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2005 DIGILAW 472 (MAD)

S. J. v. Sathiyanesan VS Samuel Gnanadhas

2005-03-19

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition, filed under Article 227 of the Constitution of India, against the Order of the Subordinate Judge, Padmanabhapuram dated 21.06.2004 in I.A.No.140 of 2004 in O.S.No.7 of 2004, as stated therein.) This Civil Revision Petition is directed against the Order of the Subordinate Judge, Padmanabhapuram dated 21.06.2004 in I.A.No.140 of 2004 in O.S.No.7 of 2004, dismissing the Application filed by the Revision Petitioner / Defendant to send the disputed Suit Promissory Note for obtaining opinion of the Hand-writing Expert. The Defendant in O.S.No.7 of 2004 is the Revision Petitioner. 2. C.M.P.No.43 of 2004 and V.C.M.P.No.38 of 2005 came up for hearing before this Court. By consent of both the parties, the main Civil Revision Petition itself was taken up for final hearing and disposal. 3. The Respondent / Plaintiff has filed the Suit in O.S.No.7 of 2004 on the file of the Subordinate Court, Padmanabhapuram based on a Promissory Note. Case of the Plaintiff is that the Defendant (who is the Son of his Paternal Uncle) has borrowed a sum of Rs.1,50,000/- from the Plaintiff in January 1998 agreeing to repay the same within one month. The Defendant was delaying the payment. Thereafter, the Defendant had written a Letter to the Plaintiff on 27.08.1998 agreeing to discharge his liability with interest. Even thereafter, there was delay in repayment of the amount. To discharge his liability, the Defendant had executed the Suit Promissory Note on 04.06.2001 in favour of the Plaintiff. Since the Defendant is close relative, the Plaintiff has waived the Interest upto the date of Execution of the Promissory Note. Since the Defendant was delaying the payment, after issuing the Notice of Demand on 05.01.2004, the Plaintiff has filed the Suit on the same day - 05.01.2004. The Suit was filed for recovery of a sum of Rs.2,43,000/-. 4. Denying borrowal of the amount from the Plaintiff, the Defendant has filed Written Statement interalia contending that the Suit Promissory Note is a forged one. According to the Revision Petitioner / Defendant, the Plaintiff negotiated with the Defendant to sell the Property described as Third Item in the Schedule to the Attachment Before Judgment Petition in I.A.No.7 of 2004 to a proposed purchaser and requested the Defendant to execute the General Power of Attorney in his favour, so as to enable the Plaintiff to execute the Sale Deed according to his wishes. Since the Defendant has denied the request of the Plaintiff, the Plaintiff has created fraudulent Promissory Note by forging the Signature of the Defendant. Along with the Written Statement, the Defendant has filed an Application in I.A.No.140 of 2004 under Order XXVI Rule 10(A) C.P.C and Sec.73 of the Indian Evidence Act r/w Sec.151 C.P.C., praying the Court to issue a Commission to Handwriting Expert for the purpose of comparison of disputed signature in the Suit Promissory Note with the admitted signature. In the Petition, the Defendant has enumerated number of documents including Vakalat, Written Statement and his specimen signatures and other documents (said to be containing his admitted signatures) for sending it to the opinion of the Expert for comparison with the disputed signature found in the Suit Promissory Note. 5. The Application filed by the Revision Petitioner / Defendant was strongly resisted by the Respondent / Plaintiff on the ground that the Application is filed only to escape from his liability. It was further contended that the Court itself can compare the admitted signature and the disputed signature, exercising the power under Sec.73 of the Indian Evidence Act. 6. Upon consideration of the contention of both sides, learned Subordinate Judge has dismissed the Application finding that the Court itself has got power and authority to compare the disputed signature with that of the admitted signature under Sec.73 of the Indian Evidence Act and hence, there is no necessity for sending the Suit Promissory Note to the Handwriting Expert. 7. Aggrieved over the order of dismissal of the Application, the Revision Petitioner / Defendant has preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner has submitted that under Sec.73 of the Indian Evidence Act, the Court has got the power to compare the disputed Signature with that of the admitted signature, better evidence is the opinion of the Handwriting Expert and the Trial Court erred in denying the opportunity to the Defendant to adduce the best evidence. Submitting that only with the assistance of the Expert, the Court can reach the conclusion, learned counsel for the Revision Petitioner has relied upon the decision reported in State (Delhi Administration) ..Vs.. Pali Ram (A.I.R. 1979 S.C. 14). 