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2008 DIGILAW 435 (MAD)

S. M. Narasingam v. S. M. Sridharan

2008-02-06

N.PAUL VASANTHAKUMAR

body2008
Judgment : C.R.P.(PD)(MD) No.1460 of 2008 is filed challenging the order dated 25.2.2008 made in I.A.Ho.303 of 2007 in I.A.No.341 of 2006 in O.S.”No.394 of 2005 on the file of the I Additional Subordinate Judge, Madurai, wherein the prayer of the third defendant under Order 26 Rule 9 and Section 151 of CPC, for comparing the signatures in the admitted documents to decide the issues involved in the suit regarding the disputed signatures, was rejected. 2. C.R.P.(PD)(MD) No.2293 of 2008 is filed challenging the order made in I.A.No.962 of 2007 in I.A.No.491 of 2007 in O.S.No. 394 of 2005, wherein the prayer of the first defendant under Section 151 CPC, for appointing an Advocate Commissioner, in whose presence the examination of the disputed documents were sought to be made by the expert, was rejected. 3. The brief facts necessary for disposal of these revision petitions are that the first respondent in both the revision petitions filed the suit O.S.No.394 of 2035 praying for a decree declaring that the first respondent/plaintiff and the defendants are jointly entitled to the suit ‘A’ schedule well as co-owners and the third defendant is not having any independent right over the same and the suit well is intended for common use of the plaintiff and defendants and in consequence thereof to pass an order of permanent injunction restraining the defendants, their men and agents from in any way interfering with the peaceful possession and enjoyment of the plaintiff over the suit ‘A’ schedule well and also for permanent injunction restraining the defendants and their men and agents from in any way interfering with the peaceful possession and enjoyment of the plaintiff over the suit ‘B’ schedule property. In support of his contention, in the plaint, the plaintiff/first respondent herein filed a list of documents viz., lease agreement dated 15.8.1986, Sale Agreement dated 15.12.1985 etc. 4. In the written statement filed the first defendant/petitioner in C.R.P.(PD)(MD) No. 2293 of 2008 has taken a specific plea that the defendant never executed any lease agreement and was not at all a party to any such lease agreement dated 15.8.1986. He further contended that the sale agreement dated 15.12.1985 and the lease deed dated 15.8.1986 are nothing but fraudulent creations by the plaintiff by indulging in rank forgery. 5. He further contended that the sale agreement dated 15.12.1985 and the lease deed dated 15.8.1986 are nothing but fraudulent creations by the plaintiff by indulging in rank forgery. 5. On the basis of the above pleading, the first defendant/petitioner in C.R.P.(PD)(MD) No.2293 of 2008 filed I.A.No.491 of 2006 and the third defendant/petitioner in C.R.P.(PD)(MD) No.1460 of 2008 filed I.A.No.341 of 2006 seeking to appoint an advocate Commissioner for the purpose of sending the disputed documents for comparison and for a obtaining opinion from the Handwriting Expert. The Assistant Director (Documents), Forensic Science Department, Mylapore, Chennai-4, by letter dated 26.12.2006 stated that it is practically not possible to compare and scientifically examine the documents in the Court “to” find out the genuineness of the signatures. 6. Based on the letter of the Forensic Science Department referred above, the first defendant/petitioner in C.R.P.(PD)(MD) No. 2293 of 2008 filed I.A.No.962 of 2007 and the third defendant/petitioner in C.R.P.(PD)(MD) No.1460 of 2008 filed I.A.No.303 of 2007 and prayed for appointing an Advocate Commissioner for the purpose of sending the documents for comparison and for obtaining opinion from the Handwriting Expert. 13 documents were sought to be verified by the Handwriting Expert. 7. The said applications were rejected and permission was granted to invite the Hand Writing Expert to the Court in a working day and in the presence of the Sarishtadar, the expert was ordered to verify the signatures contained in the disputed documents. The request for sending the documents out of the Court for verification in the presence of the Advocate Commissioner was rejected. 8. The said orders are challenged in these revision petitions on the ground that the Assistant Director (Documents) Forensic Science Department Mylapore Chennai-4, through his letter dated 26.12.2006 having expressed his difficulties in examining the documents in the Court premises, the Court below ought to have granted permission to examine the documents in the presence of the Advocate Commissioner, since the Court below is satisfied with regard to the genuine request of the petitioners in seeking expert opinion as to the signatures contained in the documents, under Section 45 of the Indian Evidence Act. The Court below having entertained the request to examine the documents by the Handwriting Expert, it is always preferable to have the documents verified by the Government Forensic science Department, than a private Handwriting Expert. 9. The Court below having entertained the request to examine the documents by the Handwriting Expert, it is always preferable to have the documents verified by the Government Forensic science Department, than a private Handwriting Expert. 