@JUDGMENTTAG-ORDER
G. Yethirajulu, J.@mdashThis Revision Petition has been filed by the defendant in O.S. No. 31 of 2005 on the file of the Additional Senior Civil Judge (Fast Track Court) at Gudivada.
2. The respondents-plaintiffs filed the suit for declaration that they got a right of passage of a width of 12 feet on the north east corner of plot No. 3 belonging to the defendant for ingress and egress and for consequential injunction directing the defendant to demolish the structure covered by schedule ''AB'' and to grant permanent injunction restraining the defendant and his men from ever interfering with the joint possession and enjoyment of right of passage. In the plaint, it was mentioned that after purchase of the properties by both parties, they came to an understanding to leave 12 feet wide passage and on 15-09-1987, they reduced their understanding to writing. The plaintiffs filed the said agreement of understanding before the lower Court, which is an unregistered document. The defendant in the written statement categorically denied the execution of such agreement of understanding and is contending that the plaintiffs have no right of passage as claimed by them.
3. At the earliest time, the defendant filed an Application to send the disputed documents to the expert. But, the lower Court dismissed the Application by observing that it is premature. Later, at the time of commencement of the trial, the defendant filed I.A. No. 166 of 2008 reiterating his request to send the document to the handwriting expert for comparison. The plaintiffs opposed the Application by placing some decisions before the lower Court. The lower Court passed an order, dated 27-06-2008, which reads as follows:
After hearing both sides and perusing the petition and counter it is noticed that it is not necessary to send the agreement for the comparison and opinion of hand writing expert. The court may compare the signatures with admitted signatures of the executant of the document to form an opinion.
In view of the discussion I hold that the petition is not maintainable and it is liable to be dismissed.
4. Section 45 of the Indian Evidence Act, 1872 (for short ''the Act'') reads as follows:
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.
Under the above Section, a document can be sent to the handwriting expert for the purpose of comparison of handwriting or signatures on the disputed document. Section 73 of the Act reads as follows:
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.
Under the above Section, the Court can compare the signatures on the disputed document with the admitted signatures.
5. In the present case, the defendant took a specific plea that the agreement of understanding was not signed by him. He also made an Application u/s 45 of the Act to send the document to the handwriting expert for comparison of the disputed signature with the admitted signatures. The lower Court, by relying on some decisions, dismissed the Application without assigning any further reasons as to why the request of the defendant shall not be considered.
6. The learned Counsel for the respondents placed reliance on certain Judgments rendered by this Court and Supreme Court in support of his contention that it need not be sent to the handwriting expert when there is a long gap between the date of document and the date of comparison.
In
The disputed signatures are of the year 1995 and whereas the specimen signatures are of the year 2004, there is a gap of nearly nine years between the two signatures. So far as signatures of the petitioners appearing in written statement etc., there is every possibility of his disguising his style of signature so as to make them dissimilar with the disputed signatures. Since there are no contemporaneous signatures for comparison with the disputed signatures, there is no useful purpose in sending the suit documents to an expert for his opinion. The trial Court considered the matter in right perspective and dismissed the application. I do not see any valid ground to interfere wit the impugned order.
In
For comparison of any signature on the suit promissory note with the admitted signature, there is no necessity to send the suit document to the expert. Section 73 of the Indian Evidence Act provides for comparison of signatures, writing or seal with others admitted or proved. Under the law, it is always open for the court itself to compare the signature on the promissory note with the admitted signature of the defendant i.e., the petitioner herein to find out its genuineness. It is only when the Court is unable to come to a just conclusion on such comparison, then expert''s opinion may be required. The admitted signature of the defendant is always available with the trial Court because at the time when the defendant engaged his Counsel, vakalat would be filed by the Counsel, wherein the defendant signs and the Court can always look into that signature and compare it with that of the suit promissory note. Hence, there is no need to refer the suit document to the expert''s opinion.
7. In the above decisions rendered by this Court, no authoritative pronouncement of the Supreme Court has been relied on and the learned single Judges expressed opinions that since there are no contemporaneous signatures for comparison of the disputed signatures, no useful purpose will be served in sending the document to the expert for his opinion. The Court expressed the said view by taking into consideration that the disputed signatures are of the year 1995 and the specimen signatures are of 2004 and there is a gap of 9 years between the two signatures. But, from the facts of the present case, the above decisions are distinguishable, therefore, they are not applicable to the present case.
