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2013 DIGILAW 763 (AP)

Anapalli Bhaskar v. Gudi Venkateswarlu

2013-09-16

SANJAY KUMAR

body2013
Judgment : 1. C.R.P.No.6291 of 2012 was allowed by a learned Judge of this Court, since retired. The respondents in the CRP seek review of the said order. 2. The petitioners in the C.R.P. are the defendants in O.S.No.744 of 2007 on the file of the learned I Additional Senior Civil Judge, Nellore. The respondents in the CRP, the review petitioners, are the plaintiffs therein. This suit was instituted seeking cancellation of three sale deeds dated 13.08.1990 said to have been executed by late Anapalli Vandanam and late Rondla Ademma. The case of the plaintiffs is that they are the legal heirs of Anapalli Vandanam and Rondla Ademma and that the defendants had forged their thumb impressions in the three sale deeds and got them registered. 3. After closure of their evidence, the plaintiffs filed I.A.No.718 of 2012 in the suit to reopen the case. This I.A. was dismissed by the trial Court and C.R.P.No.4911 of 2012 was filed before this Court assailing the same. By order dated 01.10.2012, this Court held that a reasonable opportunity should be granted to the plaintiffs to let in their whole evidence and the trial Court was directed to accord them an opportunity to do so. 4. Thereupon, having got two bank documents marked in evidence as Exs.A.11 and 12 through the bank manager concerned, the plaintiffs filed I.A.No.1184 of 2012 under Section 45 of the Indian Evidence Act, 1872 (for brevity, ‘the Act of 1872’) read with Section 151 C.P.C to send the disputed sale deeds for expert opinion as to the thumb impressions therein in comparison with those affixed by Anapalli Vandanam and Rondla Ademma in the bank documents, Exs.A.11 and 12. By order dated 03.12.2012, the trial Court allowed the I.A and directed the documents to be forwarded to the finger print expert for obtaining an opinion. This order was called in question in the present C.R.P.No.6291 of 2012 by the defendants. 5. The plea of the defendants was that they disputed the thumb impressions alleged to have been affixed by Anapalli Vandanam and Rondla Ademma in the bank documents, Exs.A.11 and 12, and that the same could not therefore be the basis for comparison and verification of the thumb impressions in the disputed sale deeds. 5. The plea of the defendants was that they disputed the thumb impressions alleged to have been affixed by Anapalli Vandanam and Rondla Ademma in the bank documents, Exs.A.11 and 12, and that the same could not therefore be the basis for comparison and verification of the thumb impressions in the disputed sale deeds. Accepting this contention, the learned Judge opined that merely because Exs.A.11 and 12 were bank documents it would not mean that Anapalli Vandanam and Rondla Ademma executed those documents in connection with bank transactions. The learned Judge concluded that unless there was certainty or there was no ambiguity, no useful purpose would be served by sending Exs.A.11 and 12 along with the disputed sale deeds to an expert for comparison and report. The learned judge observed that instead of proving these thumb impressions it would be proper to establish the thumb impressions in the disputed sale deeds by examining the concerned attestors, scribe or any other witness/witnesses. The learned Judge held that the trial Court allowed the I.A. without basis and on unsustainable surmises. Holding so, the learned Judge allowed the C.R.P. and set aside the order passed by the trial Court. Hence, this review petition. 6. Heard Sri K.S. Gopala Krishnan, learned counsel appearing for Sri T.C. Krishnan, learned counsel for the review petitioners/plaintiffs, and Sri Karra Srinivas, learned counsel for the respondents/defendants. 7. Section 4 of the Banker’s Books Evidence Act, 1891 (for brevity, ‘the Act of 1891’) is relied upon by the review petitioners/plaintiffs. This Section relates to the mode of proof of entries in banker’s books and reads as under: “4. Mode of proof of entries in banker’s books.-- Subject to the provisions of this Act, a certified copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise.” 8. Under the above provision a presumption as to the genuineness of the matter/transaction/account recorded in an entry in the banker’s books would arise upon a certified copy of such entry being adduced as prima facie evidence of the existence of such entry. Under the above provision a presumption as to the genuineness of the matter/transaction/account recorded in an entry in the banker’s books would arise upon a certified copy of such entry being adduced as prima facie evidence of the existence of such entry. This presumption, as is clear from the provision, would apply to all legal proceedings. A ‘Legal Proceeding’ is defined under Section 2(4) of the Act of 1891 in the widest possible terms to include, amongst others, any proceeding or enquiry in which evidence is or may be given. 