1. Heard Mr. C.A.R. Seshagiri Rao, learned counsel representing Mr. Ajay Kumar Madisetty, learned counsel for the petitioner and Mr. Nandigam Krishna Rao, learned counsel representing Mr. Ennamsetty Akhil, learned counsel for the respondent.
2. This revision is filed challenging the order dated 10.07.2023 passed by Principal District Judge at Hanumakonda in I.A. No.431 of 2023 in O.S. No.135 of 2017 dismissing the petition filed under Section - 45 of the Indian Evidence Act, 1872 (for short ‘Act, 1872’).
3. The petitioner herein is the sole defendant in O.S. No.135 of 2017, while the respondent herein is the plaintiff. The plaintiff filed the said suit vide O.S. No.135 of 2017 against the petitioner herein - defendant for recovery of an amount of Rs.15,83,000/- based on promissory note alleged to have executed by the petitioner herein.
4. During pendency of the aforesaid suit, the petitioner herein had filed an application vide I.A. No.431 of 2023 under Section - 45 of the Act, 1872, seeking to refer Ex.A1-promissory note, Vakalathnama, written statement and original passport to handwriting expert for tallying his signatures with that of admitted signatures on the following grounds:
i) He did not execute the suit promissory note (Ex.A1) at any point of time;
ii) He had not signed on the alleged Ex.A1 and it was created and fabricated one; and
iii) He denied execution of Ex.A1 promissory note at the first instance itself i.e., in the written statement filed by him.
iii)
5. The respondent - plaintiff filed counter opposing the relief on the following grounds:
i) In the written statement filed by the petitioner, he did not plead or aver that the suit promissory note was forged document;
ii) The petitioner did not made any suggestion about the forgery of Ex.A1 during cross-examination of PW.1;
iii) For the first time, the petitioner denied his signatures and execution of Ex.A1 promissory note in the present petition; and
iv) The petitioner filed the aforesaid petition with an intention to delay the proceedings in the suit.
6. Apart from I.A. No.431 of 2023, the petitioner also filed an interlocutory application vide I.A. No.720 of 2023 under Order – VIII, Rule - 1A (3) of the CPC, seeking to receive the original passport for sending the same to hand-writing expert as prayed in I.A. No.431 of 2023.
7. After hearing both sides, learned Principal District Judge, Hanumakonda, vide common order dated 10.07.2023, dismissed the said application (I.A. No.431 of 2023) as well as I.A. No.720 of 2023 on the following grounds:
i) The defendant did not explain as to why he did not choose to take steps for sending the disputed document to hand-writing expert for comparing with his admitted signatures at the earliest point of time;
ii) On 23.02.2023 only the defendant filed aforesaid petitions and after arguments of plaintiff were completed on 15.02.2023;
iii) The suit transaction was dated 04.01.2016, whereas the passport filed by the defendant is dated 25.07.2007. Therefore, it is a document of about 9 years prior to the suit transaction. The defendant did not explain as to why his signatures on passport of 2007 is relevant for comparing with the disputed signature of 2016; and
iv) The petition filed by the defendant is without any merits and only with an intention to drag on the proceedings;
8. Challenging the said order, dated 10.07.2023 in I.A.No.431 of 2023, the petitioner - defendant filed the present revision.
9. Mr. C.A.R. Seshagiri Rao, learned counsel representing Mr. Ajay Kumar Madisetty, learned counsel for the petitioner - defendant would submit that the main suit itself is for recovery of money and the defendant has disputed about execution of Ex.A1 alleged promissory note and the signatures thereon in his written statement. Thus, the petitioner - defendant laid foundation at the earliest. Without considering the same, the trial Court dismissed the said application. Thus, the order under challenge is liable to be set aside.
10. On the other hand, Mr. Nandigam Krishna Rao, learned senior counsel for the respondent would contend that the petitioner filed the present petition at the belated stage with an intention to drag on the proceedings. The petitioner has not taken specific plea in his written statement with regard to the forgery of his signature on the suit pro-note and, therefore, the petitioner has not laid foundation to seek the relief under Section - 45 of the Act, 1872. Considering all the said aspects, the trial Court rightly dismissed the petition vide impugned order and there is no error in it.
11. In view of the aforesaid rival submissions and perusal of record would reveal that the respondent - plaintiff filed the suit vide O.S. No.135 of 2017 against the petitioner - defendant for recovery of Rs.15,83,000/- based on promissory note (Ex.A1) said to have executed by the petitioner in favour of the respondent on 04.01.2016. The petitioner after entering his appearance through his advocate filed written statement denying the claim of the respondent.
12. Perusal of averments of written statement would reveal that the petitioner disputed the suit claim stating that he never executed any promissory note in favour of the plaintiff. It is also mentioned in paragraph No.4 of the written statement that “In fact the Plaintiff developed evil eye over the Defendant and to encash wrongfully created false and fabricated documents with a malafide intention to gain and a falsified promising note was created and issued the demand notice, which is not tenable under law.”
13. In view of the above specific pleadings in the written statement filed by defendant that he never executed the suit promissory note and the plaintiff filed the suit by creating the same, the petitioner - defendant laid the foundation for filing an application under Section - 45 of the Act, 1872 for sending Ex.A1 for expert’s opinion to compare his signature on Ex.A1 with his admitted signatures so as to arrive at a just conclusion as to genuineness of Ex.A1. When the above suit was coming up for arguments on behalf of the defendant, he filed the said applications.
