Balagam Nageswara Rao vs Rapolu Prabhakar
2023 Latest Caselaw 3559 Tel

            HON'BLE SRI JUSTICE K. LAKSHMAN

         CIVIL REVISION PETITION Nos.2343, 2345, 2364
                           AND
                        3077 OF 2023
COMMON ORDER:

      The lis involved in these civil revision petitions and the parties

are one and the same. Therefore, the same were heard together and

decided by way of this common order:-

      2. Heard Mr. C.Sharan Reddy, learned counsel for the petitioner

and Mr. Eriga Ganesh, learned counsel for the respondent.

(for sake of convenience, hereinafter the parties are referred to as they are arrayed in suit O.S.No.199 of 2019)

3. These revisions are filed by the defendant. C.R.P.No.2343 of

2023 is filed challenging the orders all dated 13.07.2023 in I.A.No.3

of 2023; C.R.P.No.2345 of 2023 is filed against the orders in I.A.No.2

of 2023; C.R.P.No.2364 of 2023 is filed against the order in I.A.No.5

of 2023 and C.R.P.No.3077 of 2023 is filed against the order in

I.A.No.04 of 2023 in O.S.No.119 of 2019 passed by the Principal

Senior Civil Judge at Kothagudem.

4. The plaintiff had filed a suit vide O.S.No.119 of 2019 against

the defendant seeking recovery of an amount of Rs.6,00,000/- with

subsequent interest basing on promissory note dated 25.05.2017. It is

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the specific contention of the plaintiff that both the plaintiff and the

defendant are Drivers in TSRTC and thus, they are acquainted with

each other. With the said acquaintance, the defendant borrowed an

amount of Rs.4,00,000/- from the plaintiff for his family necessities

on 25.05.2017 and he had executed the subject promissory note in

favour of the plaintiff. Despite demands, the defendant failed to pay

the said amount. Therefore, he had filed the said suit against the

defendant for recovery.

5. The defendant filed written statement denying borrowing of

the said amount and also execution of the suit promissory note. In

paragraph No.12 of the written statement, defendant had specifically

contended that the signature on the alleged suit promissory note does

not belong to him, as such he reserves right to send the alleged

promissory note to the Expert to compare his signature on the alleged

suit promissory note since the said signature is rank forged by the

plaintiff and his men.

6. To prove the said claim, the plaintiff examined himself as

P.W.1, and P.W.2 and P.W.3 attestors to the said promissory note.

The defendant examined himself as D.W.1. The suit is posted for

arguments. At this stage, the defendant has filed four Interlocutory

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Applications viz I.A.2 of 2023 to recall him (D.W.2) for marking of

attendance register to be called from the employer, I.A.No.3 of 2023

to recall D.W.1 for further marking of Attendance Register, I.A.No.4

of 2023 to send suit promissory note to the Expert for opinion.

I.A.No.5 of 2023 to call for the Attendance Register pertaining to the

defendant who worked as RTC Driver vide Staff No.326090 from the

Depot Manager, TSRTC, Kothagudem, Bhadradri Kothagudem

District, on the following grounds:-

i. He never executed the suit promissory note.

ii. The plaintiff created the suit promissory note in collusion with

P.Ws.2 and 3.

iii. The plaintiff forged his signature.

iv.    His signature is rank forged.

 v.    The said facts were also mentioned by him in the written

       statement itself.

vi.    The plaintiff taking advantage of his acquaintance, created the

suit promissory note and filed the present suit for wrongful

gain.

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vii. During cross-examination, plaintiff had admitted that the suit

promissory note was executed by the defendant on 25.05.2017

at his residence, Palvancha at about 4.30 P.M.

viii. Even P.Ws.2 and 3 the alleged attestors, during their cross-

examination, admitted that the transaction took place between

4.30 to 5.00 P.M. on 25.05.2017. He was on duty on

25.05.2017.

ix. In order to prove the same, calling for the Attendance Register

from the employer to mark the said Attendance Register on

calling from the employer by reopening his evidence and

recalling him is necessary.

