the learned counsel for the respondents/complainants relied on the decision in Rabindra Kumar Pal @ Dara Singh

Vs. Republic of India, to contend that when an accused is called upon by the Court or any other authority holding an investigation to give his finger

impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ''personal testimony''. In fact, the

Honourable Supreme Court held that an accused can make any kind of statement or may refuse to make any statement. But, his finger impressions

or his handwriting, inspite of effort at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of

finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is

not included within the expression ''to be a witness''.

I heard the counsel for both sides and given my anxious consideration to the rival contentions urged on behalf of both sides. The

respondents/complainants have initiated proceedings u/s 138 of the Negotiable Instruments Act against the petitioners/accused for dishonour of the

cheques issued by the petitioners/accused. According to the respondents/complainants, the accused have received the amount and executed a

promissory note in their favour. The promissory notes were not only signed but the thumb impression was also affixed. However, during the course

of trial, the petitioners/accused have denied the execution of the promissory note and therefore, the respondents/complainants have filed the

petitions u/s 45 of the Indian Evidence Act with a prayer to direct the petitioners/accused to affix the thumb impression in the open Court and to

direct the finger print experts to submit a report by comparing such thumb impressions affixed in the open Court with the admitted signatures.

According to the respondents/complainants, when once the admitted signature with the finger print impressions affixed in the open Court is

compared, it will put an end to the criminal proceedings. In catena of decisions, this Honourable Court as well as the Honourable Supreme Court,

by interpreting Section 73 of the Indian Evidence Act and Section 311A of Code of Criminal Procedure held that such comparison will not amount

to compelling the accused to give evidence against him. The Court below, after considering the evidence available on record, allowed the petitions

filed u/s 45 of the Indian Evidence Act, against which the present Criminal Revision Cases have been filed.

The main contention urged on behalf of the petitioners/accused is that the respondent/complainant have to prove their case by their own oral or

documentary evidence and the petitioners/accused cannot be compelled to give evidence against their own interest. Further, the petitioners, as

accused, are entitled to maintain silence in a criminal proceedings and therefore, compelling the petitioners/accused to affix their thumb impression

in the open Court is against the protection guaranteed under Article 20(3) of the Constitution of India. The Court below, by allowing the petitions

filed u/s 45 of the Indian Evidence Act has compelled and coerced the accused to give the thumb impression for comparing the same with the

disputed document.

In the counter filed before the Court below, the petitioners/accused denied the execution of the promissory note, but not denied the signatures

in the cheque. With this background, it has to be considered whether by allowing the applications u/s 45 of the Indian Evidence Act, the Court

below has compelled the accused to give any statement or evidence against his own case.

In this context, reference can usefully be made to Section 73 of the Indian Evidence Act as well as Section 311 of Cr.P.C. which reads as

follows:

Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing or seal is that of the

person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have

been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been

produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of

enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

Power to summon material witness, or examine person present: - Any Court may, at any stage of any inquiry, trial or other proceeding under

this Code, summon any person as a witness, or examine any person in attendance, though not summoned, as a witness or recall and re-examine

any person already examined and the Court shall summon and examine and recall and re-examine any such person if his evidence appears to it to

be essential to the just decision of the case.

311-A. Power of Magistrate to order person to give specimen signatures or handwriting - If a Magistrate of the first class is satisfied that, for the

purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen

signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall

attend at the time and place specified in such order and shall give his specimen signatures or handwriting;

Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or

proceeding.

A reading of Section 73 of the Indian Evidence Act would indicate that the Court may summon any person as a witness, or examine any

person in attendance as a witness or recall and re-examine any person already examined if his evidence appears to it to be essential to the just

decision of the case. Section 73 of the Indian Evidence Act also applies to comparison of the thumb impression with the admitted signature. In this

context, reference can usefully be made to the decision of the Honourable Supreme Court in The State (Delhi Administration) Vs. Pali Ram,

wherein the Honourable Supreme Court discussed as to the scope of the powers of Court u/s 73 of the Indian Evidence Act to direct an accused

person to give his specimen writings. In that case, the document, which was purported to have been written by the accused could not be compared

by a hand writing expert without any specimen signature because the accused was absconding and failed to give any specimen writing. It was

contended that the document is a very vital document to establish the case against the accused and therefore, in the interest of justice, the Court

should direct the accused Pali Ram to give his specimen writings, and forward the same along with the original documents. The learned Additional

