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2011 DIGILAW 3 (SIK)

Namtey Lepcha v. Chandra Kumar Sharma

2011-08-12

S.P.WANGDI

body2011
JUDGMENT (1) By filing this petition, the petitioner seeks to assail the order of the learned Judicial Magistrate, East Sikkim at Gangtok, dated 22-12-2010, in Criminal Case No. 10 of 2009, by which an application filed by the petitioner under Section 45 read with Sections 67 and 73 of the Evidence Act, 1872 was rejected. (2) The petitioner states that the allegation against him in the criminal case before the learned Judicial Magistrate is that the sale deed and money receipt executed by him in respect of a land situated at Ranipool in favour of the respondent is fraudulent, as it is the very same property which had been sold by him earlier to some other persons also. Mrs. L. Chakraborty. learned counsel appearing on behalf of the petitioner, submits that it has been the case of the petitioner all through that the documents alleged to be the sale deed and the money receipt said to be executed by him were not signed by him and that the signature appearing in those documents were forged. It is further submitted that by the application dated 20-12-2010, the petitioner had prayed forwarding the questioned documents for the opinion of the hand writing expert under Section 45 of the Evidence Act, for the purpose of which 4 documents had been requested to be considered as he did not possess any other documents contemporaneous to the questioned documents. (3) Mr. Ajay Rathi, the learned counsel appearing on behalf of the respondent, submits that having regard to the fact that the respondent has already led evidence and proved the signature appearing in the questioned documents as his, it would not now be permissible in law to send the documents for examination under Section 45 of the Evidence Act in view of the provisions of Sections 47 and 67. (4) Mrs. L. Chakraborty, on the other hand, submits that the petitioner also has adduced evidence by producing witnesses and have proved that the petitioner had not appended the signatures appearing on the questioned documents. It is her submission that considering the overall circumstances, the learned trial Court ought to have allowed the petition and sent the documents for the opinion of the hand writing expert as prayed for. She placed reliance upon the decision in the case of Gaudiya Mission v. Shobha Bose, AIR 2008 SC 1012. It is her submission that considering the overall circumstances, the learned trial Court ought to have allowed the petition and sent the documents for the opinion of the hand writing expert as prayed for. She placed reliance upon the decision in the case of Gaudiya Mission v. Shobha Bose, AIR 2008 SC 1012. I have considered the rival contentions of the parties and have perused the impugned order of the learned Judicial Magistrate. It appears that the learned Judicial Magistrate has rejected the application principally on the ground that the petitioner was unable to produce documents contemporaneous to the questioned documents, and that no useful purpose would be served to compare the signatures appearing in the said documents made more than 3 years earlier to the disputed documents, considering the possibility of the respondent disguising his style of signature/writings so as to make them dissimilar with the disputed signature/writings. The decision of Smt. Renu Devi Kedia v. Smt. Seetha Devi, AIR 2005 AP 180 and Vadrevu Annapurnamma v. Vadrevu Bhima Shankararao, AIR 1970 AP 359 were cited by him to arrive at his decision. (5) In my view, the approach of the learned Judicial Magistrate has not been correct. Under the Evidence Act, two direct methods of proving hand writing of a person have been provided i.e. (i) by an admission of a person who wrote the document and (ii) by the evidence of some witness who saw it being written by that person. Besides this, there are other methods of proving hand writing. They are provided under Section 45 of the Evidence Act, i.e. reference to the hand writing expert for his opinion; by the evidence of a person who is said to have written in the document disputing the hand writing under Section 47 and, by opinion formed by the Court itself on the examination and perusing of the hand writing and the signature with the admitted or specimen writings under Section 73 of the Evidence Act. The decisions relied upon by the learned Judicial Magistrate cannot be treated as a ratio governing the question as they are neither supported by any authoritative decision of the Supreme Court nor by any law providing specifically therefor. The decisions relied upon by the learned Judicial Magistrate cannot be treated as a ratio governing the question as they are neither supported by any authoritative decision of the Supreme Court nor by any law providing specifically therefor. The Evidence Act does not provide that there ought to be documents containing signature and handwriting contemporaneous to those appearing in the questioned documents for being referred to the handwriting expert for his opinion. These are things which are required to be considered on the facts and circumstances of each case. (6) I find that even factually the learned Judicial Magistrate has committed an error in arriving at his opinion that there are no documents contemporaneous to the ones being sought for to be sent to the hand writing expert for his opinion which is quite apparent