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2002 DIGILAW 609 (KER)

K. Raghu v. S. Rajendra Kumar

2002-09-16

T.M.HASSAN PILLAI

body2002
Judgment :- Heard. 2. Ext.D1 receipt said to be issued or passed by the complainant in C.C.No.528 of 1999 on the file of the Judicial First Class Magistrate Court, Nadumangad was sought to be sent to the handwriting expert for expert opinion by filing an application, C.M.P.No.656 of 2002 and the prayer made in that petition by the revision petitioner was rejected or declined by the learned Magistrate on the ground that that receipt is dated 12-2-1999 and the alleged transaction of borrowal of Rs.1,20,000/- from the complainant by the revision petitioner (petitioner in the C.M.P.) was on 20-9-1999. Learned Magistrate accepted the contention of the learned counsel for the complainant (1st respondent herein) that from that fact it is evident that Ext.D1 is created by the accused-revision petitioner. The other ground to reject the prayer made by the accused-revision petitioner is that there are other modes of proving Ext.D1 such as comparison of Ext.D1 with the admitted handwriting of the complainant by the Court under Section 73 of the Indian Evidence Act. 3. Learned counsel for the revision petitioner Sri Unnikrishnan vehemently urged before me that the Magistrate passed an erroneous order by declining to sent Ext.D1 to handwriting expert for expert opinion. Counsel submitted that the evidence on record justifies a conclusion that there were other transaction between the parties and the amount due to the complainant, ie. Rs.1,60,000/- under various transactions between the parties were paid by the revision petitioner to the complainant as early as on 12-2-1999 in total discharge of the liability of the revision petitioner to the complainant/1st respondent. The contention of he learned counsel for the revision petitioner is that there are materials to prove the revision petitioner's case that there were other transactions between the parties and on the date of issuing Ext.Dt receipt the liability to be discharged by the revision petitioner under various transactions between him and 1st respondent was Rs.16,000/-. He submitted that two blank cheques signed by the revision petitioner were issued by him to the complainant and one of the cheques has been made use of by the complainant to file this complaint. 4. On going through the materials on record, I am not inclined to accept the contention of Sri Unnikrishnan. He submitted that two blank cheques signed by the revision petitioner were issued by him to the complainant and one of the cheques has been made use of by the complainant to file this complaint. 4. On going through the materials on record, I am not inclined to accept the contention of Sri Unnikrishnan. Pw.1 has deposed in his evidence that on 20-9-1999 the revision petitioner herein borrowed from him Rs.1,20,000/- and issued to him on that day a post dated cheque bearing the date 25-10-1999. He has also stated in his evidence that that is the single monetary transaction between him and the revision petitioner. He also denied in his evidence that Ext.D1 receipt is in his handwriting and it is not a receipt given by him to accused. I need not express any opinion as to whether the evidence given by PW.1 is true or not on the ground that it is for the Magistrate to decide on an evaluation of the evidence whether the evidence given by the complainant is acceptable or not. But I have to point out some circumstances, appearing in evidence, which enables the court to hold prima facie that that contention is not sustainable. Inconsistent suggestion were made to Pw.1 while he was cross-examined. One of the suggestions made to him is that there were monetary transactions between the parties prior to the transaction alleged in the complaint, that the liability was discharged, that he retained with him Ext.P1 cheque and that he had informed the revision petitioner in writing that he would personally hand over the cheque to him (that suggestion is denied by him). The other suggestion made is that there was no monetary transaction between them. It was not suggested to PW.1 that a property was purchased in the joint names of Pw.1, accused and Anil Kumar. In his 313 Cr.P.C. statement also the revision petitioner has not set up such a defence case. DW 1 alone gave evidence on that aspect. In his 313 Cr. P.C. statement the defence case set up by the petitioner/ accused was that he had borrowed some money from the complainant (he had not stated the date of borrowal and his statement does not disclose the precise amount borrowed by him). His assertion is that for securing repayment he had issued two signed blank cheques to the complainant. P.C. statement the defence case set up by the petitioner/ accused was that he had borrowed some money from the complainant (he had not stated the date of borrowal and his statement does not disclose the precise amount borrowed by him). His assertion is that for securing repayment he had issued two signed blank cheques to the complainant. He had discharged the liability (his statement is silent as to when he had repaid the amount). Even though demanded, the cheques were not returned to him (it is not disclosed when demand for return of cheque was made i.e., date of demand, and complainant had given him receipt written by him. So at this stage it may not be possible to say that there were series of transactions between the revision petitioner and the complainant so as to accept the contention of the learned counsel Sri Unnikrishnan that even prior to the giving or passing of Ext. D1 receipt, there were monetary transaction between PW1 and the respondent. So prima facie at this stage it may not be possible to say that in Ext. D1 receipt PW.1 (complainant) acknowledged the fact of discharge of liability due under the transaction between PW1 and the revision petitioner. 5. Evidence regarding identity of the author of any document can be tendered (I) by examining the person who is conversant and familiar with the handwriting of such person or (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis and (iii) by the court comparing the disputed document with the admitted one. 6. It is to be pointed out that modes of proof envisaged in Sections 45 and 47 of the Indian Evidence Act are not exhaustive for proving the genuineness or otherwise of a document. The three Judge Bench of the Supreme Court observed in Mobarik Ali Ahmed v. State of Bombay AIR 1957 SC 857 thus: "The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship." The same view was expressed by the same three Judge bench of the Supreme Court in Ram Chandra v. State of U.P. (AIR 1957 SC 381). The settled position of law is also that the authorship of some questioned receipt or letters can be established on the strength of "various items of external and internal evidence" and Sections 45 and 47 of the Indian Evidence Act are not exhaustive for proving the genuineness or otherwise of a document. 