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2023 DIGILAW 82 (AP)

Dindi Kiran Kumar v. Balaji Sankar Singh

2023-01-06

VENKATESWARLU NIMMAGADDA

body2023
ORDER : Both the revision petitions are filed against the orders dated 25.03.2022 passed by the I Additional Junior Civil Judge, Kakinada, in I.A. No. 103 of 2022 and I.A.No.104 of 2022 in O.S. No. 102 of 2019 respectively. 2. Since the issue involved in both the revision petitions is same and parties to the revision petition are also same, they are heard and disposed of by way of this common order. 3. In brief, the facts of the case are that the respondent filed a suit in O.S.No.102 of 2019 on the file of the I Additional Junior Civil Judge, Kakinada, against the petitioner for recovery of money under a promissory note. During pendency of the suit, the petitioner filed I.A.Nos.103 of 2022 and 104 of 2022 under Section 45 of the Indian Evidence Act, 1872 and Section 151 of CPC praying the Court below to send Exhibit A.1- promissory note to the Andhra Pradesh State Forensic and Scientific Laboratory, Mangalagiri, for comparison of his admitted signatures on vakalat and written statement and the signatures to be obtained in open Court and also for comparison of his Left Thumb Impression. 4. The learned counsel for the petitioner/defendant submits that the signatures of the petitioner on the suit promissory note are forged and fabricated and the petitioner never borrowed any amount from the respondent. As such, he is entitled to prove his defence by seeking expert opinion. After completion of evidence of the plaintiff, the burden shifts to the defendant to prove his case of forgery and fabrication. Therefore, filing of the present I.As. is in defence of the petitioner/defendant but not to cause any delay or to drag on the matter. He submits that the law is well settled that the judgment cannot be based on comparison, in particular, the comparison of thumb impression is not possible. Hence, the finding of the court below that comparison of the signatures and thumb impression on suit pronote with vakalatnama and written statement are one and the same, is erroneous. He submits that the law is well settled that the judgment cannot be based on comparison, in particular, the comparison of thumb impression is not possible. Hence, the finding of the court below that comparison of the signatures and thumb impression on suit pronote with vakalatnama and written statement are one and the same, is erroneous. The learned counsel further submits that the observation of the Court below that having considered the entire evidence that is placed before the Court, the Court below came to a conclusion that there is no need of referring signatures and left thumb impression of the petitioner for comparison for expert opinion, is nothing but pre-judging the issue and predetermined to decree the suit. By that, the court below committed jurisdictional error in passing the impugned orders and failed to exercise jurisdiction vested in it. Therefore, the orders of the Court below dated 25.03.2022 are illegal, erroneous and unsustainable in law, in view of the judgments rendered by the Hon’ble Supreme Court, this Court and other High Courts. a) In Karuppa Gounder Vs. Kuppusamy, AIR 2009 Madras 122, the High Court of Madras held as under: “6. I am of the considered opinion that obtaining handwriting expert's opinion in the facts and circumstances of this case would certainly help the Court to arrive at a consistent and firm conclusion. A plain reading of the order of the lower Court would convey the idea that the lower Court dismissed the I.A. on the sole ground that there was delay in applying to the Court by the defendant for getting the assistance of the handwriting expert. In such a case, the mere delay should not be taken as material, for the reason that as per the defendant's version, he awaited the plaintiff to take steps to obtain handwriting expert's opinion, but in this case, he did not do so. Hence, when the matter was posted for defence, he chose to invoke the power of the Court under Order 26 Rule 10 (a) of CPC and to get assistance of handwriting expert to find out whether the purported signature of the defendant is that of his admitted signature. Hence, when the matter was posted for defence, he chose to invoke the power of the Court under Order 26 Rule 10 (a) of CPC and to get assistance of handwriting expert to find out whether the purported signature of the defendant is that of his admitted signature. Even though Section 73 of the Indian Evidence Act might contemplate that the Court itself could compare the disputed signature with that of the admitted signature, nonetheless, the Court should be slow in resorting to such a procedure, to the effect judicial views are found set out in catena of decisions of the Hon’ble Apex Court…….. ” b) In Guru Govindu Vs. Devarapu Venkataramana, AIR 2006 AP 371 , this Court held