Calcutta High Court (Appellete Side)
Paul & Ors vs Smt. Kanchalata Pal (Deceased) ... on 11 October, 2023
11-10-2023
ct no. 13
sl. no. 42
sp
S.A. No. 42 of 2023
With
CAN 4 of 2023
Surya Narayan Pal (deceased) represented by Ashoka Kumar
Paul & Ors.
-Versus-
Smt. Kanchalata Pal (deceased) represented by Santanu Pal
& Ors.
Mr. Aniruddha Chatterjee,
Mr. Kushal Chatterjee,
Ms. Oishik Chatterjee,
Mr. Noorul Islam
...for the appellants
CAN 4 of 2023
1.
CAN 4 of 2023 has been filed seeking
condonation of delay.
2. Sufficient grounds have been made out in the
instant application explaining such delay.
Hence, the delay is condoned.
3. Accordingly, CAN 4 of 2023 is allowed and
disposed of.
S.A. No. 42 of 2023
4. The second appeal has been filed against the
judgment and decree dated April 22, 2014
passed in Title Appeal No. 165 of 2001 by the
learned Additional District Judge, Hooghly.
5. By the impugned judgment, the lower
Appellate Court has confirmed the judgment
and decree dated May 24, 2001 passed by the
learned Civil Judge (Senior Division), 2nd
Court at Srerampore in Title Suit No. 77 of
2001.
6. Mr. Aniruddha Chatterjee, learned counsel
for the appellants assisted by Mr. Kushal
Chatterjee has vehemently argued that the
concurrent findings of the two Courts below
in accepting the report of one handwriting
expert, namely, Mr. H.C. Ganguly as opposed
to the opinion of the second handwriting
expert Mr. S.P. Sarkar, are perverse.
7. The learned counsel for the appellants has
placed reliance upon paragraph 19.1 of the
decision of the Supreme Court in the case of
Safi Mohammed Vs. State of Rajasthan
reported in (2013) 8 SCC 601.
8. It is argued firstly that the opinion of S.P.
Sarkar rejected by the two Courts below
contains the theory and methodology to be
adopted by a handwriting expert while
rendering his opinion on the genuineness of a
signature on a document. In the instant case,
the document is a sale deed dated October 9,
1953 relied upon by the defendant and
objected by the plaintiffs/appellants.
9. It appears to this Court as has been found
and applied by the lower Appellate Court that
the entire theory and principles to be followed
by a handwriting expert, are available in the
report of Mr. S.P. Sarkar. The said principles
have been extracted and applied by the Court
below. However, the two Courts below have
concurrently found that Mr. S.P. Sarkar, the
other handwriting expert, could not be
sustained in cross-examination.
10. On the other hand, the conclusion of the first
expert Mr. H.C. Ganguly has been found to be
most sustainable albeit without a detailed
theory being recorded in the opinion.
11. Applying the test laid down in the Safi
Mohammed case (supra), it is seen that the
role of an expert is to not only opine on the
genuineness of a signature but also indicate
the theory and methodology to be adopted for
arriving at such conclusion.
"17. It is further contended by the
learned counsel that since neither of the
witnesses PW 27 and PW 32 are expert
witnesses within the meaning of Section 45
of the Evidence Act to give their expert
opinion on Ext. D-3 sketch map, reliance
cannot be placed upon their opinion or
evidence to convict the appellant. Therefore,
the learned counsel for the appellant
submits that their opinion being outside the
sphere of the alleged expertise, the same is
of no significance. Hence, the same could
not have been relied upon by the court to
convict the appellant. PW 27 cannot be held
to be a competent person to give expert
opinion on the seized document Ext. D-3.
18. Further, it is urged that both the
witnesses were never posted and worked in
that area. Therefore, they neither had the
knowledge of the area nor did they visit the
area as is evident from their statement of
evidence on record. In this regard, he has
placed reliance upon the evidence elicited in
the cross-examination of PW 27 who has
categorically admitted the same. So also PW
32 with reference to Ext. P-4 and Ext. P-5
has stated as above. Therefore, the
statement of evidence given by the said
witnesses in the case could not have been
placed reliance upon by both the trial court
and the High Court to record a finding that
the appellant is guilty of the offence
punishable under Section 3(1)(c) of the Act
and to convict and sentence him."
12. The conclusion of the expert Mr. H.C.
Ganguly was found acceptable and conclusive
by the two Courts below, even without
referring to the principles expounded by the
other handwriting expert Mr. S.P. Sarkar.
13. The first expert Mr. H.C. Ganguly stood by
his opinion, even after vigorous cross-
examination. The opinion of Mr. Ganguly
follows the methodology to be adopted by a
handwriting expert. The Court below has
discussed such theory and has rightly
accepted the conclusions of Mr. Ganguly.
14. In the backdrop of the above, this Court is of
the view that there is no perversity
whatsoever in the findings of the two Courts
below.
15. The next argument advanced by Mr.
Chatterjee is that in the face of the two
opinions which are contradictory, the Courts
below should have ordinarily called for a third
opinion.
16. This Court has carefully considered the
judgement of the two Courts below and the
evidence of the two experts. When two Courts
below have concurrently found the opinion of
one expert acceptable and the other
unacceptable, and sufficient reasons having
been advanced for accepting the one opinion,
this Court is of the clear and explicit view
that the same did not warrant calling for a
third expert.
17. In the backdrop of the above discussion, this
Court does not find any substantial questions
of law for admitting the second appeal under
Section 100 of the C.P.C.
18. F.A. 42 of 2023 shall stand dismissed.
19. There shall be no order as to costs.
20. All parties shall act on the server copy of this
order duly downloaded from the official
website of this Court.
(Rajasekhar Mantha, J.)
(Supratim Bhattacharya, J.)