9. The issue as to whether the document which are in the Court can be sent out of the Court, particularly to the” State Forensic Science Department, Chennai-4, came up for consideration before this Court in the decision in Nagarathinammal v. K.V. Rengasary Chettiar (1975) Vol.88 L.W.71. The learned Judge distinguished the earlier judgment of this Court in T.A. Narasimhan v. Narayana Chettiar (1968) 2 MLJ 48 , wherein the practice of sending the original documents to the Handwriting Expert was ordered to be deprecated since in the said case the document was ordered to go out of the Court’s custody to a private expert. The learned Judge in Nagarathinammal v. K.V. Rengasamy Chettiar (supra) held that the document to be sent to a Government Expert viz., State Forensic Science Department, Madras, for opinion will not cause any harm. 11. In the decision in Doraiswamy Gounder v. Parayammal (1976) 1 MLJ 11 in paragraph 7 it held as follows at p.12 of MLJ: “7. The question for consideration is whether the document could be parted with in favour of a fingerprint expert, whether a private or a Government one. The decisions of Ramamurthy, J. and Ramanujam, J. which have been referred to are clear on the point that it is unsafe to part with the documents in the course of the trial. The learned Judges did not make any distinction between private and Government experts. It is true that Raghavan, J., has permitted the handing over of the documents to Government expert. I do not know the circumstances under which the learned Judge felt it possible to part with the document in favour of the Government expert. The consideration that weighs in not allowing the document to be handled by any other person is only for the purpose of ensuring the safety of the document or prevent its being tampered with. It will have to be considered if there will be no undue risk if the document is parted with in favour of a Government expert. As far as private experts are concerned, the decisions are uniform. It will have to be considered if there will be no undue risk if the document is parted with in favour of a Government expert. As far as private experts are concerned, the decisions are uniform. As far as Government expert is concerned unless it is not possible for the expert to examine the genuineness or otherwise of the endorsements without taking in from the custody of the Court, it would not be desirable to allow the document to be handled by him outside, the Court. I think that in the circumstances it is proper and desirable to have the endorsement examined by the Government expert, but he will do it in the presence of a Court official in the District Munsif’s Court, Salem. If he feels it necessary, he may be permitted to take photographic copies of the document…” (emphasis supplied) In Utham Prabhat Industries etc. v. P. Subramaniam, 1996 (1) LW 255 it is held that when the very examining the disputed document within the Court is not possible due to the genuine difficulties expressed by the expert, certainly the Court has to find out the alternate way for achieving the object for the purpose of doing justice. This Court further held that the documents can be handed over to the Advocate Commissioner appointed by the Court, in whose presence the disputed documents have to be examined by the handwriting Expert. The advocate Commissioner shall address the Director of Tamil Nadu Forensic Science Department, Madras-4, to fix a date and time for examination of the documents in his presence and after fixing the time, he shall receive the Court records either on the same day or one day in advance from the Court. The Advocate Commissioner shall deliver the documents, which are in sealed cover given by the Court and the department can verify the documents in the presence of the Advocate Commissioner. The said procedure is directed to be followed when the expert expressed his inability to verify the disputed documents within the Court premises. 11. This Court in the decision reported in N. Chinnasamy v. P.S. Swaminathan 2006 (4) CTC 850 following principles for verification of the documents by the Court as well as by the experts: (1) Sections 73 of the Indian Evidence Act authorises the Court to compare the disputed signature with the admitted signature in order to come to its own conclusion. This Court in the decision reported in N. Chinnasamy v. P.S. Swaminathan 2006 (4) CTC 850 following principles for verification of the documents by the Court as well as by the experts: (1) Sections 73 of the Indian Evidence Act authorises the Court to compare the disputed signature with the admitted signature in order to come to its own conclusion. (2) It is always safe for the Court to take the aid of handwriting expert to have the expertise to scientifically compare such handwriting with reasons. (3) The practice of sending original documents in the custody of the Courts to the handwriting experts is a highly objectionable one and a very bad procedure. (4) The proper procedure would be to permit the handwriting expert to inspect the document in the Court premises itself in the presence of some responsible officers of the Court. (5) If necessary, the