Chief Judicial Magistrate, Delhi allowed the application against which the accused preferred a revision before the High Court of Delhi. The matter

was referred to a Division Bench and the Division Bench of the High Court, Delhi set aside the order passed by the learned Magistrate. As against

the same, the State has preferred the Criminal Appeal before the Honourable Supreme Court. The Honourable Supreme Court in para No. 10,

17, 24, 25, 32, 33 and 34 held as follows:

The question that falls to be determined in this case is:

Whether a Magistrate in the course of an enquiry or trial on being moved by the prosecution, is competent u/s 73, Evidence Act, to direct the

accused person to give his specimen handwriting so that the same may be sent along with the disputed writing to the Government Expert of

Questioned Documents for examination, ""with a view to have the necessary comparison""?

At the outset we may make it clear that the instant case is not one where the Magistrate had made the impugned order in the course of police

investigation. Here, the Magistrate had taken cognizance of these two companion cases. The evidence of most of the prosecution witnesses has

been recorded. The problem before us is, therefore, narrower than the one which was before the Patna, and Andhra Pradesh High Courts in the

aforesaid cases. All that we have to consider is, whether the High Court was right in holding that the order dated 20.5.1972, of the Magistrate

calling upon the accused before it, to give his specimen handwriting, was ""beyond the scope of Section 73, Evidence Act"".

A sample writing taken by the Court under the second paragraph of Section 73, is, in substance and reality, the same thing as ""admitted

writing"" within the purview of the first paragraph of Section 73, also. The first paragraph of the Section, as already seen, provides for comparison

of signature, writing, etc. purporting to have been written by a person with others admitted or proved to the satisfaction of the Court to have been

written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of the English Law on

the Subject, which is the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (Section 45) or

by one familiar with the handwriting of the person concerned (Section 47) or by the Court. The two paragraphs of the Section are not mutually

exclusive. They are complementary to each other.

Section 73 is therefore to be read as a whole, in the light of Section 45. Thus read, it is clear that a Court holding an inquiry under the Code of

Criminal Procedure in respect of an offence triable by itself or by the Court of Session, does not exceed its powers u/s 73 if, in the interests of

justice, it directs an accused person appearing before it, to give his sample writing to enabling the same to be compared by a handwriting expert

chosen or approved by the Court, irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting

this course, the purpose is to enable the Court before which he is ultimately put up for trial, to compare the disputed writing with his (accused''s)

admitted writing, and to reach its own conclusion with the assistance of the expert.

Since even where proof of handwriting which is in nature comparison, exists, a duty is cast on the Court to use its own eyes and mind to

compare, the admitted writing with the disputed one to verify and reach its own conclusion, it will not be wrong to say that when a Court seised of

a case, directs an accused person present before it to write down a sample writing, such direction in the ultimate analysis, ""is for the purpose of

enabling the Court to compare"" the writing so written with the writing alleged to have been written by such person, within the contemplation of

Section 73. That is to say, the words ''for the purpose of enabling the Court to compare'' do not exclude the use of such ""admitted"" or sample

writing for comparison with the alleged writing of the accused, by a handwriting expert cited as a witness by any of the parties. Even where no such

expert witness is cited or examined by either party, the Court may, if it thinks necessary for the ends of justice, on its own motion, call an expert

witness, allow him to compare the sample writing with the alleged writing and thus give his expert assistance to enable the Court to compare the

two writings and arrive at a proper conclusion.

For all the foregoing reasons, we are of opinion that in passing the orders dated 20.5.1972 relating to the disposal of the applications dated

11.12.1970, the learned Additional District Magistrate did not exceed his powers u/s 73, Evidence Act. The learned Judges of the High Court

were not right in holding that in directing the accused by his said Order dated 20.5.1972, the Magistrate acted beyond the scope of Section 73 or

in a manner which was not legal.

Accordingly, we allow this appeal, set aside the judgment of the High Court, and restore the order dated 20.5.1972, of the Magistrate who

may now repeat his direction to the accused to write down the sample writing. If the accused refuses to comply with the direction, it will be open

to the Court concerned to draw u/s 114, Evidence Act, such adverse presumption as may be appropriate in the circumstances. If the accused

complies with the direction, the Court will in accordance with its order dated 20.5.1972, send the writing so obtained, to a senior Government

Expert of Questioned Documents, named by it, for comparison with the disputed writing and then examine him as a Court witness.