7. The function of a handwriting expert is to give his opinion after a scientific comparison of the disputed writing with the admitted writing (specimen writing) with regard to the points of similarity and dissimilarity in the two sets of writings. It is pertinent here to point out that handwriting experts are generally engaged by one of the contesting parties and they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging them. That is the reason why we come across cases of conflicting opinion given by two handwriting experts engaged by opposite parties. Extra caution and care is to be exercised in evaluating the opinion of handwriting experts before accepting the same. That is the reason why we come across cases of conflicting opinion given by two handwriting experts engaged by opposite parties. Extra caution and care is to be exercised in evaluating the opinion of handwriting experts before accepting the same. Courts have, as a rule of prudence, looked for corroboration before acting on the evidence of handwriting experts on the ground that such opinion evidence cannot take the place of substantive evidence (See State of Maharashtra v. Sukh Deve Singh 1992 SCC (Cri) 708). The Supreme Court further held in that decision the there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated. Courts have been slow in placing implicit reliance on the opinion evidence of handwriting experts because of the imperfect nature of the science of identification of handwriting and its accepted infallibility. There is no absolute rule of law or even of prudence which has ripended into a rule of law that in no case can the court base its finding solely on the opinion of a handwriting expert, but the imperfect and frail nature of the science of identification of the author by comparison of his admitted handwriting with the disputed ones has place a heavy responsibility on the courts to exercise extra care and caution before acting on such opinion. For placing reliance on the evidence of handwriting with expert it is to be shown that he has not betrayed any bias and the reason on which he has based his opinion are convincing and satisfactory. Courts are wary to act solely on the evidence of a handwriting expert's opinion for this reason. The Supreme Court in Gulazar Ali v. State of H.P. (1998 SCC (Cri) 605) also held that the observation of the High Court that "there is natural tendency on the part of an expect witness to support the view of the person who called him" cannot be down staged for , many so called experts have been shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying hem. 8. It cannot be disputed that by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author. 8. It cannot be disputed that by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author. Science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the court should be fully satisfied about the competence and credibility of the handwriting expert. 9. Direction can be given by the Court under Section 73 of the Indian Evidence Act to any person present it to give his specimen writing for the purpose of enabling that court to compare such writing with the writing alleged to have been written by such person and it is obvious from Section 73 of the Indian Evidence Act that it is the Court which has to make the comparison and it may form the opinion itself by comparing the disputed and the admitted writings or seek the assistance of an expert, to put before the Court all the material, together with reasons, which induce the expert to come to a conclusion that the disputed and the admitted writings are of one and the same author so that the court may form its own opinion by its own assessment of the report of the expert based on the data furnished by the expert. The second paragraph of Section 73 enables the court to direct any person present before it to give his specimen writing for the propose of enabling the court to compare (See Sukhvinder Singh v. State of Punjab (1994 SCC (Crl) 1376). So, the Court can very well compare the signature and writing with the specimen (admitted signature and writing) and form its own opinion. I am not called upon here to deal with the question whether a conclusion can be based solely on the comparison of admitted (specimen) handwriting with the disputed handwriting of PW.1 that Ext.D1 is genuine or not. 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 solely on comparison made by himself (See State (Delhi Administration) V. Pali Ram (AIR 1979 SC 14). 10. 10. Expect evidence of handwriting can never be conclusive because it is, after all opinion evidence, and this view was reiterated by five Judge Bench of the Supreme Court expert evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence (See the Observation made by five Judge Bench in Shashi Kumar Banarjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, and the law laid down by the Supreme Court in Ishwari Prasad Misra v. Md. Isa, AIR 1963 SC 1728. Opinion of a handwriting expert being opinion evidence, is by its very nature, weak and infirm (Magan Bihari Lal v. State of Punjab. 1977 SCC (Cri) 313). 11. In view of the above stated position of law, no useful purpose will be served by sending Ext.D1 to handwriting expert for comparison of handwriting in Ext.D1 with the admitted handwriting of PW.1. As pointed out earlier, section 45 of the Indian Evidence Act is not exhaustive for proving the genuineness or authorship of Ext.D1. there are other modes of proving the disputed handwriting. If it is assumed that handwriting of the complainant can be proved by adducing circumstantial evidence, the principle that governs appreciation of circumstantial evidence cannot be ignored (Baru Rm v. Smt. Prasanni, AIR 1959 SC 93). Here, on the defense side DW.1 was examined to prove that Ext.D1 was given to him by the complainant from his footwear shop at Nedumangad on 12-2-1999 at the time of making payment of Rs.25,000/- by him on behalf of the accused in partial discharge of the liability due under the transaction between the complainant and the accused. So, the revision petitioner/accused has adduced evidence in support of his case that Ext.D1 was given to DW.1 by the complainant and it is for the trial Court to weigh the evidence of DW.1 and come to its own conclusion whether the version of DW.1 regarding giving of Ext,D1 to him by the complainant is acceptable or not. If the trial court comes to a conclusion that the evidence of DW.1 is acceptable, that finding would give a quietus to the dispute whether Ext.D1 is written by PW.1 (complainant) or not. If the trial court comes to a conclusion that the evidence of DW.1 is acceptable, that finding would give a quietus to the dispute whether Ext.D1 is written by PW.1 (complainant) or not. Sending Ext.D1 to handwriting expert will only delay the disposal of the case. I do not find any ground to interfere with the impugned order passed by the trial Court. I am also not inclined to give further opportunity to adduce evidence on the side of the accused/revision petitioner to prove the asserted fact that Ext.D1 was issued to him by the complainant. Hence, the revision is dismissed. Magistrate is directed to dispose of the case as expeditiously as possible.