9. Banker’s Books, under Section 2(3) of the Act of 1891, are defined as under: (3) “bankers’ books” include ledgers, day-books, cash-books, account-books and all other records used in the ordinary business of the bank, whether these records are kept in written form or stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism, either onsite or at any offsite location including a back-up or disaster recovery site or both; Thus, any record maintained of its ordinary business by the bank in the written form or on micro film etc., would fall within the ambit of this definition. 10. Ex.A.11 is the certified copy of a proforma obtained by the Vavveru Cooperative Rural Bank Limited from Rondla Ademma wherein she declared that the bank rules had been read by her and that she accepted it as being binding upon her. This declaration was executed on 22.04.1993 and bore her left thumb impression. Again, in the column specified for specimen signatures, a thumb impression with the endorsement ‘LTI of Rondla Ademma’ is found. Ex.A12 is the proforma ‘Declaration creating charge’ obtained by the Vavveru Cooperative Rural Bank Limited from Anapalli Vandanam, wherein he admitted his membership in the Bank and created a charge on his property towards securing a loan. The schedule in this proforma, bearing the details of the land mortgaged, is appended with a thumb impression with the inscription ‘LTI of Anapalli Vandanam’. The second page of this proforma again bears a thumb impression with the endorsement ‘LTI of Anapalli Vandanam’. 11. These documents, being a record of the bank’s usual and ordinary business transactions, fall squarely within the ambit of banker’s documents as defined in Section 2 (3) of the Act of 1891. The second page of this proforma again bears a thumb impression with the endorsement ‘LTI of Anapalli Vandanam’. 11. These documents, being a record of the bank’s usual and ordinary business transactions, fall squarely within the ambit of banker’s documents as defined in Section 2 (3) of the Act of 1891. In terms of Section 4 of the said Act, a presumption therefore attaches to the certified copies of these documents as prima facie evidence of the transactions recorded therein. 12. Even under general law, a special status attaches to bank documents. Section 74 of the Act of 1872 defines ‘public documents’. Documents forming the acts or records of the acts of, amongst others, public officers are included in this definition. As long back as in the year 1904, a learned Judge of the Calcutta High Court in CHANDI CHARAN DHAR V/s. BOISTAB CHARAN DHAR (1904) ILR Cal 284) held that a loan register maintained by a bank is a public document within the meaning of Section 74 of the Act of 1872. Section 76 of the Act of 1872 provides that certified copies of such public documents can be proved by the officer having custody thereof. In the present case, Exs.A.11 and 12 were produced from proper custody and were marked in evidence upon examination of the bank officer concerned. Section 77 of the Act of 1872 provides that such certified copies may be received as proof of the contents of the public documents of which they purport to be copies. Section 79 of the Act of 1872 attaches a presumption as to genuineness of the certified copies of public documents admissible as evidence. 13. Sri Karra Srinivas, learned counsel for the respondents/defendants, would however contend that his clients deny that Anapalli Vandanam and Rondla Ademma executed Exs.A.11 and 12 and affixed their thumb impressions therein. But once a presumption of genuineness attaches to the transactions recorded in Exs.A.11 and 12, they cannot be partly accepted and then doubted in part owing to a mere denial that the documents were not entered into by the persons who allegedly executed them. Once the document records that the transaction reflected therein was between the bank and the person who affixed his/her thumb impression, prima facie, a presumption would operate to the effect that the thumb impression was that of the person who allegedly entered into the transaction. Once