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2006 DIGILAW 587 (AP)

Kaveti Sarada v. Vemineni Hymavathi

2006-04-28

G.ROHINI

body2006
ORDER This revision petition is directed against the order dated 3-8-2004 in I.A. No.7 43/2003 in O.S. NO.235/2000 on the file of the court of the Additional Senior Civil Judge, Nellore dismissing the application filed under Order 26 Rule 10 of the Code of Civil Procedure r/w Section 45 of the Indian Evidence Act to send the suit pronote, Ex.A-1, to the handwriting expert for comparing with the admitted signatures in the vakalat, written statement etc. 2. The facts in brief are as under: Defendant is the revision petitioner. The plaintiff-respondent filed O.S. No.235/2000 for recovery of a sum of Rs.2,48,000/- on the basis of a pronote dated 10-12-1998. The defendant contested the suit claim contending that the suit pronote dated 10-12-1998 was a forged document. 3. In support of suit claim, the plaintiff got herself examined as P. W.1 and also examined P.W.2 and P.W.3 who are the attestor and scribe respectively of EX.A-1 pronote. At that stage, the defendant filed I.A. No.74312003 under Order 26 Rule 10, CPC r/w Section 45 of the Indian Evidence Act (for short the "Act") with a prayer to send EX.A-1, pronote to the hand-writing expert (Forensic Laboratory, Red Hills, Hyderabad) (or comparing the signature thereon with her admitted signatures in the vakalat, written statement, deposition etc. The said application was opposed by the plaintiff stating that she had already adduced the evidence to prove the suit pronote by examining the attestor and the scribe and therefore the application filed at the belated stage cannot be maintained. The court below by order dated 3-8-2004 after hearing both the parties dismissed IA No.7 43/2003, which is under challenge in this revision petition. 4.1 have heard the learned counsel for both the parties and perused the material on record. The learned counsel for the petitioner while placing reliance upon the decisions of the Supreme Court in O. Bharathan v. K. Sudhakarad and in R.R. Raju v. K.R. Raju2 contended that in view of the specific objection raised by the defendant as to the genuineness of the suit pronote, the court below ought to have sent the document for expert opinion for comparison of the disputed signatures to meet the ends of the justice. The learned counsel for the petitioner submits that if such method is followed no prejudice would be caused to either side and on the other hand it would enable the court to arrive at a right and definite conclusion. 5. On the other hand, the learned counsel for the respondent relied upon a decision of this Court in Velamala Jagadish, Srikakulam v. I. Haranadha Rao3 in support of his submission that the discretion exercised by the trial court in declining to send the document to an expert for the purpose of comparison of signatures does not warrant any interference. 6. The law is well settled that the opinion of an expert with regard to the signature or handwriting in the disputed document is not conclusive, but it is only a piece of evidence which requires to be taken into consideration along with other evidence produced by the parties and ultimately it is for the Court to arrive at its own conclusion on appreciation of the entire evidence available on record. 7. In Fakruddin v. State of MP.4 the Supreme Court having considered the scope of Sections 45, 47 and 73 of the Act held that both Sections 45 and 47 of the Act, the evidence is an opinion and therefore the court must satisfy itself by such means as are open before acting upon the opinion. It was also observed that where an experts opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. 8. In State (Delhi Admn.) v. Pali Ram5 the same principle has been reiterated holding that even to prove the hand-writing, which is in the nature of comparison, the duty is cast upon the court to use its own mind and eyes to compare the admitted writing with the disputed one. It was also held that when the court forms an opinion that the assistance of an expert is essential to enable it to arrive at a just determination of the issue of the identity of the disputed writing, the fact that this may result in the filling of loopholes in the prosecution case is purely a subsidiary factor. 9. It was also held that when the court forms an opinion that the assistance of an expert is essential to enable it to arrive at a just determination of the issue of the identity of the disputed writing, the fact that this may result in the filling of loopholes in the prosecution case is purely a subsidiary factor. 9. In Murarilal v. State of M.P.6 the evidentiary value of the hand-writing expert was explained as under: "There is no rule of law, nor any rule of prudence which has crystalised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a I handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight." 10. From the law laid down in the above decisions, it is clear that the opinion of the handwriting expert is nothing but a piece of evidence and it is for the court to arrive its own decision on appreciation of the entire material available on record. 11. In the case on hand it is not in dispute that the plaintiff has already examined the attestor and the scribe of Ex.A-1, pronote. May be that the defendant raised an objection in the written statement that the suit pronote was a fabricated document, but he allowed the evidence to go on and moved the present application at the fag end of the proceedings. The learned counsel for the respondent submits that after the application was dismissed, the arguments were also heard and the judgment was reserved by the court below on 3-8-2004. 12. Having regard to the facts and circumstances and particularly keeping in view that the necessary evidence was already adduced by both the parties in support of their claims, the Court below in exercise of its discretion concluded that it is not necessary to send EX.A-1 pronote for experts opinion. 12. Having regard to the facts and circumstances and particularly keeping in view that the necessary evidence was already adduced by both the parties in support of their claims, the Court below in exercise of its discretion concluded that it is not necessary to send EX.A-1 pronote for experts opinion. Such discretion exercised by the Court below on appreciation of the evidence already adduced cannot be held to be perverse or vitiated on account of any extraneous considerations. 13. As noted above, the application for sending the disputed signatures to an expert for comparison with the admitted signatures cannot be ordered as a matter of course, but it has to be considered keeping in view the facts and circumstances of a particular case. Since such discretion was exercised by the Court below in a judicious manner, the impugned order in declining to send EX.A-1 pronote for opinion of handwriting expert cannot be said to be vitiated by any patent error of fact or law. The facts in the two decisions cited by the learned counsel for the petitioner in O. Bharathan and R.R. Raju cases (1 and 2 supra) are entirely different and therefore the ratio laid down therein cannot be extended to the case on hand. 14. For the aforesaid reasons, the interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India is not warranted. 15. In the result, the Civil Revision Petition is dismissed. No costs.