HON'BLE SRI JUSTICE K. LAKSHMAN
CIVIL REVISION PETITION No.2471 OF 2023
ORAL ORDER:
Heard Mr. Tarun Ram Aitham, learned counsel for the
petitioner and Mr. K. Sai Sri Harsha, learned counsel for the
respondent.
2. This revision is filed under Article - 227 of the Constitution of India challenging the order dated 19.06.2023 in I.A. No.1 of 2022 in O.S. No.132 of 2014 passed by learned Additional Senior Civil Judge, Khammam.
3. Respondent - Plaintiff filed the aforesaid suit against the petitioner - defendant for recovery of money basing on promissory note dated 13.11.2011. During pendency of the said suit, when it is posted for further evidence on behalf of the defendant, the petitioner herein - defendant filed I.A. No.1 of 2022 under Section - 45 of the Indian Evidence Act, 1872, to send the original promissory note dated 13.11.2011 for hand-writing expert by comparing the disputed signature on the promissory note with the admitted signature of the defendant on his Vakalat and written statement filed in the aforesaid suit and also with his signatures to be obtained in Open Court for 2 KL, J CRP No.2471 of 2023 giving his opinion as to its genuineness for proper adjudication of the matter by contending that the signature on the suit promissory note does not belong to him and the same was forged one
4. Despite granting sufficient time, the respondent herein - plaintiff did not choose to file counter.
5. The trial Court vide order dated 19.06.2023 dismissed the said petition on the following grounds:
i) The petition was filed at belated stage;
ii) The suit is of the year 2014;
iii) Though the petitioner - defendant contended that the alleged promissory note was created and fabricated one, did not state that his signature was forged and filed the above suit for wrongful gain;
iv) The issues were framed in the year 2020 and the petitioner kept quiet all these years and did not take any steps to send Ex.A1 to hand writing expert for comparison with his admitted signatures;
v) The petitioner did not explain the reasons for the delay caused in not sending Ex.A1 to hand-writing expert. 3
KL, J CRP No.2471 of 2023
6. Mr. Tarun Ram Aitham, learned counsel for the petitioner herein - defendant would contend that right from the beginning the petitioner disputed the signatures on the suit promissory note. In fact, in the written statement filed by him, it is specifically mentioned that the respondent - plaintiff in collusion with the alleged witnesses and scribe created, fabricated and brought into existence the alleged promissory note in order to blackmail and extract the money from the petitioner, and thereby the defendant laid foundation for sending the alleged promissory for expert's opinion. If the alleged promissory note is sent for expert's opinion, no prejudice would be caused to the respondent herein and on the other hand, it would be helpful for the trial Court to adjudicate the matter in issue properly. He would further submit that without considering the said aspects, the trial Court dismissed the said petition. Therefore, the impugned order is illegal.
7. On the other hand, Mr. K. Sai Sri Harsha, learned counsel for the respondent, would submit that the suit is of the year 2014 and the petitioner having kept quiet all these years filed the above petition without assigning any reasons for the delay caused. The trial Court 4 KL, J CRP No.2471 of 2023 having considered the same and also other aspects has rightly dismissed the petition filed by the petitioner. There is no error in it.
8. In view of the aforesaid rival submissions and perusal of record would reveal that the respondent - plaintiff filed the aforesaid suit for recovery of Rs.6,20,800/- basing on the promissory note dated 13.11.2011 against the petitioner - defendant. In the said suit, the petitioner - defendant filed his written statement in the month of July, 2014 disputing the claim of the plaintiff including execution of promissory note. In paragraph No.6 of the written statement, the defendant stated as under:
"6. That the alleged promissory note is out and out created and fabricated one and brought into existence by plaintiff, in collusion with the alleged witnesses and scribe of pronote, in order to black mail and extract money from the defendant. Therefore the plaintiff cannot enforce the said forged promissory note. There was no consideration received under alleged promissory note from the plaintiff to this defendant."
9. In view of the above pleadings in the written statement, it is clear that the defendant has denied the execution of the suit 5 KL, J CRP No.2471 of 2023 promissory note and also pleaded that the same was forged one. Thus, the defendant laid foundation for filing an application to send the suit promissory note for expert's opinion to compare the signatures with the admitted signatures contained in Vakalat, Written Statement and also to be obtained in Open Court, so as to arrive at a just conclusion as to genuineness of the suit promissory. There is no dispute that the trial Court has power to compare the signatures of the party. At the same time, the object of Section - 45 of the Evidence Act i.e., expert opinion has to be considered by the trial Court.
10. It is relevant to extract Sections - 45 and 73 of the Evidence Act and the same is as under:
"45. Opinions of experts.--When the Court has to form an opinion upon a point of foreign law or of science, or art, or as to identity of handwriting 2 [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 3 [or in questions as to identity of handwriting] 2 [or finger impressions] are relevant facts. Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison.
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KL, J CRP No.2471 of 2023 The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant."
"73. 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.
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KL, J CRP No.2471 of 2023 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.
This section applies also, with any necessary modifications, to finger-impressions."