14. It is relevant to extract Sections - 45 and 73 of the Act, 1872 and the same is 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 2 [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 3 [or in questions as to identity of handwriting] 2 [or finger impressions] are relevant facts. Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.”
“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.”
15. Section 45 of the Act, 1872, inter alia, provides that the Court can call for evidence of experts to form an opinion regarding the genuineness of signatures and handwriting which are relied on by one party and disputed by another party. It is also relevant to note that the power to seek expert opinion under Section 45 of the Act, 1872 is discretionary and depends on facts of each case. The Courts under Section 73 of the Act, 1872 can themselves compare the signatures or handwriting. However, the Hon’ble Supreme Court has time and again cautioned that Courts cannot act as experts in all the cases. Unless it is glaringly clear that the signatures are same or are different, the Courts should normally call for an opinion from the experts.
16. In State (Delhi Admn.) v. Pali Ram (1979) 2 SCC 158, the Apex Court held that prudence requires that a judge shall obtain expert opinion in the matters of comparison of handwriting. The relevant paragraph is extracted below:
“30. The matter can be viewed from another angle, also. 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.”
17. In Ajit Savant Majagvai v. State of Karnataka (1997) 7 SCC 110, the Apex Court held that where there is even slightest of doubt in the minds of the Judge while comparing the admitted and disputed signatures, such signatures shall be sent for expert opinion under Section 45 of the Act, 1872. The relevant paragraphs are extracted below:
“37. This section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or fingerprints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. 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. [See: State (Delhi Admn.) v. Pali Ram [(1979) 2 SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14].”
18. In Thiruvengadam Pillai v. Navaneethammal (2008) 4 SCC 530, the Apex Court observed that it is risky to arrive at a conclusion regarding signatures and handwriting without an expert opinion. The relevant paragraph is extracted below:
“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. 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.”
19. In Ajay Kumar Parmar v. State of Rajasthan (2012) 12 SCC 406, the Apex Court held that, the Courts while dealing with handwriting or signatures cannot itself act as an Expert. The relevant paragraph is extracted below:
“28. 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.”
20. In Ramesh Chandra Agrawal v. Regency Hospital Limited AIR 2010 SC 806, the Apex Court held as under:
“An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished whichform the basis of his conclusions. (See Malay Kumar Ganguly vs. Dr.Sukumar Mukherjee and others) [Criminal Appeal Nos.1191-1194 of 2005 along with Civil Appeal No.1727 of 2007, decided on 7.8.2009]”.
21. Therefore, in view of the dicta in the above decisions, it can be said that Courts shall normally seek expert opinion when they are posed with a situation where they have to compare admitted and disputed signatures. The Courts can refuse expert opinion only when no doubt exists regarding the genuineness of the signatures after comparison of the admitted and disputed signatures. In cases where even a slightest doubt exists, the Courts shall send the admitted and disputed signatures for expert opinion under Section 45 of the Act, 1872.
22. In the light of the aforesaid discussion, coming to the facts of the present case, as discussed above, the petitioner - defendant laid foundation by denying execution of the subject pro-note. According to him, he never executed the subject promissory note in favour of the plaintiff and never received any consideration under such promissory note from the plaintiff. The petitioner filed the petition under Section- 45 of the Act, 1872 when the aforesaid suit was coming for defendant’s argument.
23. When a suit for recovery of money based on promissory note and when execution of the same was disputed by other side, the only remedy left for the trial Court is to obtain expert’s opinion by sending such promissory note for expert opinion to compare the signature on promissory note with that of admitted signatures. In fact, that is the object of Section - 95 of the Act, 1872. Thus, it is just and necessary to send Ex.A1 - promissory note dated 04.01.2016 for expert’s opinion to compare the signature on it with the admitted signatures available on Vakalat and written statement filed by the defendant and specimen signatures of the defendant to be obtained in Open Court. Even if the said documents are sent for expert’s opinion, no prejudice would be caused to the respondent. When there is specific denial by the petitioner that he never executed the pro-note, it is not safe to reject the present petition. The said principle was also reiterated by this Court in Katike Bheem Shankar v. Mrs. T. Laxmi @ Punyavathi C.R.P. No.1939 of 2022, decided on 20.12.2022. The said aspects were not considered by the trial Court. Thus, the order under challenge in this revision is liable to be set aside.
24. In the light of the aforesaid discussion, the present Civil Revision Petition is allowed setting aside the order dated 10.07.2023 passed by learned District Judge at Hanumakonda I.A. No.431 of 2023 in O.S. No.135 of 2017. I.A. No.431 of 2023 is allowed, and the trial Court is directed to send Ex.A1 - promissory note dated 04.01.2016 along with Vakalat, Written Statement filed by the defendant and specimen signatures of the defendant to be obtained in Open Court for Expert’s opinion to the Forensic Science Laboratory, so as to compare the signature on Ex.A1 with the aforesaid admitted signatures and obtain his report as early as possible so as to proceed with further in the aforesaid suit. The petitioner shall bear the cost of the said report. In the circumstances of the cases, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the revision shall stand closed.
