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2018 DIGILAW 154 (ORI)

M. A. Alim v. Raghunath Sahu

2018-02-05

A.K.RATH

body2018
JUDGMENT : A.K.RATH, J This appeal is by the plaintiff. The suit was for realisation of an amount of Rs.13,600/-from the defendant. 2. The case of the plaintiff was that on 08.02.1984 Raghunath Sahu-defendant had borrowed a sum of Rs.10,000/-from him for the marriage of his daughter. He promised to return the said amount by 22.02.1984. He executed a receipt vide Ext.1 in favour of the plaintiff as a collateral security. The defendant did not return the said amount in spite of the repeated requests. 3. The defendant entered contest and filed a written statement denying the assertions made in the plaint. According to him, he has already repaid the loan amount to the plaintiff on 30.08.85 in presence of Rabinarayana Behera and B. Jogulu. The plaintiff had granted a receipt to him acknowledging receipt of Rs.10,000/-. He is not liable to pay any amount to the plaintiff. 4. On the inter se pleadings of the parties, learned trial court struck four issues. Parties led evidence, both oral and documentary, to substantiate their cases. Learned trial court came to hold that the defendant had borrowed a sum of Rs.10,000/-from the plaintiff on 08.02.84 and executed the receipt vide Ext.1 in favour of the plaintiff. The defendant repaid the loan amount of Rs.10,000/-to the plaintiff on 30.08.85 in the presence of Rabinarayan Behera and B.Jogulu. The plaintiff had granted a receipt vide Ext.A to the defendant acknowledging the receipt of the loan amount. Held so, it dismissed the suit. The plaintiff filed Money Appeal No. 3/92 before the learned District Judge, Berhampur, Ganjam, which was subsequently transferred to the court of learned 1st Additional District Judge, Berhampur, Ganjam and re-numbered as Money Appeal No. 3/92 (Money Appeal No. 6/91 GDC). The appeal was eventually dismissed. 5. The appeal was admitted on the following substantial question of law:- “Whether a Court can assume the role of a handwriting expert and give its opinion on the disputed signature appearing in a document vide Ext.A ?” 6. Heard Mr. Debasis Pattnaik, learned Advocate on behalf of Mr. M.R. Mohanty, learned Advocate for the appellant. None appears for the respondent. 7. Mr. Pattnaik, learned counsel for the appellant submits that the defendant has admitted that he had taken a sum of Rs.10,000/-from the plaintiff. He has not repaid the same. Heard Mr. Debasis Pattnaik, learned Advocate on behalf of Mr. M.R. Mohanty, learned Advocate for the appellant. None appears for the respondent. 7. Mr. Pattnaik, learned counsel for the appellant submits that the defendant has admitted that he had taken a sum of Rs.10,000/-from the plaintiff. He has not repaid the same. The plaintiff filed an application before the learned trial court to send the signature appearing in Ext.A to a handwriting expert. The same was rejected by the learned trial court on the ground that the application was filed after closure of evidence of the plaintiff. The learned trial court compared the signature of the plaintiff appearing in Ext.A with the plaint and Vakalatnama. The learned trial court cannot assume the role of a handwriting expert and render a finding. Learned appellate court did not delve into the same and confirmed the findings of the learned trial court. He further submits that the delay in filing the application for sending the disputed signature to a handwriting expert is per se no ground to reject the same. To buttress his submission, he relies on the decisions of the apex Court and this Court in the case of Ajay Kumar Parmar vs State Of Rajasthan, AIR 2013 SC 633 and Gujju Saraswati @ G. Saraswati and another v. G. Ram Prasad and others, 2017 (I) CLR 755 respectively. 8. In State of Maharashtra v. Sukhadeo Singh, AIR 1992 SC 2100 , the apex Court held:- “30. xxx xxx xxx What emerges from the case law referred to above is that handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of fingerprints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the Court has to decide in each case of its own merits what weight it should attach to the opinion of the expert. 32. xxx xxx xxx There is no doubt that the said provision empowers the court to see for itself whether on a comparison of the two sets of writing/signature, it can safely be concluded with the assistance of the expert opinion that the disputed writings are in the handwriting of the accused as alleged. For this purpose we were shown the enlarged copies of the two sets of writings but we are afraid we did not consider it advisable to venture a conclusion based on such comparison having regard to the state of evidence on record in regard to the specimen/admitted writings of the accused Nos.1 and 2. Although the section specifically empowers the court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. We have already pointed out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. We have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings.” 9. On a survey of earlier decisions, the apex Court in Ajay Kumar Parmar (supra) held: “23. We have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings.” 9. On a survey of earlier decisions, the apex Court in Ajay Kumar Parmar (supra) held: “23. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the Court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the Court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the Court may also not be conclusive. Therefore, when the Court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the Court must keep in mind the risk involved, as the opinion formed by the Court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The Court, therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion whether of an expert, or of any witness, the Court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision.” 10. This Court in Gujju Saraswati @ G. Saraswati (supra) held that legislature in its wisdom has not prescribed any stage for making application. Making the belated application is per se no ground to reject the same, when a case is made out. In the instant case, the learned trial court has not rendered the finding on the basis of comparison of signature appearing in Ext.A with that of the signature appearing in the plaint and Vakalatnama. P.W.2 deposed that he is acquainted with the signature of the plaintiff and Ext.A/1 is the signature of the plaintiff in the receipt vide Ext.A. He was not declared hostile. P.W.2 deposed that he is acquainted with the signature of the plaintiff and Ext.A/1 is the signature of the plaintiff in the receipt vide Ext.A. He was not declared hostile. In view of the clenching evidence on record, learned courts below are quite justified in holding that the signature appearing in Ext.A/1 is that of the plaintiff. There is no perversity in the findings of the learned courts below. The substantial question of law is answered accordingly. 11. In the wake of the aforesaid the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.