Dismissed

Perumallapalli Subhasekhar v. Namburi Mukherji Victor

Andhra Pradesh HC8 Sept 2023CRP/602/2023

Case brief

AI extract

What is this about?

The High Court dismissed two civil revision petitions challenging the lower court's orders allowing the sending of disputed signatures and various specimen documents (including wills and bank records) to a handwriting expert under Section 45 of the Indian Evidence Act, holding that experts determine fitness for comparison. The court affirmed that past opinions do not bind the trial court on merits

What did the court decide?

Both civil revision petitions were dismissed and no order as to costs was passed.

Perumallapalli Subhasekhar Vs Namburi… — Civil Procedure and Limitation | Andhra Pradesh HC (2023)

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THE HON’BLE MS JUSTICE B.S.BHANUMATHI Civil Revision Petitions No.601 & 602 of 2023

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COMMON ORDER :

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C.R.P No.601 of 2023 is filed under Article 227 of Constitution

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of India against the order, dated 18.10.2022, allowing the petition in I.A.No.245 of 2022 in O.S.No.4 of 2015 on the file of the Court of VI Additional District and Sessions Judge, Krishna at Machilipatnam, filed under Section 45 of Indian Evidence Act, seeking to send the disputed signatures of the petitioner/defendant on the alleged contract of sale, dt.26.03.2013, to the government handwriting expert for comparison of his admitted signatures available on record.

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2. C.R.P No.602 of 2023 is filed under Article 227 of Constitution of India against the order, dated 18.10.2022, allowing the petition in I.A.No.269 of 2022 in O.S.No.4 of 2015 on the file of the same Court, filed under Section 151 of Code of Civil Procedure, seeking to order to send for the documents having signatures of the petitioner, i.e. in Pension Payment Order book from the Sub-treasury Officer, Sub-treasury Office; specimen signatures of the petitioner from the State Bank of India, Main Branch, Machilipatnam, vide

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BSB, J C.R.P.Nos.601 & 602 of 2023

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A/c.No.10021533837; documents having specimen signatures of the petitioner from the Indian Overseas Bank, Machlilipatnam, vide A/c.No.005501000028178; and Thumb Impression Register containing signature of the petitioner in respect of the Will dt.11.12.2018, bearing Doc.No.404/2018 from the Sub-registrar Office, Machilipatnam, to a government handwriting expert for comparison of admitted signatures of the petitioner with the disputed signatures on the suit contract of sale, dt.26.03.2013.

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3. The revision petitioner is the respondent/plaintiff. The respondent herein is the petitioner/defendant.

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4. The plaintiff filed the suit for specific performance of the agreement of sale dated 26.3.2013. The defendant filed written statement denying the execution of the said agreement of sale at any point of time and specifically averred that it is a rank forged one. Therefore, he filed both the petitions in I.A.No.245 of 2022 and I.A.No.269 of 2022 on the same grounds for the same purpose, though the reliefs are slightly different, but connected.

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5. The petition was opposed by the plaintiff stating that the proposed documents sought by the petitioner that the will deed document No.404 of 2018 dated 11.12.2018 and the pension payment orders and the bank account are subsequent to the date of

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BSB, J C.R.P.Nos.601 & 602 of 2023

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the agreement of sale and there is every chance, likelihood or possibility of intentional disguise of the signatures and also change of fashion and style of the signatures. It is also contended that the proposed documents to be sent for from the bank and the pension payment order books do not disclose the dates beginning and ending of the period which they relate to and that the will is 5 years later to the agreement and not contemporaneous to it. It is further stated that the opinion of an expert is not perfect science and is not substantiate evidence or conclusive proof and requires corroboration and that no purpose would be served by sending the document to an expert, and also that Court can compare the available signatures with the disputed signatures under Section 73 of the Indian Evidence Act. It is also stated that since the agreement was scribed by Sri Simaon and attested by Sri Hanumantha Rao and Sri Murali, there is direct evidence and there is no need to seek opinion of an expert. The respondent stated that these petitions were filed to drag on the proceedings to protract the trial in one way or the other.

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6 . After hearing both parties, the trial Court allowed the petitions observing that merely because the proposed standard signatures are subsequent to the date of the disputed signatures, it cannot be concluded that they would be disguised and style of signatures

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BSB, J C.R.P.Nos.601 & 602 of 2023

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would be changed automatically and that though there would be a natural change in the style of subscribing the signature over a period of time, it is the domain of the expert to state whether the standard signatures are eligible or not for comparison. The trial Court further recorded that the proposed standard signatures are in the documents generated in the natural course of transactions and not related to any litigation and that regardless the worth and weightage of the opinion of expert, the opinion is a relevant fact and an opportunity must be given to the defendant to substantiate his defence.

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7. Having been aggrieved by the order, both the revision petitions are filed on the grounds the same as those raised in the counter.