8. Submitting that only with the assistance of the Expert, the Court can reach the conclusion, learned counsel for the Revision Petitioner has relied upon the decision reported in State (Delhi Administration) ..Vs.. Pali Ram (A.I.R. 1979 S.C. 14). 8. Countering the arguments, learned counsel for the Respondent / Plaintiff has submitted that the opinion evidence of the Handwriting Expert is not conclusive and that the Court itself has got the power to compare the disputed signature with that of the admitted signature. Reliance is placed upon the decision of this Court reported in Kalaimani And Another Vs. Chinnapaiyan Alias Perumal Gounder ( 2004 (5) C.T.C. 617 ) wherein Division Bench of this Court has held that under Section 73 of the Indian Evidence Act, the Court has got the power and authority to compare the disputed signature with that of the admitted signature. 9. The only point that arises for consideration in this Civil Revision Petition is whether the learned Subordinate Judge was right in declining to appoint a Commissioner to send the Suit Promissory Note (containing the disputed signature) to the Handwriting Expert / Office of Forensic Science Laboratory, Documents Division, Kamarajar Salai, Chennai – 600 004 on the ground that the Court itself has got the power of comparison under Section 73 of the Indian Evidence Act. 10. The Handwriting of a person may be interalia proved: - i. by the evidence of a person familiar with such writings (Sec.47); ii.by the testimony of an expert competent to make the comparison on a scientific basis (Sec.45); iii.by the Court by comparison with a writing made in its presence or admitted or proved to be the writing of the person. (Sec.73) In a suit based on Promissory Note, when the Defendant has adopted the plea of forgery, the Handwriting can be proved by the opinion of Handwriting Expert. No doubt, it is unsafe to part with the Promissory Note in custody of the Court for sending it to the Handwriting Expert be it private or Government for his opinion. In this case, the Defendant has sought for Appointment of Commissioner for taking the document for being delivered to the office of Forensic Science Laboratory, at Chennai for obtaining the Expert Opinion. The Revision Petitioner / Defendant has adopted proper and desirable course for obtaining the opinion of the Handwriting Expert. 11. The study of comparison of Handwriting is fallible. In this case, the Defendant has sought for Appointment of Commissioner for taking the document for being delivered to the office of Forensic Science Laboratory, at Chennai for obtaining the Expert Opinion. The Revision Petitioner / Defendant has adopted proper and desirable course for obtaining the opinion of the Handwriting Expert. 11. The study of comparison of Handwriting is fallible. The Science of Calligraphy has been so uncertain; the evidence of Handwriting Expert is inconclusive in character. In this case, the Defendant has adopted definite plea of forgery, denying his signature in the Suit Promissory Note. The best attainable evidence is the opinion of the Handwriting Expert though it is not conclusive. No doubt, under Sec.73 of the Indian Evidence Act, the Court has got the power to compare the disputed signature with the admitted signature. Due to the uncertainty in the study of Science of Calligraphy, the Judge must normally be restrained to exercise the power under Section 73 of the Indian Evidence Act to compare the Handwriting by using his own eyes. Without the opinion evidence of Handwriting Expert, if the Court embarks upon such comparison, the Court might appear to act as a Handwriting Expert. The Handwriting Expert is equipped with the instruments and specially skilled in the Art of comparing the signatures. The Court is neither equipped with the instruments nor specially skilled in comparing the signature. 12. Learned counsel for the Respondent / Plaintiff has relied upon the decision of the Division Bench of this Court reported in Kalaimani And Another.Vs. Chinnapaiyan Alias Perumal Gounder ( 2004 (5) C.T.C. 617 ) wherein this Court has held that "Comparison of disputed signature with contemporaneous signature in Court Records – Permissibility - This provision enables Court using its own eyes to compare disputed signature with admitted signatures – Normally Court should not take up such comparison – But Court is competent to compare disputed signature with admitted signature available on record – Such comparison is permissible". 