From a reading of the above decision of the Honourable Supreme Court, it is very clear that u/s 73 of the Indian Evidence Act, the Courts

may, if it thinks necessary for meeting the ends of justice, either on its own motion or on the application seeking expert opinion, allow such

application for comparing the disputed signature with the admitted signature and such a procedure cannot be said to be against the protection

guaranteed to an accused under Article 20 (3) of The Constitution of India.

The aforesaid decision was followed by the Honourable Supreme Court in the subsequent decision in Ajit Savant Majagavi Vs. State of

Karnataka, wherein in para No. 37, it was held as follows:

This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc., allegedly written or

made by a person with signature or writing etc., admitted or proved to the satisfaction of the Court to have been written by the same person, the

second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or fingerprints for the

purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the

comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a

handwriting expert u/s 45 or by any one familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

In the decision relied on by the learned counsel for the respondent/complainant in Rabindra Kumar Pal @ Dara Singh v. Republic of India

(supra) the Honourable Supreme Court held in para No. 75 and 77 as follows:

Another question which we have to consider is whether the Police (CBI) had the power under the Cr.P.C. to take specimen signature and

writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his

specimen signature on the asking of the police and only in the amendment of the Cr.P.C. in 2005, power has been given to the Magistrate to direct

any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his

signature/writings being perse illegal, the report of the expert cannot be used as evidence against him.

77...... The main question which arises for determination in this appeal is whether a direction given by a Court to an accused person present in

Court to give his specimen writing and signature for the purpose of comparison under the provisions of Section 73 of the Indian Evidence Act

infringes the fundamental right enshrined in Article 20(3) of the Constitution of India.......

When an accused person is called upon by the Court or any other authority, holding an investigation to give his finger impression or signature or a

specimen of his handwriting, he is not giving any testimony of the nature of a ''personal testimony''. The giving of a ''personal testimony'' must

depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting,

inspite of effort at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of

specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the

expression ''to be a witness''.

..... Giving thumb impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included

in the expression ''to be a witness''.

In the above decision of the Honourable Supreme Court, the decision of the larger bench in The State of Bombay Vs. Kathi Kalu Oghad and

Others, was also relied on wherein the larger bench has clearly held that specimen or handwriting or signature or finger impression by themselves

will not constitute testimony at all. It was further held that a finger impression will never change and therefore, for the purpose of arriving at a just

conclusion, comparing the finger impression during the course of any investigation or proceeding cannot be said to be illegal. It was also held that

such evidence namely finger impression or signature is a third category of material evidence and it is outside the limits of testimony. Therefore, the

protection under Article 20(3) of the Constitution of India cannot be exercised in respect of a direction to the accused to affix his or her thumb

impression before the Court for the purpose of comparision.

Section 311 of Cr.P.C. provides for summoning material witness, or examine person present in the Court. Section 311 of Cr.P.C. was

amended and Section 311A was inserted by Act 25 of 2005 and it came into force with effect from 23.6.2006. The amendment was made to the

effect that if a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to

direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case

the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen

signatures or handwriting. Section 311A of Cr.P.C. was inserted in the Code of Criminal Procedure as per the judgment of the Honourable

Supreme Court in State of Uttar Pradesh Vs. Ram Babu Misra, . Therefore, in view of the statutory provision namely Section 311A of Cr.P.C. the

Court below is empowered to call upon the accused to give the thumb impression and it cannot be said to be in violation of Article 20(3) of the

Constitution of India. As far as the decision relied on by the counsel for the petitioners/accused in Smt. Selvi and Others v. State of Karnataka

(supra) it cannot be made applicable to the facts of the present case. In that case, the Honourable Supreme Court dealt with adoption of the

involuntary administration of certain scientific techniques namely nacro-analysis, polygraph-examination and Brain Electrical Activation Profile

(BEAP) in the course of investigation in the criminal cases. Even in that decision, the Honourable Supreme Court held in para No. 133 as follows:

133........ The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It

is as much necessary to protect an accused person against being compelled to incriminate himself, so as to arm the agents of the law and the law

Courts with legitimate powers to bring offenders to justice.

In the light of the above discussion and following the decisions of the Honourable Supreme Court mentioned supra, I am of the view that the order

passed by the Court below, directing the petitioners/accused to give thumb impression in the open Court for the purpose of comparison with the

admitted signature is in consonance with the decision of the Honourable Supreme Court and it cannot be said to be illegal. Therefore, the Criminal

Revision Cases are dismissed.