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8. The learned counsel for the revision petitioner submitted that the signatures of the defendant available on record before the Court are not considered to be fit for examination by an expert, and therefore, no purpose would be served by allowing the petition. In this regard, he placed reliance on the decision of this Court in Byalla Devadas Vs. Sivapuram Rama Yogeswara Rao¹ , wherein at para No.9, it is observed as follows:

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1 2022 Live Law (AP) 53

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BSB, J C.R.P.Nos.601 & 602 of 2023

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“9. At this juncture, it is appropriate to refer to the orders passed by a learned Judge in P. Padmanabhaiah v. G. Srinivasa Rao AIR 2016 AP 118 (FB), the case of Dara Srinivasa Rao's case 2017 (1) ALT 710. In P. Padmanabhaiah's case AIR 2016 AP 118 (FB), the defendant in O.S. No. 324 of 2010 on the file of Court of the Additional Senior Civil Judge, Kurnool filed an application under Section 45 of the Indian Evidence Act to send the vakalat and written statement containing his signatures along with the promissory note (Ex. A.1) for handwriting expert for comparison of his signatures on the vakalat and written statement with the signatures said to be of him on Ex. A.1 and furnish a report with opinion as to the genuineness or otherwise of the disputed signatures on the said exhibits. The said application was allowed. The learned Judge of this Court while interfering with the orders of the Trial Court had extensively dealt with the matters with reference to comparison of signatures on vakalat and written statement with the disputed documents, inter alia, held as follows:-

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"In the well considered view of this Court, the defendants signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard as according to the plaintiff even by the date of the filing of the vakalat the defendant is clear in his mind about his stand in regard to the denial of his signatures on the suit promissory note and the endorsement thereon and as the contention of the plaintiff that the defendant might have designedly disguised his signatures on the Vakalat and the Written Statement cannot be ruled out prima facie. The view point being projected by the plaintiff that if the defendant is called upon to furnish his signatures in open Court, he might designedly disguise his signatures while making his signatures on papers in open court is also having considerable force and merit. Unless the defendant makes available to the Court below any documents, with his signatures, of authentic and reliable nature more or less of a contemporaneous period, and unless such documents are in turn made available to the expert along with the suit

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BSB, J C.R.P.Nos.601 & 602 of 2023

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promissory note, the expert will not be in a position to furnish an assured opinion, in the well considered view of this Court. .........There is no point in sending to an expert the documents of doubtful nature and character and add one more piece of unreliable evidence and burden the record by wasting the time and money of the parties. When there are no signatures of comparable and assured standard on the material record before the trial Court, it is unsafe to obtain the signatures of the defendant in open Court and send the said signatures and also his vakalat and written statement to an expert for obtaining his opinion after comparison of the signatures thereon with the disputed signatures on the suit promissory note, as any such opinion obtained from a handwriting expert on such material is not going to be of any help to the trial Court in effectively adjudicating the lis more particularly in the light of the admitted legal position that expert's opinion evidence as to handwriting or signatures can rarely, if ever, take the place of substantive evidence."

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The learned counsel further submitted that the witnesses to the disputed document can be examined, and therefore, the due execution or otherwise of the agreement can be decided by the Court and for that purpose, there is no need to send the document to an expert whose evidence is not an exact science and is a mere opinion, but not foolproof. Nextly, he submitted that the Court has jurisdiction to examine the disputed signatures, on its own, as per Section 73 of the Indian Evidence Act, and therefore, no purpose would be served by sending the document to an expert. With regard to the petition to call for the records, he submitted that calling for the documents containing the signatures not of a contemporaneous period would be a matter of waste of time and no

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BSB, J C.R.P.Nos.601 & 602 of 2023

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purpose would be served. He further placed reliance on the decision of the then Andhra Pradesh High Court in Satyanarayana Vs. P. Indira Devi² , wherein the facts show that originally, the disputed document was sent to an expert for opinion and thereafter, the report of the expert was also received, and later, an application was filed for summoning the expert to give evidence and the order therein was under challenge in the revision petition. In that case, the disputed signature on the negotiable instrument is of the year 1995 whereas the signatures of the defendant were obtained in open Court in the 2001. In that context, the Court held as follows:

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“4. I am of the opinion that insofar as negotiable instruments/promissory note is concerned, to rebut the presumptions available in favour of the Plaintiff, it is open for the Defendant to adduce oral and documentary evidence. Unless the general presumptions available under Section 118 of the Negotiable Instruments Act, 1881 in favour of the Plaintiff are rebutted by adducing appropriate evidence as to whether the pronote was executed or not for consideration on the date and place, it may not be just and proper to send the pronote for comparison of the signature on Ex.A-1 with that of the signatures taken in the open Court.

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The comparison of the signatures can be with that of the signatures admitted by the Respondent. Therefore, I am of the opinion that the Respondent has rightly taken a plea that the signatures taken in the open Court on 30-10-2001 and

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2 2010 (1) ALT 646

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BSB, J C.R.P.Nos.601 & 602 of 2023

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the signature on the pronote dated 03-12-1995 are not contemporaneous and it cannot be said that the signature taken in the open Court of the Petitioner is his admitted signature by the Respondent. Therefore, when the earlier order itself is illegal and untenable though there is justification on the part of the Petitioner in seeking to summon the expert and if the I.A is allowed, it amounts to restoring an illegal order. Therefore, I am not inclined to allow the revision.”