7. The aforesaid applications were opposed by the plaintiff on

the following grounds:-

i. The defendant has executed suit promissory note on

25.05.2017.

ii. To prove the same, he examined himself as P.W.1 and also

examined the attestors of the suit promissory note as P.Ws.2

and 3. The defendant has filed the aforesaid applications only to

drag on the proceedings.

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iii. Having executed the suit promissory note, he failed to repay the

amount borrowed and in order to evade the said payment and to

drag on the proceedings, he has filed the aforesaid four

applications at a belated stage.

iv. There is delay in filing I.A.No.4 of 2023.

8. The trial Court dismissed the aforesaid Interlocutory

Applications vide separate orders all dated 13.07.2023 on the

following grounds:-

i. There are no admitted signatures available in the Court for

comparison with the disputed signatures of the year 2017.

ii. The Court has power to compare the signatures of the defendant

with the admitted signatures under Section 73 of the Indian

Evidence Act (for short, 'the Act').

iii. The denial of signatures by the defendant on his vakalath,

written statement, chief affidavit, as contended by the plaintiff

will be looked into at the time of appreciation of evidence while

hearing the suit itself.

iv. In the Attendance Register, only signatures would be there.

Time of signing would not be there. Therefore, no useful

purpose would be served in calling for the Attendance Register

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of the defendant from his employer and sending the same to the

Expert for comparison of his signature in the Attendance

Register with the disputed signature on the suit promissory note.

v. Therefore, there is no need to call for the Attendance Register

by recalling D.W.2 by re-opening his evidence.

9. Sri C.Sharan Reddy, learned counsel for the defendant would

contend that the defendant had specifically pleaded in the written

statement itself that his signature was forged by the plaintiff in

collusion with P.Ws.2 and 3. During cross-examination, the plaintiff

categorically admitted that subject promissory note was executed at

his residence at 4.30 P.M. on 25.05.2017. In fact, on 25.05.2017, the

defendant was on duty. Therefore, sending the subject promissory

note to the Expert for opinion, calling for Attendance Register from

the employer of the defendant, reopening of his evidence and recalling

him are necessary for proper adjudication of the lis involved in the

present suit. Without considering the said aspects, the Trial Court

erroneously dismissed the four applications and caused prejudice to

the defendant.

10. Whereas, Mr. Eriga Ganesh, learned counsel for the plaintiff

would contend that there is delay in filing the applications. The

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defendant having executed the subject promissory note, filed the

aforesaid applications on hyper technicalities and to drag on the

proceedings. On considering the said aspects only, the trial Court

rightly dismissed the said applications. There is no error in it.

11. As discussed above, the defendant by specifically

contending in his written statement that his signature was forged on

the suit promissory note, dated 25.05.2017 by the plaintiff in collusion

with the attestors P.Ws.2 and 3 laid foundation for filing the aforesaid

petition under Section 45 of the Indian Evidence Act to send the

signatures for Expert to obtain opinion. 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.

12. It is relevant to extract Sections - 45 and 73 of the Evidence

Act and the same are 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

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[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.

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

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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.

This section applies also, with any necessary modifications, to finger-impressions."

13. 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.

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14. In State (Delhi Admn.) v. Pali Ram 1, the Hon'ble

Supreme Court held that prudence requires that a judge shall obtain

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."

15. 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

. (1979) 2 SCC 158

. (1997) 7 SCC 110

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signatures, such signatures shall be sent for expert opinion under

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

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of experts. But this does not mean that the 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]."

16. 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

. (2008) 4 SCC 530

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finger impression. The comparison of the two 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."

17. 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

. (2012) 12 SCC 406

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from comparing signatures or handwriting, by 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."

18. Therefore, on perusal of the dicta in the above decisions, it

can be said that the Courts shall normally seek expert opinion when

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they are posed with a situation where they have to compare admitted

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.

