Dattakrupa Shikshan Sanstha Ltur ... vs Ramchandra Khando Kulkarni
2021 Latest Caselaw 11659 Bom

                                                                          932.WP.1768.21.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                             WRIT PETITION NO.1768 OF 2021

Shri Dattakrupa Shikshan Sanstha, Latur
through its Secretary
Shri Shripad Ganpatrao Patki,
Age : Major, Occu: Retired,
R/o. Engineer Colony, Ausa Road,
Near Sadanand School, Latur.                                  ...        Petitioner

         VERSUS

Shri Ramchandra Khando Kulkarni
Age : Major, Occu: Retired Professor
R/o. Dattanagar South, Ausa Road, Latur                       ...        Respondent

                                     ...
Advocate for Petitioner : Mr. Amarsinha D. Sonkawade
Advocate for Respondent : Mr. D.S. Mali
                                     ...

                                    CORAM   :   MANGESH S. PATIL, J.

                                    DATE    :   24.08.2021

ORAL JUDGMENT :

Heard. Rule. The Rule is returnable forthwith with the consent

of both the sides, the matter is heard finally at the stage of admission.

2. The petitioner is the reporting Trustee. He is aggrieved and

dissatisfied by the rejection of Application (Exhibit-166) by the learned

Assistant Charity Commissioner thereby refusing to send the documents to

the handwriting expert soliciting an opinion.

3. The learned advocate for the petitioner would submit that the

respondent by indulging in forgery has pretended to have enrolled few

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members, however, the applicantions do not bear the signatures of the

members and by indulging in such forgery he is opposing the change by

submitting that the change which has been effected by virtue of a meeting

was not legal since all the legal members were not notified and participated.

In order to substantiate such allegations of the petitioner a request was

made to refer the papers/records soliciting an opinion of the handwriting

expert.

4. The learned advocate would further submit that the impugned

order rejects the request merely on account of delay and further by

observing that a recourse under Section 73 of the Indian Evidence Act can

be had rather than soliciting an expert opinion. Such approach of the

learned Assistant Charity Commissioner is not legal. Whenever the

allegations regarding forgery are put up, it is appropriate to refer the matter

to the handwriting expert as has been laid down in the case of T. Nagappa

Vs. Y.R. Muralidhar; (2008) 5 SCC 633 and V.P. Sankaran Vs. R.

Uthirakumar; 2009 SCC OnLine Mad 745.

5. The learned advocate for the respondent would submit that

there is no error in the impugned order. The change report was filed way

back in the year 2011. Even the evidence in that matter was closed in the

year 2015 and the request was made after a long slumber. No plausible

explanation for considering to the request after lapse of such an enormous

time was given. The change report has been awaiting decision since long.

6. The learned advocate would further submit that the respondent

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had also solicited an opinion of the handwriting expert albeit a private one

and had solicited an order by filing Application (Exhibit-164) to permit it to

be proved by examining the handwriting expert. However, even his

Application (Exhibit 164) has been turned down by the learned Assistant

Charity Commissioner.

7. I have considered the rival submissions and perused the record.

As can be seen, the learned Assistant Charity Commissioner has primarily

rejected the Application on two counts, firstly, because of the delay in

making the request and filing of the Application after the evidence was

closed and, secondly, on the ground that instead of referring the matter to

an expert's opinion, a recourse can be had to Section 73 of the Indian

Evidence Act.

8. Obviously, the course to be adopted by taking aid of Section 73,

though it is an enabling provision, should be resorted to in exceptional

circumstances. It only enables the Court to compare the signatures. As

against this an opinion of the expert is based on some scientific basis and

would carry more weight. Therefore, the approach of the learned Assistant

Charity Commissioner that instead of soliciting an opinion of the

handwriting expert he can resort to Section 73 of the Indian Evidence Act is

not a correct.

9. However, it is a matter of record that the change report has

been filed in the year 2011. The evidence is closed in the year 2015 and no

plausible explanation can be found in the Application (Exhibit-166) as to

932.WP.1768.21.odt

why no such request was made at some earlier point of time. Therefore no

exception can be taken to the observation of the learned Assistant Charity

Commissioner that the Application was filed belatedly.

10. Apart from the above state affairs, a bare perusal of the

Application (Exhibit-166) shows that it is as vague as it could be. Though

several allegations have been levelled against the respondent, the

Application is conspicuously silent as to which exactly from out of the record

possessed by the respondent is to be referred for an expert opinion. It has

been vaguely mentioned that the proceeding, noticed book and concerned

Applications from 1995-2005 be referred to the handwriting expert. It is to

be borne in mind that if the record was already on the file specific and

precise foundation ought to have been made in the evidence to question a

specific document or documents. Simply saying that the entire record is

forged one would not suffice. Whenever an opinion is to be sought from a

handwriting expert, the documents which are in dispute i.e. the questioned

documents have to be specifically put to him. No such clear request is being

made in this Application (Exhibit-166). This in my opinion would be an

additional reason to justify the impugned order.

11. The decisions being relied upon by the learned advocate for the

petitioner in the case of T. Nagappa (supra) is in respect of a proceeding

coming under Section 138 of the Negotiable Instruments Act where the

dispute was as to who had actually filled in the contents of the cheque. The

request in such matter could be specific and would go to the root of the

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charge. The decision cannot be pressed into service in the matter in hand.

12. Considering all the aforementioned facts and circumstances,

there is no error or illegality in the impugned order.

13. The Writ Petition is dismissed. The Rule is discharged.

(MANGESH S. PATIL, J.)

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