as under: “4. The trial Court dismissed the application of the petitioner on two grounds. The first is that it was filed at a belated stage and the second is that in view of existence of power in the trial Court under Section 73 of the Act, it may not be necessary to accede to the request to send the documents to an expert's opinion. The first reason assigned by the trial Court does not appear to be sound. It is not as if the application under Section 45 of the Act must be filed soon after the written statement is presented. There may be instances where the necessity to file such application would arise after the oral evidence of certain witnesses is over. In case, the party concerned is able to elicit necessary information or admissions during the course of evidence, the necessity to file an application under Section 45 of the Act may not arise. Nothing prevents the party to a suit to file an application under Section 45 of the Act, even at the stage of arguments.” c) In R.V.Raveendran & P. Sathasivam Thiruvengada Pillai Vs. Navaneethammal, (2008) 3 ALD (SC) 112, the Hon’ble Supreme Court held thus: “15.1. In the State (Delhi Administration) v. Pali Ram [ (1979) 2 SCC 158 : 1979 SCC (Cri) 389] this Court held that a court does not exceed its power under Section 73 if it compares the disputed writing with the admitted writing of the party so as to reach its own conclusion. In the State (Delhi Administration) v. Pali Ram [ (1979) 2 SCC 158 : 1979 SCC (Cri) 389] this Court held that a court does not exceed its power under Section 73 if it compares the disputed writing with the admitted writing of the party so as to reach its own conclusion. But this Court cautioned: “Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.” The caution was reiterated in O. Bharathan v. K. Sudhakaran [ (1996) 2 SCC 704 ] . Again in Ajit Savant Majagvai v. State of Karnataka [ (1997) 7 SCC 110 : 1997 SCC (Cri) 992] referring to Section 73 of the Evidence Act, this Court held: “37. … The section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself. 38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act.” d) In Janachaitanya Housing Limited, Hyderabad Vs. Divya Financiers, Guntur, (2008) 4 ALD 339 , the Division Bench of this Court held thus: “16. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act.” d) In Janachaitanya Housing Limited, Hyderabad Vs. Divya Financiers, Guntur, (2008) 4 ALD 339 , the Division Bench of this Court held thus: “16. For the reasons aforementioned we answer the reference thus: “No time could be fixed for filing applications under Sec. 45 of the Indian Evidence Act for sending the disputed signature or writings to the handwriting expert for comparison and opinion and same shall be left open to the discretion of the Court; for exercising such discretion when exigencies so demand, depending upon the facts and circumstances of the each case.” e) In Damara Venkata Murali Krishna Rao Vs. Gurujupalli Satvathamma, 2008 (5) SCC 424, the Hon’ble Supreme Court held as follows: “8. Learned counsel for the appellant submitted that the High Court has proceeded on erroneous premises. The cross-examination was conducted on 24-7-2006 and the application in question was filed on 1-8-2006. The application was filed in terms of Order 19 Rule 1 of the Code of Civil Procedure, 1908 (in short “CPC”). There is no appearance on behalf of the respondent. The conclusions of the High Court, that the sole object in making the application was to protract the litigation, is not factually correct as the factual scenario goes to show. The earlier civil revision petition was disposed of on 29-3-2006. On 24-7-2006, son of the respondent (CW 1) was examined after being summoned. According to the appellant, the occasion for making the application arose only after such examination, on account of the statements made denying the suggestions. The application was made immediately on 1-8-2006.” f) In Bande Siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu, (2016) 2 ALD 1 , the Full Bench of this Court held as under: “27. We accordingly answer the reference as under: It is essentially within the judicious discretion of the Court, depending on the individual facts and circumstances of the case before it, to seek or not to seek expert opinion as to the comparison of the disputed handwriting/signature with the admitted handwriting/signature under Section 45 of the Indian Evidence Act, 1872. We accordingly answer the reference as under: It is essentially within the judicious discretion of the Court, depending on the individual facts and circumstances of the case before it, to seek or not to seek expert opinion as to the comparison of the disputed handwriting/signature with the admitted handwriting/signature under Section 45 of the Indian Evidence Act, 1872. The Court is however not barred from sending the disputed handwriting/signature for comparison to an expert merely because the time