Partly allowed

M.A. Velappan v. Karthic Worms

Madras HC7 Mar 2011SA/65/2010

Case brief

AI extract

What is this about?

In a second appeal regarding a money recovery suit, the High Court held that the first appellate court erred in comparing disputed signatures with post-litem motem signatures in the plaint and vakalat as an expert. The matter is remitted for a forensic handwriting expert opinion to ascertain the document's authenticity before a final decision on merits.

What did the court decide?

Second appeal disposed of; first appellate judgment set aside; matter remitted to first appellate court to send disputed signature for handwriting expert opinion after collection of ante litem motam s

M.A. Velappan Vs Karthic Worms — Specific Performance | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 07.03.2011

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Coram:

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THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.65 of 2010 & M.P.No.1 of 2010

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M.A.Velappan .. Appellant (Plaintiff)

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vs.

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1.Karthic Worms A Partnership Firm, rep.by its Partner, A.Rathinagiri

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2.A.Rathinagiri

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3.Manonmani .. Respondents (Defendants)

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This Second Appeal is focussed as against the judgment and decree dated 11.6.2007 passed by the First Additional District Court, Erode, in A.S.No.135 of 2004, reversing the judgment and decree dated 9.1.2004 passed by the I Additional Sub-Court, Erode, in O.S.No.68 of 1999.

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For appellant : Mr.N.Manokaran

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For respondents : Mr.S.V.Jayaraman,Sr.Counsel for Mr.V.S. Kesavan

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JUDGMENT

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This Second appeal is focussed by the plaintiff animadverting upon the judgment and decree dated dated 11.6.2007 passed by the First Additional District Court, Erode, in A.S.No.135 of 2004, reversing the judgment and decree dated 9.1.2004 passed by the Additional Sub-Court, Erode, in O.S.No.68 of 1999, which was filed for recovery of money.

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The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

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Narratively but precisely, broadly but briefly, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:

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(a) The appellant herein, as plaintiff, filed the suit for

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recovery of a sum of Rs.1,17,700.00 with future interest at 12% per annum on Ra.1,00,000/- from the date of suit till the date of realisation.

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(b) The first defendant filed the written statement resisting the suit.

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(d) On the side of the plaintiff, the plaintiff examined himself as P.W.1 along with P.W.2 and P.W.3 and Exs.A1 to A28 were marked. On the defendants' side, the first defendant examined himself as D.W.1 along with D.W.2 and Exs.B1 to B28 were marked.

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(e) Ultimately the trial Court decreed the suit, as against which the defendants preferred the appeal. Whereupon the appellate Court reversed the judgement and decree of the trial Court and dismissed the suit, after comparing the disputed signatures in Exs.B4, B7 and B23 with not that of the ante litem motam signatures, but with the admitted signatures of the plaintiff available in the plaint, vakalat etc.

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Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the plaintiff preferred this Second Appeal on various grounds inter alia suggesting the following substantial questions of law.

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"a) Whether the first appellate Court is empowered to dismiss the suit on promissory note by comparing the signature found in the suit promissory note with that of the signature found in the vaklat and written statement with naked eye especially when the Court is not a scientific expert to give opinion on the issue regarding the handwriting?

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b) Whether the first appellate Court is legally entitled to arrive a finding of forgery solely on the basis of the comparison under Sec.73 of the Evidence Act, significantly the defendant has not taken any steps under Sec.45 of the Evidence to get an opinion of an expert?

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(extracted as such)

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The learned counsel for the plaintiff placing reliance on the grounds of second appeal would put forth and set forth his argument that the first appellate Court was not justified in assuming the role of a handwriting expert and in comparing the disputed signatures of the plaintiff with that of the admitted signatures in the plaint and vakalat and not with any authentic ante litem motam signatures of the plaintiff. Accordingly, the learned counsel would pray for setting aside the judgment and decree of the first appellate Court and for restoring the judgment and decree of the trial Court.

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6.Piloting the arguments on the side of the defendants, the learned Senior counsel for the defendants would develop his arguments, the kit and caboodle of them would run thus:

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(a) The first appellate Court correctly and legally compared the disputed signatures in Exs.B4, B7 and B23 with the admitted signatures of the plaintiff in the plaint and vakalat, which cannot be found fault with.

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(b) Exs.B1, B3 and B6 are the relevant entries corresponding to Exs.B4, B7 and B23 and those entries are all found in the account books, which are maintained in the regular course of business of the defendants firm.

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Accordingly, the learned Senior counsel for the defendants would pray for the dismissal of the second appeal.

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On perusal of the records I am of the view that the following substantial questions of law could be framed for consideration.

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"(i) Whether the first appellate Court was justified in assuming the role of an expert by invoking Section 73 of the Indian Evidence Act and comparing the disputed signatures in Exs.B4, B7 and B23 with the admitted signatures in the vaklat and plaint, which are not ante litem motam documents and that too, without applying the principles embodied in the Forensic science relating to analysis of handwriting?

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(ii) Whether there is any perversity or illegality in the findings of the first appellate Court?"

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Both the aforesaid substantial questions of law are taken together for discussion as they inter linked and inter woven with each other.

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At the outset itself, I fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL.

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(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.

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(iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL

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(iv) (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI]

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A plain poring over and perusal of those decisions would highlight and spotlight the fact that the Second Appeal cannot be entertained by the High Court as per Section 100 of CPC unless there is any substantial question of law is made out from the available materials on record.

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This is a case where admittedly the trial Court decreed the suit, whereupon the first appellate Court reversed it by invoking Section 73 of the Indian Evidence Act and compared the disputed signature with the admitted post litem motem signatures of the plaintiff, so to say the signatures in the Vakalat and plaint.