8. In
Handwriting may be proved on admission of the writer or by the evidence of some witness in whose presence it was written. This is direct evidence. In the absence of such direct evidence, opinion of handwriting expert or of some who is familiar with the writing of the person is relevant. Thus besides direct evidence which of course is the best method of proof, the law makes two other modes also as relevant, i.e., a writing may be proved to be the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to compare the handwritings on a scientific basis. A third method is also provided by the Evidence Act in Section 73. It is comparison by the court with the writing made in the presence of the court or admitted or proved to be the writing of the person. The Court can apply its own observation to the admitted or proved writings and to compare them with the disputed one. This comparison depends on an analysis of the characteristics in the admitted or proved writings and of the same characteristics in large measure in the disputed writing. Even if there is the opinion of the expert on the handwriting, it is subjected to the scrutiny by court. The expert''s opinion is not the final word. The court must see for itself whether it can safely be held that the two writings are of the same person. To this extent, court may play the role of an expert. The court can accept the disputed signature to be that of the witness when it is satisfied on its observation that it is safe to accept the same.
9. The Court further observed that although Courts should be slow in resorting to this method, we do not find it faulted as the method adopted by the Court is in conformity with Section 73, when larger public interest is served by expeditious disposal of the election petition.
10. Under the Indian Evidence Act, two direct methods of proving the handwriting of a person are:
(a) by an admission of a person who wrote it;
(b) by the evidence of some witness who saw it being written by that person.
Apart from these, there are some other methods of proving the handwriting by opinion. They are:
1. by the evidence of a handwriting expert (Section 45).
2. by the evidence of a witness acquainted with the handwriting of the person who is said to have written the disputed writing (Section 47).
3. opinion formed by the Court itself on comparison made of the disputed writings with the admitted or specimen writings (Section 73).
11. In Fakhruddin v. State of M.P. (1980) 1 SCC 704 (sic) : AIR 1967 SC 1326, the Supreme Court held:
Both u/s 45 and Section 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. 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 an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in 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.
12. In
30. ...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.
While there is no doubt that the Court can compare the disputed handwritings with the admitted handwriting, such comparison by Court without the assistance of any expert has always been considered hazardous and risky.
13. In Murali Lal v. State of M.P. (1980) 1 SCC 704, the Supreme Court indicated the circumstances in which the court may itself compare the disputed and admitted writings thus:
Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person "specially skilled" "in questions as to identity of handwriting" is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert''s opinion in unworthy of credit unless corroborated. The Evidence Act itself (Section 3) tells us that "a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act. Further, u/s 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that Section 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
14. In
We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this will must have been signed in 1943 as it purports to be. Besides it is necessary to observe that expert''s evidence as to handwriting is opinion-evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case the probabilities are against the expert''s opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it.
So, there was acceptable direct testimony which was destructive of the expert''s opinion; there were other features also which made the expert''s opinion unreliable. The observations regarding corroboration must be read in that context and it is worthy of note that even so the expression used was "it is usual" and not "it is necessary".
In
We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion-evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
15. In
There are many factors which have to be taken into consideration in effecting a comparison of the two signatures, and although a Court could apply its own eyes and its own mind to determine whether a particular signature is resembling another it would be going beyond the ordinary limits of the capacity of a Court to constitute itself as a Handwriting Expert and try to compare the signature without all the gadgets and devices which are available to a Handwriting Expert, besides the lack of expert knowledge which a Handwriting Expert possesses.
16. The above legal position makes it clear that the expert''s opinion is not excluded from the purview of examination and it was opined that it will help the Court in exercising power of comparison u/s 73 of the Evidence Act.
17. Whenever a party disputes the signature on a particular document, two remedies are open to him, either to request the court to compare the signatures or to file an Application to send the document to the expert for comparison. When the petitioner opted to file an Application to send the document to the handwriting expert, no prejudice will be caused to either party. When he is asserting that the signature is that of the said party, even though there is a gap between the disputed signatures and admitted signatures, a science has been developed to compare such signatures also by taking into consideration the direction of the strokes, the speed of writing, the pattern of writing etc., therefore, it cannot be said that no useful purpose will be served by sending the document to the expert. After comparison, if the similarities of the disputed signature and the admitted signatures are very negligible, then the Court can formulate its opinion with the assistance of the expert''s report and by comparing the signatures whether the report has to be accepted or not. But, if the opportunity is denied to the defendant and if the matter is carried to the Appellate Court, there is every likelihood of commenting that he did not avail the opportunity of filing an Application for sending the document for handwriting expert''s opinion, if he is so sure that the disputed signature does not belong to him.
18. In view of the circumstances, I am of the view that it is essential to send the document to the expert for comparison at the request of the party in the interests of justice, which cannot cause any amount of prejudice to the plaintiffs in the present suit, therefore, the order of the lower Court is liable to be set aside.
19. The Civil Revision Petition is, accordingly, allowed. The order of the lower Court, dated 27-06-2008 in I.A. No. 166 of 2008 is set aside. Consequently, I.A. No. 166 of 2008 is allowed. No order as to costs.
