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2023 DIGILAW 637 (PNJ)

Jai Bhagwan v. Ved Kumari

2023-02-10

VIKAS SURI

body2023
JUDGMENT Vikas Suri, J. (Oral) - The present revision petition preferred under Article 227 of the Constitution of India is directed against the order dated 03.02.2023 (Annexure P-1), whereby the application for handwriting expert for comparison of signatures of defendant No.l (petitioner) and her deceased husband Harish Kumar, has been allowed. 2. Facts in brief are that the defendant No.2 (respondent No.2 herein) sought for handwriting expert for comparison of signatures of defendant No.l and those of her deceased husband Harish Kumar, on the documents Exhibit 16 to P-19, Mark PA and PB from the admitted documents submitted by the plaintiff-respondent-Jai Bhagwan. 3. It was pleaded before the trial Court that the plaintiff-respondents submitted forged documents, Mark PA and PB and Exhibit P-16 to P-19, which the petitioner and her husband had never executed and the signatures thereon can be compared with the admitted documents. It was further pleaded that plaintiff-respondents prepared forged documents on behalf of the petitioner and her husband deceased Harish Kumar. They never executed the application and affidavit dated 18.04.2007 in favour of the plaintiff-respondent. 4. On notice, the said application was opposed on the ground that the documents which the defendant wants to get compared by the handwriting expert have already been compared and the handwriting expert appeared as plaintiff witness and has deposed as PW-4. The petitioner had cross-examined the said witness along with another handwriting expert and in view of the same, the application for handwriting expert was not maintainable as such. Thus, it is liable to be dismissed. 5. The trial Court after considering all the facts and circumstances and the provisions of Sections 45 and 73 of the Evidence Act, 1872, was of the opinion that no prejudice would be caused to any party if necessary permission to the plaintiff will be given to inspect the Court file and take photographs of the signatures of the same with the signatures available on documents of judicial file, as mentioned in the amended application. It was also ordered that both the parties will be given equal opportunity to prove and to controvert the case of each other. Admissibility of the evidence was to be adjudicated after leading of evidence by both the parties and the photographs were to be taken in the Court, in the presence of the opposite party. 6. It was also ordered that both the parties will be given equal opportunity to prove and to controvert the case of each other. Admissibility of the evidence was to be adjudicated after leading of evidence by both the parties and the photographs were to be taken in the Court, in the presence of the opposite party. 6. Learned counsel for the petitioner contends that the defendant-respondent should not have been permitted for handwriting expert, as the plaintiff has already examined a handwriting expert in his evidence. 7. Heard learned counsel for the petitioner and with his able assistance perused the pleadings and other material placed on file. 8. The application moved earlier by the plaintiff-petitioner for handwriting expert was allowed vide order dated 02.07.2022 (Annexure P-7). In the said order, it was specifically recorded that both the parties will be given equal opportunity to prove and to controvert the case of each other. Learned counsel for the petitioner has not referred to any provision of law, which would bar the defendant from bringing on record the evidence or opinion of a handwriting expert, if the same has already been done by the other side. In other words, the petitioner cannot seek an order restraining the defendant from bringing on record its evidence to prove its pleaded case or to controvert the case set up by the other side. 9. In the considered opinion of this Court, the impugned order is in continuity with the previous order dated 02.07.2022 (Annexure P-7), wherein while allowing the application moved by the plaintiff-respondent, it was categorically held that both the parties will be given equal opportunity to prove and to controvert the case of each other. Sections 45 and 73 of the Evidence Act, 1872, read as under: '45. Opinions of experts.- When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.' 73. Such persons are called experts.' 73. Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger-impressions." 10. A perusal of the aforesaid provisions shows that the same inter alia provide that the real function of the expert is to enable the Court to form its opinion on the questioned document or part thereof and it cannot be assumed at the stage when the opinion of the expert is sought by the Court, that such opinion may go in favour of the contesting parties. 11. From the aforesaid provisions it is also culled out that the Court is empowered to call for an expert opinion. However, the Court is to reach its conclusion based on its own finding and not solely upon the findings submitted by the expert. In Dayal Singh and others vs. State of Uttaranchal, (2012) 8 SCC263, the Apex Court held as under: 40. We really need not reiterate various judgments which have taken the view that the purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion. Such report is not binding upon the court. The court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. Just to illustrate this point of view, in a given case, there may be two diametrically contradictory opinions of handwriting experts and both the opinions may be well reasoned. Just to illustrate this point of view, in a given case, there may be two diametrically contradictory opinions of handwriting experts and both the opinions may be well reasoned. In such case, the court has a critically examine the basis, reasoning, approach and experience of the expert to come to a conclusion as to which of the two reports can be safely relied upon by the court. The assistance and value of expert opinion is indisputable, but there can be reports which are, ex facie, incorrect or deliberately so distorted as to render the entire prosecution case unbelievable. But if such eyewitnesses and other prosecution evidence are trustworthy, have credence and are consistent with the eye-version given by the eyewitnesses, the court will be well within its jurisdiction to discard the expert opinion. An expert report, duly proved, has its evidentiary value but such appreciation has to be within the limitations prescribed and with careful examination by the court. A complete contradiction or inconsistency between the medical evidence and the ocular evidence on the one hand and the statement of the prosecution witnesses between themselves on the other, may result in seriously denting the case of the prosecution in its entirety but not otherwise." 12. In view of the above noticed provisions and settled law, there would be no embargo for the defendant-petitioner to get the signatures on the questioned documents compared with the admitted documents available on record, which would only assist the Court to arrive at its conclusion, assisted by the expert opinion available on record. Even if there are diagonally opposite opinions, the Court has to appreciate the evidence on record, keeping in view the other evidence on that point. Expert evidence is always open to scrutiny by the Court, like evidence of any other person. 13. Keeping in view the above discussion and no provision to the contrary having been pointed out or any judicial precedent cited in support of the contentions raised on behalf of the petitioner, I am of the considered opinion that the impugned order does not suffer from any legal infirmity or perversity. In fact, the impugned order has equally balanced the scales between the contesting parties, by granting them equal right and opportunity to lead their respective evidence in support of the case pleaded by them. 14. Accordingly, the present petition being bereft of merit, is dismissed.