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9. The learned counsel for the respondent submitted that the revision petition has become infructuous and report of the expert expressing his opinion that the questioned signatures marked as Q1 to Q4 on the disputed agreement of sale were found to be traced. He further submitted that the trial Court has called for the documents and sent them to an expert and did not rely on the documents available before the Court such as vakalat, written statement or summons. He further submitted that it is for the expert to state whether the quality of the standard signature is sufficient to use for comparison and in the present case, since the expert has already examined and given a categorical opinion as to the disputed signatures with their quality of handwriting and also about the specimen signatures sent with regard to their quality and that too only with reasons.

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BSB, J C.R.P.Nos.601 & 602 of 2023

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Therefore, he submitted that now it cannot be contended that the specimen signatures sent are unfit for comparison. He placed reliance on the decision of the Madurai Bench of the Madras High Court in E. Murugamma Vs. S. Subbaiah and others³ ,

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wherein at para Nos.11, 12 and 13, it was held as follows:

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“11. The Court has to keep in mind that it is the duty of scientific expert to say anything about the variation if any found due to the time gap and that court cannot presume or predetermine the issue in all cases, unless the party disputing the signature takes as plea that the signature is varied due to passage of time. Section 45 of Indian Evidence Act also does put any restriction in respect of the period of signatures………..

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This Court is also not able to find any absolute bar to compare the signature of various period and also there is no positive rule to compare the signature of contemporaneous period alone. In fact it is the procedures and technicalities, which cannot be determined at the very threshold as there is every possibility that the signature may not be varied sometime.

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It is settled law that comparing the signature alone will not prove the case and the report of Expert also not conclusive and binding the court to follow the same but it is for the court to decide the matter on merits on the basis of other oral and documentary evidence available on record. At this juncture it is quite apt to cite the decision between State (Delhi Administration) v. Pali Ram , reported in AIR 1979 SC 14 and 15, whereby and whereunder it is observed as follows:

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3 C.R.P.(MD) (PD) No.339 of 2015, dated 14.06.2018

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BSB, J C.R.P.Nos.601 & 602 of 2023

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“It is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may from its own judgment by its own observation of those materials. Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking, such issues are for the Court or jury to determine. The handwriting expert’s function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. The Court should then compare the handwritings with its own eyes for a proper assessment of the value of the total evidence.’”

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10 . Perused the record.

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11 . In the present case, though the petitioner initially sought comparison of the disputed signatures with the signatures of the defendant available on record, he simultaneously filed petition to call for the other records available before various authorities which contain his signatures and the said petition was also allowed and those documents were sent to the expert along with the disputed signatures. Therefore, for the present, the discussion as to whether the signatures of the defendant are to be taken before the Court or whether the signatures of the defendant available on record in this suit, such as vakalat, summons or written statement would be of any use, is not necessary.

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12 . Nextly, since it is also contended that the documents having signatures of the defendant do not relate to the period

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BSB, J C.R.P.Nos.601 & 602 of 2023

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contemporaneous to the disputed document and are not fit for comparison, it is to be seen whether the documents sent are fit for comparison with the disputed signatures.

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13 . First of all, as rightly contended, it is for the expert to state whether the standard signatures sent are fit for comparison or not. It is settled law that mere length of the period between the disputed signatures and the standard signatures alone would determine the fitness of the standard signatures for comparison. For some persons who don’t frequently sign, there may not be much variation even over a long period, but for those who sign more, variation is more likely even during short period. There are other factors which influence such decision like illiteracy, texture of paper, ink, type of pen, position of holding etc., which will have a major impact on the quality of the standard signature.

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14 . As such, since the expert in this case did not raise any objection about the quality of the standard signature for use to compare with the disputed signature, it is hyper-technical now to say that it is unnecessary to call for the documents with his signatures for the purpose of comparison or seek the opinion of an expert. Of course, the opinion of an expert is not the final say and court is always empowered to examine the veracity of the opinion

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BSB, J C.R.P.Nos.601 & 602 of 2023

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given by an expert in the light of the reasons assigned by the expert. At this stage, this Court does not want to go into the reasons assigned by the expert since it may have influence on the trial Court while adjudicating the matter though, as a matter of principle, observations in an interlocutory application have no bearing on the final adjudication of the matter. It is suffice, at this stage, to observe that this Court does not find any reason to find that the standard signatures sent are not sufficient for examination by an expert. In fact, on examination of an expert as a witness before the Court, there is ample opportunity for both parties to ascertain from him the reasons which would either support or demolish the grounds basing on which the opinion was given.

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15 . As such, there is no reason to interfere with the impugned orders in both the revisions.

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16 . Accordingly, both the revision petitions are dismissed.

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There shall be no order as to costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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___________________ B. S. BHANUMATHI, J

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08-09-2023 SAB/RAR

Perumallapalli Subhasekhar v. Namburi Mukherji Victor

Case brief

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Perumallapalli Subhasekhar v. Namburi Mukherji Victor

Case brief

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