19. In the light of the aforesaid discussion, coming to the facts

of the present case, as discussed above, the defendant laid foundation

by contending in paragraph No.12 of the written statement that his

signature was forged by the plaintiff and said signature is rank forged

in collusion with the P.Ws. 2 and 3. The said written statement was

filed on 30.07.2019. He has already entered his appearance and filed

vakalath. Therefore, his signature would be available on vakalath,

written statement and also chief affidavit. Defendant cross-examined

plaintiff (P.W.1) and the attestors (P.Ws.2 and 3) of the suit

promissory note with regard to forgery. However, the P.Ws. 1 to 3

have denied the same. Without considering the said aspects, the trial

Court dismissed the I.A.No.4 of 2023 filed by the defendant seeking

to send the suit promissory note to the Expert for opinion under

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Section 45 of the Indian Evidence Act. The finding of the trial Court

that there are no admitted signatures filed before the court for

comparison of the disputed signatures of the year 2017 and the Court

is having power to compare the signature of the petitioner with the

admitted signatures under Section 73 of the Act, is contrary to the

purport of Section 45 of the Indian Evidence Act and also the

principle laid down by the Apex Court in the aforesaid judgments.

20. It is also relevant to note that no prejudice would be caused

to the plaintiff in the event of sending the suit promissory note to

Expert for opinion. The said information will be useful to the Trial

Court in deciding the lis involved in the present suit effectively.

21. As discussed supra, this Court is inclined to set aside the

order dated 13.07.2023 in I.A.No.4 of 2023 in O.S.No119 of 2019

passed by the learned Principle Senior Civil Judge, Kothagudem and

to send the suit promissory note dated 25.05.2017 to the Expert to

compare the signature of the defendant on the suit promissory note

with that of his signature on vakalath, written statement and chief

affidavit filed in lieu of chief examination of the defendant to decide

the list without prejudice.

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22. The defendant had filed the aforesaid I.A.2 of 2023 to recall

the defendant (D.W.2) for marking of attendance register to be called

from the employer, I.A.No.3 of 2023 to recall him for further marking

of Attendance Register and I.A.No.5 of 2023 to call for the

Attendance Register pertaining to the defendant from his employer/the

Depot Manager, TSRTC, Kothagudem, Bhadradri Kothagudem

District, by reopening his evidence and recalling him on the ground

that during cross-examination P.Ws. 1 to 3 have admitted that the suit

promissory note was executed by the defendant at the residence of the

plaintiff on 25.05.2017 between 4 to 5.00 P.M. In fact, according to

the defendant, he was on duty on 25.05.2017 and therefore, the

question of execution of suit promissory note on 25.05.2017 between

4 to 5 P.M. by him does not arise.

23. As rightly held by the trial Court, the Attendance Register

will disclose the signature of employee, but timings would not be

there. However, this court has also allowed I.A.No.4 of 2023 seeking

to send the suit promissory note to the Expert for opinion. Therefore,

there is no need to call for the Attendance Register of the defendant

from employer and there is no need for re-opening the defendant's

evidence and recalling D.W.1. Considering the said facts only, the

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trial Court dismissed the said I.As.2, 3 and 5 of 2023 in O.S.No.119 of

2019.

24. In the light of the aforesaid discussion:-

i. C.R.P.No.3077 of 2023 is allowed. Order dated 13.07.2023 in

I.A.No.4 of 2023 in O.S.No119 of 2019 passed by the learned

Principle Senior Civil Judge, Kothagudem is set aside. I.A.No.4 of

2023 is allowed. The trial court shall send the suit promissory note

dated 25.05.2017 to the Expert to compare the signature of the

defendant on the suit promissory note with that of his signature on

vakalath, written statement and affidavit filed in lieu of chief

examination of the defendant. The defendant shall bear the

expenses for the same.

ii. C.R.P.Nos.2343, 2345 and 2364 of 2023 are dismissed.

As a sequel, the miscellaneous petitions, if any, pending in the

revisions shall stand closed.

_________________________ JUSTICE K. LAKSHMAN 03.11.2023.

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