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Andhra High Court · body

2010 DIGILAW 1218 (AP)

M. Satyanarayana v. P. Indira

2010-12-03

V.ESWARAIAH

body2010
Judgment : The petitioner is the defendant in the suit O.S No. 67 of 1998 filed by the respondent – plaintiff on the file of the Additional Senior Civil Judge (Fast Track Court), Anakapalle for recovery of a sum of Rs.1,34,993.80 ps based on a promissory note Ex.A-1 dated 03-12-1995. The petitioner filed written statement taking a plea that the suit pronote is a rank forgery and the signature contained on Ex.A-1 is not of him. Earlier, he filed an application in I.A No. 183 of 1999 for sending Ex. Ex.A-1 to Hand Writing Expert to compare the signature on Ex.A-1 with that of his signatures taken in the open Court on 31-10-2001. It appears, the Court below allowed the said application and the pronote was sent to the Hand Writing Expert for comparison of the signature on Ex.A-1 pronote with the specimen signatures taken in the open Court on 31-10-2001. It is stated that the expert submitted a report opining that the signatures taken in the open Court are not tallying with the signature on Ex.A-1 pronote. Therefore, the petitioner filed I.A No. 133 of 2005 under Order XVI Rules 1 to 5 CPC to summon the expert to give evidence on his opinion and the same was opposed by the respondent stating that the signature of the petitioner on Ex.A-1 dated 03-12-1995 with the specimen signatures obtained in the open Court on 31-10-2001 nearly after six years, cannot be compared as they are not contemporaneous signatures and there is every possibility of the petitioner to disguise specimen signatures taken in the open Court. Hence, the report has no evidentiary value and as such, there is no need to summon the expert to give evidence. The Court below by the impugned order dated 24-03-2008 while rejecting the contention of the petitioner for summoning expert observed that the report of an expert or opinion of an expert is part of the record and that can be relied upon and taken into consideration basing on other circumstances and the material on record and accordingly dismissed the application. Hence, the revision. Heard the learned counsel for the petitioner. Hence, the revision. Heard the learned counsel for the petitioner. There may not be any justification on the part of the Court below in rejecting the application of the petitioner for summoning the expert for giving evidence, but the question that arises for consideration is as to whether the petitioner – defendant can be permitted to get the opinion of the expert by comparing the signature on Ex.A-1 pronote dated 03-12-1995 with that of the signatures taken in the open Court on 31-10-2001? I am of the opinion that insofar as negotiable instruments/promissory note is concerned, to rebut the presumptions available in favour of the plaintiff, it is open for the defendant to adduce oral and documentary evidence. Unless the general presumptions available under Section 118 of the Negotiable Instruments Act, 1881 in favour of the plaintiff are rebutted by adducing appropriate evidence as to whether the pronote was executed or not for consideration on the date and place, it may not be just and proper to send the pronote for comparison of the signature on Ex.A-1 with that of the signatures taken in the open Court. The comparison of the signatures can be with that of the signatures admitted by the respondent. Therefore, I am of the opinion that the respondent has rightly taken a plea that the signatures taken in the open Court on 30-10-2001 and the signature on the pronote dated 03-12-1995 are not contemporaneous and it cannot be said that the signature taken in the open Court of the petitioner is his admitted signature by the respondent. Therefore, when the earlier order itself is illegal and untenable though there is justification on the part of the petitioner in seeking to summon the expert and if the I.A is allowed, it amounts to restoring an illegal order. Therefore, I am not inclined to allow the revision. The civil revision petition is without any merit and it is accordingly dismissed.