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2010 DIGILAW 489 (KAR)

B. Nagarajappa v. Boramma

2010-04-06

V.JAGANNATHAN

body2010
JUDGMENT : This appeal is by the plaintiff in O.S. No. 10 of 2007 and the grievance of the plaintiff is that the First Appellate Court while disposing of the appeal preferred by the defendant set aside the judgment of the Trial Court and remanded the case for fresh consideration. Aggrieved by the remand order, this appeal is preferred. 2. Sri B.L. Kumar, learned Counsel for the appellant submits that the suit was filed by the appellant basing on an ‘on demand promissory note’ executed by the defendants’ father (later Jogaiah) on 18-1-2004 and the said document was executed in connection with Jogaiah having received a loan of Rs. 50,000/- from the plaintiff for the purpose of his family necessity. The Trial Court decreed the suit of the plaintiff and accepted Exhibit P. 1, the ‘on demand promissory note’. Whereas, the Appellate Court while allowing the appeal filed by the defendants set aside the Trial Court’s judgment and remanded the matter to the Trial Court, as the First Appellate Court found that the signature on Exhibit P. 1 having been disputed by the defendants, the Trial Court ought to have referred the said document to an expert for his opinion and the Trial Court should not have taken itself the role of an expert. This reasoning of the First Appellate Court is erroneous and therefore the remand of the matter to the Trial Court was uncalled for. 3. On the other hand, Sri R.V. Jayaprakash, learned Counsel appearing for the respondents-defendants relying on the Apex Court’s decisions in State (Delhi Administration) v Pali Ram AIR 1979 SC 14 : (1979) 2 SCC 158 : 1979 Cri. L.J. 17 (SC) and O. Bharathan v K. Sudhakaran and Another AIR 1996 SC 1140 (1996) 2 SCC 704 , contended that it was for the handwriting expert to give opinion and the Court though is not barred from comparing the signatures, yet, as a matter of caution the Court ought to have sought the expert’s opinion in regard to the disputed signatures. Therefore, relying on the aforesaid decisions, the submission made by the learned Counsel is that the order of remand passed by the First Appellate Court is just and proper and even the First Appellate Court has observed that the signatures on Exhibit P. 1 and the admitted signatures do not tally with each other. Therefore, relying on the aforesaid decisions, the submission made by the learned Counsel is that the order of remand passed by the First Appellate Court is just and proper and even the First Appellate Court has observed that the signatures on Exhibit P. 1 and the admitted signatures do not tally with each other. Moreover, the Trial Court has accepted the signature on Exhibit P. 1 as that of Jogaiah and the Trial Court has gone on to compare very minutely the admitted signature as well as the disputed one and in the course of its order at paragraph 12, the Trial Court has made the following observations: “12. ….. I have compared with the aforesaid documents. On going through the signatures one will find the strokes, curves and gaps in Ex. P. 1(a) resemble with that of the aforesaid admitted signatures of deceased Jogaiah. One cannot find the difficulty in arriving at the conclusion that the disputed signature at Ex. P. 1 (a) and the admitted signatures in documents at Exs. D. 1 to D. 7 are similar alike and thus in my considered opinion they are that of one and the same person”. 4. Whether the Trial Court could have done this exercise is the point for consideration. The Apex Court in the case of State (Delhi Administration), has observed thus: “29. The matter can be viewed from another angle, also 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 which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other, and the prudent course is to obtain the opinion and assistance of an expert”. 5. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other, and the prudent course is to obtain the opinion and assistance of an expert”. 5. In an other decision in the case of O. Bharathan, referring to the aforesaid decision in Palik Ram’s case, the Apex Court has observed that, though it is the province of the expert to act as Judge or jury after a scientific comparison of the disputed signatures with admitted signatures, the caution administered by this Court (Supreme Court) is to the course to be adopted in such situations could not have been ignored unmindful of the serious repercussions arising out o the decision to be ultimately rendered. Further, at paragraph 21 of the said decision it went on to hold that the necessity for adhering to the said sound advise and guidance is all the more necessary in a case where hundreds of signatures are disputed and the striking dissimilarities noticed by the Court at the time of trial of the election petition. 6. Though we are dealing with the based on the promissory note, the very fact that the First Appellate Court records a finding that the signatures do not tally and the Trial Court on the other hand goes on to hold that the signatures do tally after comparing the signatures with reference to the strokes, curves and gaps, in my view, the First Appellate Court was justified in remanding the matter to the Trial Court, particularly, in the light of the aforesaid law laid down by the Apex Court. I therefore see no error being committed by the First Appellate Court in remanding the matter for referring the disputed signatures for an expert’s opinion. The appeal lacks merit and the same is hereby dismissed.