from the very documents referred to by the petitioner in his application dated 20-12- 2010. The documents which had been enumerated in the application are as follows :- "i) Original Certificate of identification of the son of the accused person viz., Kunzang Lepcha, bearing No. 0176/DC(N) dated 2- 2-2002, issued by the District Collectorate, North Sikkim, Mangan. (This document pertains to the year 2002 and bears admitted signature of the accused). ii) Original Certificate of identification of the wife of the accused person viz. Smt. Ribjey Lepcha, bearing No. 0173/DC(N) dated 2-2-2002, issued by the District Collectorate, North Sikkim, Mangan. (This documents pertains to the year 2002 and bears admitted signature of the accused) iii) Original Driving Licence of the accused person bearing Licence No. R/2477/ 09/Gtk dated 4-12-2008 and bears admitted signature of the accused. iv) Original Bank Pass Book of the State Bank of Sikkim, Mangan Branch and bears admitted signature of the accused." The first and the second documents are of the year 2002 and are documents which are certificates issued by the competent authorities. The third document is of the year 2008. The questioned documents obviously are of the year 2005 as it appears from Annexures 2 and 3 to the petition. (7) From the above, it can be clearly seen that the first two documents are about three years earlier than the questioned documents and the third document is of three years later. The third document is of the year 2008. The questioned documents obviously are of the year 2005 as it appears from Annexures 2 and 3 to the petition. (7) From the above, it can be clearly seen that the first two documents are about three years earlier than the questioned documents and the third document is of three years later. The word "contemporaneous" does not mean a period which would be reliable directly to the year, month and the date when the questioned documents were executed but, a period that would be in close proximity of the time of execution of those documents. The word has been defined as an adjective under the Oxford Dictionary to mean "Belonging to the same time". (8) Considering the facts of the present case, two years or three years earlier or after the dates of the questioned documents would, in my view, be a period contemporaneous to the questioned documents. The question of the petitioner manipulating the handwriting to differ with the ones in the questioned documents would not arise in view of the fact that the two documents were earlier to the questioned documents and the third one after. Even otherwise, the two decisions of the Andhra Pradesh High Court have been differed in a later decision of that Court in the case of Velaga Sivarama Krishna v. Velaga Veerabhadra Rao, AIR 2009 AP 47, where it has been held by a Bench of that very High Court that those decisions are not to be treated as laying down the ratio governing that question. Upon consideration of the various decisions of the Hon'ble Supreme Court, the Court held as follows :- "7. Whenever a party disputes the signature on a particular document, two remedies are open to him, either to request the Court to compare the signatures or to file an Application to send the document to the expert for comparison. When the petitioner opted to file an Application to send the document to the handwriting expert, no prejudice will be caused to either party. When he is asserting that the signature is that of the said party, even though there is a gap between the disputed signatures and admitted signatures, a science has been developed to compare such signatures also by taking into consideration the direction of the strokes, the speed of writing, the pattern of writing etc. When he is asserting that the signature is that of the said party, even though there is a gap between the disputed signatures and admitted signatures, a science has been developed to compare such signatures also by taking into consideration the direction of the strokes, the speed of writing, the pattern of writing etc. therefore, it cannot be said that no useful purpose will be served by sending the document to the expert. After comparison, if the similarities of the disputed signature and the admitted signatures are very negligible, then the Court can formulates its opinion with the assistance of the expert's report and by comparing the signatures whether the report has to be accepted or not. But, if the opportunity is denied to the defendant and if the matter is carried to the Appellate Court, there is every likelihood of commenting that he did not avail the opportunity of filing an Application for sending the document for handwriting expert's opinion, if he is so sure that the disputed signature does not belong to him." I am inclined to concur with the above views for the very same reason. Mr. Rathi's submission that Section 47 of the Evidence Act read with Sections 45 and 67 of the Evidence Act clearly bars the permissibility of the documents being sent for the opinion of the handwriting expert, in my view, is erroneous and is accordingly rejected. (9) In view of the above, the impugned order passed by the learned Judicial Magistrate is set aside and consequently this petition stands allowed. Needless to state that the observations made in this order shall not be construed an opinion of this Court on the merits of the case pending before the learned trial Court. No order as to costs. Petition allowed.