11. Section 45 of the Act, 1872, inter alia, provides that the Court can call for evidence of experts to form an opinion regarding the genuineness of signatures and handwriting which are relied on by one party and disputed by another party. It is also relevant to note that the power to seek expert opinion under Section 45 of the Act, 1872 is discretionary and depends on facts of each case. The Courts under Section 73 of the Act, 1872 can themselves compare the signatures or handwriting. However, the Supreme Court has time and again cautioned that Courts cannot act as experts in all the cases. Unless it is glaringly clear that the signatures are same or are different, the Courts should normally call for an opinion from the experts.
12. In State (Delhi Admn.) v. Pali Ram 1, the Hon'ble Supreme Court held that prudence requires that a judge shall obtain 1 . (1979) 2 SCC 158 8 KL, J CRP No.2471 of 2023 expert opinion in the matters of comparison of handwriting. The relevant paragraph is extracted below:
"30. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet- anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert."
13. In Ajit Savant Majagvai v. State of Karnataka 2, the Apex Court held that where there is even slightest of doubt in the minds of the judge while comparing the admitted and disputed signatures, such signatures shall be sent for expert opinion under 2 . (1997) 7 SCC 110 9 KL, J CRP No.2471 of 2023 Section 45 of the Act, 1872. The relevant paragraphs are extracted below:
"37. 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 under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.
38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the 10 KL, J CRP No.2471 of 2023 Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. [See: State (Delhi Admn.) v. Pali Ram [(1979) 2 SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14]."
14. In Thiruvengadam Pillai v. Navaneethammal 3, the Apex Court observed that it is risky to arrive at a conclusion regarding signatures and handwriting without an expert opinion. The relevant paragraph is extracted below:
"16. While there is no doubt that Court can compare the disputed handwriting/ signature/ finger impression with the admitted handwriting/signature/finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two 3 . (2008) 4 SCC 530 11 KL, J CRP No.2471 of 2023 thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear and where the Court is in a position to identify the characteristics of fingerprints, the Court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the Court should not hazard a guess by a casual perusal."
15. In Ajay Kumar Parmar v. State of Rajasthan 4, the Apex Court held that, the Courts while dealing with handwriting or signatures cannot itself act as an Expert. The relevant paragraph is extracted below:
"28. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the Court from comparing signatures or handwriting, by 4 . (2012) 12 SCC 406 12 KL, J CRP No.2471 of 2023 using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the Court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the Court may also not be conclusive. Therefore, when the Court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the Court must keep in mind the risk involved, as the opinion formed by the Court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The Court, therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion whether of an expert, or of any witness, the Court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision."
16. Therefore, by perusing the dicta in the above decisions it can be said that the Courts shall normally seek expert opinion when they are posed with a situation where they have to compare admitted 13 KL, J CRP No.2471 of 2023 and disputed signatures. The Courts can refuse expert opinion only when no doubt exists regarding the genuineness of the signatures after comparison of the admitted and disputed signatures. In cases where even a slightest doubt exists, the Courts shall send the admitted and disputed signatures for expert opinion under Section 45 of the Act, 1872.
17. In the light of the aforesaid discussion, coming to the facts of the present case, as discussed above, the petitioner herein - defendant laid foundation by contending in the written statement that the suit promissory note was forged one. The petitioner cross- examined PW.1 (Plaintiff) on 11.04.2022, tried to elicit truth, but he could not. Therefore, on the very same day itself, he has filed the aforesaid application. There is no delay. Even if there is delay in filing the application, the object and purport of Section - 45 of the Evidence Act is to be considered by the trial Court and this Court. When there is specific denial by the petitioner - defendant that his signature was forged, it is not safe for the trial Court to come to a conclusion that the defendant did not explain the reasons properly for the delay caused in filing the aforesaid application. The said finding is contrary to the object and purport of Section - 45 of the Evidence 14 KL, J CRP No.2471 of 2023 Act and record. The said principle was also reiterated by this Court in Katike Bheem Shankar v. Mrs. T. Laxmi @ Punyavathi 5. As rightly contended by learned counsel for the petitioner that no prejudice would be caused to the respondent - plaintiff in obtaining expert opinion by sending Ex.A1 - promissory note dated 13.11.2011.
18. In the light of the aforesaid discussion, the impugned order dated 19.06.2023 in I.A. No.1 of 2022 in O.S. No.132 of 2014 passed by learned Additional Senior Civil Judge, Khammam, is set aside, and I.A. No.1 of 2022 is accordingly allowed. The trial Court shall send Ex.A1 - promissory note dated 13.11.2011 to the hand-writing expert to compare the signatures of the defendant on Ex.A1 - promissory note with the admitted signatures of defendant available on the vakalat, written statement and to be obtained in Open Court for giving opinion as to its genuineness for proper adjudication of the matter.
19. The suit is of the year 2014 and it is posted for further evidence on behalf of the defendant. In the light of the same, the trial Court shall make an endeavour to dispose of the suit strictly in accordance with law as expeditiously as possible, preferably within a 5 . C.R.P. No.1939 of 2022, decided on 20.12.2022 15 KL, J CRP No.2471 of 2023 period of three (03) months from the date of receipt of copy of this order.
20. The present Civil Revision Petition is accordingly allowed. In the circumstances of the case, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the revision shall stand closed.
_________________ K. LAKSHMAN, J 26th September, 2023 Mgr