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2018 DIGILAW 364 (RAJ)

Mangal Kishore v. Brij Kishore

2018-01-30

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT Sanjeev Prakash Sharma, J. - Learned Senior Counsel, appearing on behalf of plaintiff petitioner assails the order dated 11/09/2017 whereby the application moved by the plaintiff-petitioner under section 45 of the Indian Evidence Act for sending the document i.e. the affidavit stated to be signed by him which he alleges to be forged, to FSL has been rejected by the learned trial court. 2. Learned counsel for the plaintiff-petitioner submits that since the document was produced in a separate suit filed by the plaintiff-petitioner in defence by the defendants-respondents and immediately thereafter the plaintiff-petitioner had lodged an FIR alleging the said document to be a forged document, the case of the plaintiff-petitioner has always been that the document is a forged one. In this regard, learned counsel points out that litigation ensued earlier before this Court and when the SHO demanded the said document for getting the same verified though FSL, this Court observed as under:- "As observed here in above, in view of the observation made by this court in the case Mahant Deepak Swami (supra), in my considered view, this is a fit case for interference by this court and consequently, the order impugned date 28.04.2006 passed in case No. 179/01 is hereby quashed and set aside. Accordingly, the writ petition stands allowed. However, it is observed that the respondent is at liberty to make out the case before the trial court and if the trial court in the interest of justice is satisfied that the documents in question are essentially required to be examined it's correctness and genuineness by the FSL, the court can pass appropriate order to this effect instead of hand over and document to the Police." 3. Learned counsel for the plaintiff-petitioner further submits that in the present case too, during evidence of the plaintiff-petitioner, the document was produced by the defendants-respondents and the plaintiff-petitioner has denied existence of the said document and has also stated that the same is a forged document and not signed by him. In continuation thereof, it has become incumbent upon the plaintiff-petitioner, therefore, to move application under section 45 of the Indian Evidence Act praying the concerned Court to send the document for FSL examination. In continuation thereof, it has become incumbent upon the plaintiff-petitioner, therefore, to move application under section 45 of the Indian Evidence Act praying the concerned Court to send the document for FSL examination. It is submission of the learned counsel that the learned trial court has fallen in error in relying on section 73 of the Indian Evidence Act and not getting their document eight sent to the FSL or getting the handwriting examined from a private expert. Learned counsel relies on the judgment passed by the Apex Court in the case of State (Delhi Administration) vs. Pali Ram : AIR 1979 (SC) 14 . 4. From the perusal of the order impugned, this Court finds that the learned trial court, while rejecting the application, has noted that the veracity of the document i.e. affidavit can be examined by the Court on the basis of the statements which have come in support or against the same in evidence as also with reference to the signatures of the plaintiff-petitioner in terms of section 73 of the Indian Evidence Act. The High Court in separate proceedings has already directed for the case to be decided within a period of six months and keeping in view the law relating to examining documents and veracity of handwriting, the application moved by the plaintiff-petitioner has been rejected. 5. A look at the judgment cited at bar, it would show that the Apex Court, while examining the issue regarding admitted writings and provisions of Section 73, has discussed the various provisions under Section 73 and has held as under:- "31. In this connection, the observations made by Hidayatullah, J. (as he then was) in Fakhruddin vs. State of Madhya Pradesh (ibid) are apposite and may be extracted : "Both under Sections 45 and 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case, the Court must satisfy itself by such means as are open that the opinion may be acted upon. In either case, the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in one case and to appraise the value of the opinion in the other case. The comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in a large measure in the disputed writing. In this way, the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness." 32. Since even where proof of handwriting which is in nature comparison, exists, a duty is cast on the Court to use its own eyes and mind to compare, the admitted writing with the disputed one to verify and reach its own conclusion, it will not be wrong to say that when a Court seised of a case, directs an accused person present before it to write down a sample writing, such direction in the ultimate analysis, "is for the purpose of enabling the Court to compare" the writing so written with the writing alleged to have been written by such person, within the contemplation of Section 73. That is to say, the words 'for the purpose of enabling the Court to compare' do not exclude the use of such "admitted" or sample writing for comparison with the alleged writing of the accused, by a handwriting expert cited as a witness by any of the parties. That is to say, the words 'for the purpose of enabling the Court to compare' do not exclude the use of such "admitted" or sample writing for comparison with the alleged writing of the accused, by a handwriting expert cited as a witness by any of the parties. Even where no such expert witness is cited or examined by either party, the Court may, if it thinks necessary for the ends of justice, on its own motion, call an expert witness, allow him to compare the sample writing with the alleged writing and thus give his expert assistance to enable the Court to compare the two writings and arrive at a proper conclusion. 33. For all the foregoing reasons, we are of opinion that in passing the orders dated May 20, 1972 relating to the disposal of the applications dated December 11, 1970, the learned Additional District Magistrate did not exceed his powers under Section 73, Evidence Act. The learned Judges of the High Court were not right in holding that in directing the accused by his said Order dated May 20, 1972, the Magistrate acted beyond the scope of Section 73 or in a manner which was not legal. 6. Of-course, the aforesaid observations and directions were in relation to a criminal case. However, this Court hasten to add that when evidence has already been recorded by the learned trial court relating to the said document and the plaintiff-petitioner has denied the very existence and authenticity of the document, it is for the Court to read the evidence which has come on record and pass its final verdict. 7. With the aforesaid observations, this Court does not find it necessary to interfere with the order impugned keeping in view the scope of writ jurisdiction under Article 227 of the Constitution of India as has been held by the Apex Court in the case of Raj Kumar Bhatia vs. Subhash Chander Bhatia : 2017 (14) SCALE 355 , wherein it has been observed as under:- "In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6, Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21 September 2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff." 8. In view thereof, the writ petition is dismissed.