gap between the admitted handwriting/signature and the disputed handwriting/signature is long. The Court must however endeavour to impress upon the petitioning party that comparison of disputed handwritings/signatures with admitted handwritings/signatures, separated by a time lag of 2 to 3 years, would be desirable so as to facilitate expert comparison in accordance with satisfactory standards. That being said, there can be no hard and fast rule about this aspect and it would ultimately be for the expert concerned to voice his conclusion as to whether the disputed handwriting/signature and the admitted handwriting/signature are capable of comparison for a viable expert opinion. The view expressed by the Division Bench in JANACHAITANYA HOUSING LIMITED v. DIVYA FINANCIERS, as to the stage of the proceedings when an application can be moved by a party under Section 45 of the Indian Evidence Act, 1872, continues to hold the field and there is no necessity for this Full Bench to address that issue.” 5. The learned counsel for the respondent/plaintiff submits that the Court below rightly held that filing of the present applications filed under Section 45 of the Evidence Act, 1872 at the stage of arguments is only to drag on the matter. He further submits that as rightly held by the Court below, it has ample power under Section 75 of the Indian Evidence Act, 1872 to compare the signatures and thumb impressions out of the record. Therefore, in the event of difficulty in comparison, then only the reference to expert opinion would arise. He contends that there is every possibility of change of signatures if the timeline is very high. Even in the present case, the date of execution of the promissory note is 08.08.2016 and the petitioner/defendant sought for comparison of signatures in the year 2022. There is a gap of six years timeline and there is high possibility of change of signatures. Even in the present case, the date of execution of the promissory note is 08.08.2016 and the petitioner/defendant sought for comparison of signatures in the year 2022. There is a gap of six years timeline and there is high possibility of change of signatures. He further contends that for comparison of signatures by an expert, the admitted signatures of the petitioner/defendant which are furnished within the timeline of 1 or 2 years shall be preferred. But in the case on hand, the petitioner filed the applications seeking comparison of signatures on vakalath and written statement filed in the suit after completion of three years without furnishing the admitted signatures within the timeline of 1 or 2 years. He further contends that the signatures on vakalath and written statement should not be taken into consideration for the reason that prime defence of the petitioner/defendant in his written statement is that the subject promissory note is only forged and fabricated one. So, he might have pre-determined to attest different signatures in vakalath and written statement. The same was upheld by a catena of judgments of the Hon’ble Apex Court as well as this Court. He contends that the orders passed by the Court below under Section 73 of the Indian Evidence Act, 1872 are discretionary and cannot be found fault with. He further contends that the present revision petitions are filed under Article 227 of the Constitution of India and therefore, the petitioner shall make out a case of perversion, lack of jurisdiction and violation of rights of the parties and denial of ample opportunity. In the absence of the same, this Court cannot exercise its jurisdiction under Article 227 of the Constitution of India. In support of his contentions, the learned counsel relied upon the judgment of the Hon’ble Supreme Court in Garre Mallikharjuna Rao Vs. Nalabothu Punniah (Civil Appeal No.647 of 2005 dated 12.03.2013) wherein it is held thus: “11. In Ajay Kumar Parmar v. State of Rajasthan [ (2012) 12 SCC 406 : (2013) 2 SCC (Civ) 405 : AIR 2013 SC 633 ] while dealing with the provisions of Section 73 of the Evidence Act, 1872, this Court observed that courts should be slow to base their findings solely on comparison made by it. In Ajay Kumar Parmar v. State of Rajasthan [ (2012) 12 SCC 406 : (2013) 2 SCC (Civ) 405 : AIR 2013 SC 633 ] while dealing with the provisions of Section 73 of the Evidence Act, 1872, this Court observed that courts should be slow to base their findings solely on comparison made by it. The Court further held: “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.” 6. In view of the foregoing discussion, the orders dated 25.03.2022 passed by the I Additional Junior Civil Judge, Kakinada, in I.A. No. 103 of 2022 and I.A. No. 104 of 2022 in O.S. No. 102 of 2019 do not warrant any interference by this Court. Accordingly, both the Civil Revision Petitions are dismissed. No order as to costs. As a sequel, miscellaneous applications, if any, pending in the criminal petition shall stand closed.