13. Even in the said decision, this Court has referred to the decision reported in Ajit Savant Majagavi ..Vs.. State Of Karnataka (A.I.R. 1997 S.C. 3255) wherein the Supreme Court has held that as a matter of extreme caution, the Court should not normally take up the responsibility of comparing the disputed signature with that of the admitted signature. 13. Even in the said decision, this Court has referred to the decision reported in Ajit Savant Majagavi ..Vs.. State Of Karnataka (A.I.R. 1997 S.C. 3255) wherein the Supreme Court has held that as a matter of extreme caution, the Court should not normally take up the responsibility of comparing the disputed signature with that of the admitted signature. In the said decision, the Supreme Court has held as follows: - "...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 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...." 14. Of course, Section 73 of the Indian Evidence Act gives an express authority to the Court to compare the disputed signature with that of the admitted signatures. This Power under Sec.73 of the Indian Evidence Act is only supplementary. Conferring the power upon the Court to apply the test of comparison, it is to be noted that in cases of accepting evidence of Handwriting Expert or where there are evidence of two or more opinion evidence of the Handwriting Experts, in such cases the Court is to apply test of comparison by using its own eyes to compare the disputed Handwriting with that of the admitted signatures. Such comparison by the Court is not only sanctioned by law, but also provided in Sec.73. When there is paucity evidence or when there is contra opinion of the Experts when the Court feels the necessity of applying the test of comparison, the Court could apply the test of comparison by its own eyes to settle the questions of disputed authorship of the Handwriting. When the Handwriting has not been proved by any other independent evidence and in cases of necessity, the Court may have recourse to the provision of Sec.73 of the Indian Evidence Act to determine whether the document was signed by the Defendant or not. In the facts and circumstances of the case when the opinion of the Handwriting Expert is available, the Court is not obliged to accept the Expert's evidence as automatic. In the facts and circumstances of the case when the opinion of the Handwriting Expert is available, the Court is not obliged to accept the Expert's evidence as automatic. In such cases, the Court is competent to exercise its power under Sec.73 of the Indian Evidence Act for deciding the question. 15. Where the facts and circumstances of the case indicate that application for sending the document for obtaining the opinion of the Handwriting Expert has been filed to delay the trial of the proceedings, in such cases, the Court may decline to send the document to the Handwriting Expert. It is seen from the records that in this case, the Written Statement was filed on 31.01.2004. Denying the signature in the Promissory Note along with the Written Statement, the Defendant has filed the Application in I.A.No.140 of 2004 requesting the Court to send the Suit Promissory Note to the Handwriting Expert – Office of the Director of Forensic Science Laboratory, Documents Division Chennai by appointing the Commissioner. The parties are yet to go on trial. The Defendant has filed the Application at the earliest. An opportunity is to be given to him to produce the best attainable evidence to substantiate his defence. 16. Learned Subordinate Judge has erred in declining to appoint the Commissioner for sending the Suit Promissory Note to the Handwriting Expert for obtaining the opinion. Along with the Petition, the Defendant has also enumerated number of documents said to be containing his admitted signatures. To afford sufficient opportunity to the Defendant to produce the best evidence, the order of the Subordinate Judge is to be reversed allowing this Civil Revision Petition. 17. Therefore, the order of the learned Subordinate Judge, Padmanabhapuram dated 21.06.2004 in I.A.No.140 of 2004 in O.S.No.7 of 2004 is set aside and this Civil Revision Petition is allowed. Learned Subordinate Judge, Padmanabhapuram is directed to appoint Commissioner for the purpose of sending the Suit Promissory Note along with the documents listed in the Petition (containing the admitted signatures of the Revision Petitioner / Defendant) to the Office of Forensic Science Laboratory, Documents Division, Kamarajar Salai, Chennai – 600 004 for the purpose of obtaining the opinion evidence of the Handwriting Expert. The connected V.C.M.P.No.38 of 2005 and C.M.P.No.43 of 2004 are closed. In the circumstances of the case, there is no order as to costs.