the document records that the transaction reflected therein was between the bank and the person who affixed his/her thumb impression, prima facie, a presumption would operate to the effect that the thumb impression was that of the person who allegedly entered into the transaction. This presumption however, as is clear from Section 4 of the Act of 1891, would be a rebuttable one. It is for the respondents/defendants to adduce necessary evidence to rebut this presumption but at the outset, the thumb impressions in these bank documents cannot be discarded on the bald assertion of the defendants that they disputed the genuineness thereof. The presumption arising in law would negate such a claim. 14. Expert evidence on fingerprint verification would invariably rank higher than that on signature comparison as fingerprints would not be subject to the vagaries and inconsistencies inherent to signatures. In this regard, it may be noticed that in SUNIL CHOWDHURY V/s. ARUP KUMAR GHOSH (AIR 2006 CALCUTTA 109), aDivision Bench of the Calcutta High Court observed that the opinion of a handwriting expert, unlike that of a finger print expert, is generally of a frail character and that its fallibilities had been quite often noticed. 15. In so far as comparison of fingerprints by the Court is concerned the Supreme Court, in THIRUVENGADAM PILLAI V/s. NAVANEETHAMMAL (2008) 4 SCC 530 ), observed as under: “16.While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/ signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert’s opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal.” 16. By and large, it would be advisable that the Court seek assistance of an expert under Section 45 of the Act of 1872 for examining finger prints as the same involves a scientific study and forensic analysis which the Court would be incapable of undertaking independently. On the same lines, a learned Judge of this Court, in CHITYALGUNDAMEEDE RAMALAKSHMAMMA V/s. EDIGA RANGAMMA (DIED) PER L.RS ( 2012 (6) ALT 539 ), observed that it would not be possible for the Court to undertake comparison of thumb impressions and it would be appropriate in the interest of justice to permit a party to substantiate his/her case by securing the opinion of a forensic expert. 17. The next issue is whether this Court should exercise review jurisdiction in the matter. The scope of a review under Section 114 C.P.C read with Order 47 Rule 1 C.P.C fell for consideration before the Supreme Court in PARSION DEVI V/s. SUMITRI DEVI (1997) 8 SCC 715 ). The Supreme Court observed that a judgment may be open to review, inter alia, if there is an error apparent on the face of the record; such an error being self-evident and not requiring a process of reasoning to detect it. The Supreme Court pointed out that review jurisdiction would not be applicable to an ‘erroneous decision’ which needed rehearing and correction and cautioned that a review petition could not be allowed to be an appeal in disguise. 18. Keeping a clear distinction between an ‘error apparent on the face of the record’ and an ‘erroneous decision’ would thus be essential while exercising review jurisdiction. 18. Keeping a clear distinction between an ‘error apparent on the face of the record’ and an ‘erroneous decision’ would thus be essential while exercising review jurisdiction. The learned Judge, while allowing the C.R.P., did not consider the import and impact of the presumption in law which attached to the bank documents, Exs.A.11 and 12, with which the thumb impressions in the disputed documents were sought to be compared. Consequently, it was not a case where the request for examination by an expert could be rejected at the threshold on the ground that the opposite party disputed the genuineness of the thumb impressions in the bank documents. No doubt, the presumption which attaches to these documents is not absolute and it would be open to the opposite party to dislodge such presumption by adducing evidence to the contrary. However, such a party cannot shut out examination of these documents by an expert by a bald assertion that it disputed the genuineness thereof. This Court therefore finds that the order under review reflected an error apparent. 19. The order passed by the Court below was therefore just and valid in law and did not brook interference. The order dated 28.01.2013 holding to the contrary and allowing the C.R.P. is accordingly set aside. Review CRP MP No.1362 of 20013 is allowed and the Civil Revision Petition is dismissed. No order as to costs.