expert may be permitted to have photographic copies of documents in the presence of the responsible officers of the Court. (6) When examination of the disputed documents within the Court’s premises is not possible due to genuine difficulties expressed by the expert, the Court has to find out the alternative way of achieving the object for the purpose of doing justice. (7) In such circumstances as mentioned above, the Application has to be treated as an Application for an appointment of the commissioner in whose presence the examination of the disputed document has to be conducted by the expert. (8) When the investigation cannot be conveniently conducted within the premises of the Court and the same has to be carried out in the laboratory of the Forensic Department of the Government of Tamil Nadu it is necessary to appoint a commissioner to conduct the investigation of the document in his presence. (9) Filing Application for examination of documents by handwriting expert at a late stage thereby protracting and holding up the proceedings is highly objectionable. (10) Merely because of the reasons that the Trial Court has by itself compared the admitted signature and the disputed signature invoking Section 73 of the Indian Evidence Act there is no bar or ban for the First Appellate Court for sending the documents to get the expert opinion. (11) Expert opinions could give much more clarity for arriving at a decision upon the truth and genuineness of a disputed document. (11) Expert opinions could give much more clarity for arriving at a decision upon the truth and genuineness of a disputed document. (12) When the defendant denies the signature in a particular document which is very much relied on by the plaintiff, it is for the plaintiff to take steps for examination of the disputed signature by sending the document to a handwriting expert. 12. In the decision in Damara Venkata Murali Krishna Rao v. Gurujupalli Satvathamma 2008 AIR SCW 6507 (2009) 1 MLJ 1359, the Honourable Supreme Court allowed the prayer for sending the documents to Government Expert for comparison of signatures appearing in the receipts with the admitted signatures, by setting aside the order dismissing interlocutory application, which was confirmed by the High Court. 13. Thus, it is evident that when examination of the disputed documents within the Court premises is not possible due to genuine difficulties expressed by the expert, the Court has to find out the alternate way of achieving the object for the purpose of doing justice and in such circumstance, the application has to be treated as an application for appointment of Commissioner, in whose presence the examination of the disputed documents has to be made by the expert. It is also made clear in that judgment that an investigation has to be made by the expert in the presence of the Commissioner, appointed by the Court. 14. In this case, the Court felt that the documents are to be verified by a Handwriting expert. In letter dated 26.12.2006, the Government Forensic Science Department expressed its inability to compare and scientifically examine the documents in the Court to find out the genuineness of the signatures. The Court is also bound to do justice to the parties, which can be achieved only on verification of the signatures by the handwriting Expert. Thus, the reason given by the Court below that on any circumstance the documents cannot be sent out of the Court, is unsustainable. The Court below ought to have appointed an Advocate Commissioner to get the documents from the Court and ought to have directed the Government Handwriting Expert to verify the same in the presence of an advocate Commissioner. 15. The Court below ought to have appointed an Advocate Commissioner to get the documents from the Court and ought to have directed the Government Handwriting Expert to verify the same in the presence of an advocate Commissioner. 15. In the light of the above findings and decisions empowering the Court to appoint an Advocate Commissioner, in whose presence investigation is to be made by the Handwriting Expert, I am of the view that in this case the documents ordered to be verified by the handwriting Expert can also be verified by the Forensic Science Department, for which an Advocate Commissioner has to be appointed. On appointment, the advocate Commissioner, after getting the date and time from the Department for examination of the disputed documents, can receive the disputed documents under acknowledgement, in a sealed cover, and present the same to the Handwriting Expert of the Forensic Science Department, Mylapore, Chennai-4, and the signatures are to be verified by the Expert, in the presence of the Advocate Commissioner for doing justice in this case. 16. In view of the above findings as stated supra, I hold, the orders passed by the Court below in directing the documents to be verified by a private Handwriting Expert is unsustainable and the said orders are set aside. Consequently, I.A.Nos.303 of 2007 and 962 of 2007 In O.S.No.394 of 2005, on the file of the I Additional Sub Court, Madurai, are allowed as indicated above. The revision petitions are allowed accordingly. No costs. Connected miscellaneous petitions are closed.