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The core question arises as to whether the first appellate Court was justified in doing so without applying the principles embodied in the handwriting science?

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At this juncture, I would like to refer to the decision of the Hon'ble Apex Court reported in (2008) 4 SCC 530 [Thiruvengadam Pillai vs. Navaneethammal and another]; certain excerpts from it would run thus:

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"16. When 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

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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.

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The decision in Murari Lal and Lalit Popli should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal.

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The trial court had analysed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first defendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial court and the High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of Pws. 1 to 3. We therefore of the view that the decision of the High Court, reversing the decision of the first appellate Court, does not call for interference."

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There is also one other decision rendered by me reported in 2008 (3) CTC 470 [Ganapathy Thevar v. Shanmuga Thevar]; certain excerpts from it would run thus:

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"14. .......The Court cannot assume the role of an expert in comparing the disputed handwriting with that of the admitted ones. No doubt, the Court as per Section 73 of the Evidence Act, in certain circumstances could exercise its power with caution. In such an event, it is the bounden duty of the Court to

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specify clearly as to what are the salient features based on which the finding is arrived at.

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It is common knowledge that the science of analysing the questioned documents contemplates certain principles and theories. Here, both the Courts below were not objective in analysing the impugned handwriting.

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No carte blanche is given to any Court to simply compare the disputed handwriting with that of the admitted handwritings and arrive at a subjective satisfaction about the similarities and dissimilarities. There should have been reasons set out for arriving at such conclusion, but here, both the Courts below have not resorted to such a procedure. The subjective satisfaction of both the Courts below cannot be taken in favour of the defendant."

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(iii) (1979) 2 SUPREME COURT CASES 158 – THE STATE (DELHI ADMINISTRATION) V. PALI RAM.

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A mere poring over and perusal of the above precedents would highlight and spotlight the fact that the Court is not expected to assume the role of an expert and arrive at the conclusion in one way or other relating to the genuineness or otherwise of a document unless extraordinary circumstances warrant so, and furthermore, once the Court assumes the role of an expert necessarily, the various characteristics as found recognised in the science of handwriting analysis should be referred to, so to say, at least a famous treatise on handwriting analysis should be referred to and accordingly, there should be a detailed judgment. Mere subjective satisfaction would not be sufficient. No carte blanche is given to any Court to simply look at the disputed signature with some admitted signatures and give a finding that the Court is satisfied in one way or the other.

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Here in this case, the first appellate Court, at paragraph No.11 referred to certain exhibits and culled out certain similarities as well as dissimilarities and arrived at the conclusion. Such an approach is far from satisfactory. The characteristics as contemplated in any famous treatise, have not been referred to at all. Hence, I am of the considered view that the conclusion arrived at by the first appellate Court based on its own observation in a matter of this nature should not be encouraged and I would also like to point out that the disputed

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signatures of the plaintiff in the vouchers Ex.B4, B7 and B23 were compared not with any ante litem motam signature and not even by obtaining any sample signatures before the Court by invoking Section 73 of the Indian Evidence Act.

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I would also hasten to add that obtaining sample signatures before the Court also should be resorted to as a last measure, so to say, if at all there is no ante litem motam signatures available. Here, no endeavour has been taken in that regard to secure ante litem motam signatures of the plaintiff.

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The learned counsel for the plaintiff in all fairness would submit that the Court did not demand any such signatures from the plaintiff and he undertakes to produce such authentic signatures of the plaintiff before the first appellate Court for being sent to the expert for comparison purpose.

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Inasmuch as the first appellate Court has committed an error in deciding the lis based on its subjective satisfaction relating to the disputed signatures as already highlighted supra, I am of the view that for the purpose of deciding the lis on a better footing, obtention of the expert opinion is very much required in this case. However, both the parties should bear the cost for getting such expert opinion.

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Accordingly, the first substantial question of law is decided to the effect that the first appellate Court was not justified in comparing the disputed signature with the admitted signatures of the plaintiff in the Vakalat, plaint etc.

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The second substantial question of law is decided to the effect that since the first appellate Court failed to take into account the aforesaid points discussed supra, interference in the Second Appeal is warranted.

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Hence in this view of the matter, I am of the considered view that the matter should be remitted back to the first appellate Court. Ultimately the judgment and decree of the first appellate Court are set aside and the matter is remitted back to the first appellate Court to send the disputed signature to the handwriting expert for getting the opinion. The plaintiff is enjoined and hereby mandated to furnish before the first appellate Court his contemporaneous signature or authentic ante litem motam signature found in some valid document and submit it before the first appellate Court. Whereupon, an Advocate Commissioner shall be appointed :

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(a) To carry the relevant documents in connection with this case personally in a sealed cover;

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(b) and produce the same before the Forensic Expert;

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many days as the Forensic Expert may require;

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(d) collect the record from the Forensic Expert on the day

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as may be fixed by him;

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(e) bring it back and lodge it with the Court.

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The Forensic Expert is directed to complete the examination of the records in any event, within 48 hours after the depositing of the same by the Advocate Commissioner with him.

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After getting such opinion from the Forensic Expert, both sides should be given opportunity to file objections, if any, and after hearing both sides, the matter shall be disposed on merits untrammeled and uninfluenced by any of the observations made by this Court in deciding this Second Appeal, within a period of four months thereafter.

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In the result, the Second Appeal is disposed of accordingly. However, there is no order as to costs. Both sides shall appear before the First Additional Sub-Court, Erode, on 2.4.2011. Consequently, connected miscellaneous petition is closed.

Sd/Asst.Registrar.

/true copy/

Sub Asst.Registrar.

Msk