Kondti Narasaiah vs Kethamalla Atchaiah
2023 Latest Caselaw 2613 Tel

             HON'BLE SRI JUSTICE K. LAKSHMAN

          CIVIL REVISION PETITION No.1765 of 2023
ORDER:

Heard Sri P.Rama Sharana Sharma, learned counsel for the

petitioner. Despite service of notice, none appears for the respondent.

2. Respondent herein filed a suit vide O.S.No.199 of 2018

against the petitioner herein seeking recovery of an amount of

Rs.3,50,000/- together with interest basing on the promissory note

dated 20.07.2016. The petitioner herein filed written statement in the

said suit on 27.02.2019 specifically contending that he never executed

the said promissory note and his signatures are forged and created for

the purpose of filing the present suit.

3. In the said suit, the plaintiff's evidence was closed and it was

posted for defendant's evidence. At that stage, the petitioner herein

filed an application vide I.A.No.199 of 2019 under Section 45 of the

Indian Evidence Act to send the suit promissory note dated

20.07.2016 to the Expert opinion. The same was dismissed vide order

dated 02.02.2023.

4. It is the specific contention of the petitioner that he never

executed the suit promissory note dated 20.07.2016, his signature was

forged and created for the purpose of this case. Therefore, sending of

the said signature for comparison and obtaining Expert opinion is

necessary to decide the lis involved in the said suit. However,

respondent herein did not file any counter in the said Interlocutory

Application. The Court below dismissed the said I.A. No.199 of 2019

on the ground that the suit is at the stage of defendant's evidence. The

petitioner herein failed to file contemporary period admitted

signatures to send the same for comparison with the signature on suit

promissory note.

5. In view of the above facts, 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 [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 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."

6. 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.

7. 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:

. (1979) 2 SCC 158

"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."

8. 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 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.

. (1997) 7 SCC 110

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 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]."

9. 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 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

. (2008) 4 SCC 530

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."

10. 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 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

. (2012) 12 SCC 406

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."

11. Therefore, in view of 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 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.

12. 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

his signature was forged. The object and purport of Section - 45 of

the Evidence Act is to be considered by the trial Court more

particularly when there is specific denial by the petitioner - defendant

of signatures on the suit promissory note and that his signature was

forged. As rightly contended by learned counsel for the petitioner, no

prejudice would be caused to the respondent - plaintiff in obtaining

expert opinion by sending the suit promissory note, dated 20.07.2016.

13. There is no consideration of the said aspects in the

impugned order dated 02.02.2023 by the Court below and the same is

liable to set aside.

14. In the light of the aforesaid discussion, the Civil Revision

Petition is allowed. The impugned order dated 02.02.2023 in

I.A.No.199 of 2019 in O.S. No.199 of 2018 passed by learned

Principal Senior Civil Judge, at Kothagudem, is set aside, and said

I.A.No.199 of 2019 is accordingly allowed. The trial Court shall send

the said suit promissory note dated 20.07.2016 to the hand-writing

Expert to compare the signature of the petitioner herein on suit

promissory note dated 20.07.2016 with the admitted signatures of the

petitioner for giving opinion as to its genuineness for proper

adjudication of the matter.

As a sequel, the miscellaneous petitions, if any, pending shall stand closed.

_________________________ JUSTICE K. LAKSHMAN, Date: 22.09.2023 vvr