Revision dismissed. The High Court held that while laches should not alone dismiss an application for expert opinion on forgery allegations, this petitioner's total failure to take steps to obtain relevant signatures or evidence rendered the lower court's dismissal valid.
Revision petition dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
The Hon’ble Sri Justice B. Chandra Kumar
C.R.P.No. 733 of 2011
O r d e r:
This revision is directed against the order dated:20-01-2011 in I.A.No. 232 of 2010 in O.S.No. 87 of 2008 on the file of the learned Additional Junior Civil Judge, Sompeta, Srikakulam District. The parties herein would be referred to as they are arrayed before the lower court, for the sake of convenience.
2. The brief facts of the case are: The petitioner is the defendant in the original suit. The respondent filed the suit for recovery of money basing on Ex A-1, Promissory note said to have been executed by the petitioner herein. The case of the petitioner is that he has not executed Ex A-1 and the signature on Ex A-1 is a forged one. It is also his case that he was not at Sompeta on the alleged date of execution of Ex A-1. The specific case of the petitioner is that he was working in a private organization at Hyderabad during the relevant period. It is also his case that he used to sign in small letters in narrow spacing; but the signature on Ex A-1 is in elaborate spacing with lines on either side.
3. A detailed counter was filed denying the averments made by the petitioner. It was specifically contended that there is oral evidence adduced by the respondent to prove the execution of the promissory note by the petitioner and therefore, there is no need to send the promissory note to the Handwriting expert for comparison. 4. The lower court observing that the respondent’s side evidence was closed on 30-09-2010; the suit was posted for petitioner’s evidence on 08-10-2010; and that the petitioner failed to adduce evidence on 8-10-2010; 20-10-2010 and on 3-11-
2010 and on 18-11-2010 and also filed to pay costs and that on 18.11.2011 instead of adducing evidence, the petitioner filed this petition; that the docket proceedings clinchingly establish that the petitioner filed this petition to drag on the proceedings at a belated stage; that no purpose would be served by sending the signatures to the hand writing expert, that the expert evidence is only an opinion evidence and it is not a conclusive proof and that the petitioner is at liberty to adduce oral and documentary evidence in support of his case dismissed the petition.
5. Sri Manik Prabhu, learned counsel for the petitioner submitted that merely because the petitioner did not attend the court on previous occasions and was not diligent, the court below ought not to have dismissed the petition. It is also his submission that the lower court ought to have considered that the petitioner has taken a specific plea that the signature on Ex A-1 is a forged one and that when he had taken the specific plea of forgery the lower court ought to have sent the document for hand writing expert’s opinion.
6. In support of his contention, Sri Manik Prabhu has relied on a decision of this court in Ravaluru Venkata Subbamma v. Ravaluru
Somasekhar[1] .
7. Sri M.V.Suresh, learned counsel for the respondent submitted that the lower court having observed the conduct of the petitioner in not taking steps at the relevant time and subsequently for his absence before the court in spite of imposing costs has rightly dismissed the petition. His main case is that when the petitioner has taken the specific plea that he was not at Sompeta at the relevant time i.e., on the alleged date of execution of Ex A-1, he can adduce oral and documentary evidence in support of his contention and there
is no need to send Ex A-1 to the hand writing expert. It is also his submission that the respondent has adduced necessary evidence by examining the attester and proved the execution of Ex A-1 by the petitioner and as the expert evidence is only opinion evidence, there is no need to send the document to the Handwriting Expert, as requested by the petitioner.
8. Now the points that arise for consideration are:
ii) When forgery is alleged what steps should be taken?
9. In the first cited case the question that came up for consideration is whether the stamp paper was of the year 1956 or not. In such circumstances, this court observed that “the petitioner has not taken steps till it was spoken to by the witness; it was only in March, 2007 the document came to be marked as Ex B-1 and shortly thereafter, the application was filed and that any attempt made by the petitioner to disprove the alleged will, would have certainly alerted the respondent to search for excuses and that the petitioner was well advised to wait till the cross examination vis-à-vis the document.” The facts of that case appears to be not similar and in that case the issue was a different i.e., the age of the stamp paper was in question.
10. In Murarilal v. State of Madhya Prades h[2] the Apex Court was considering the evidence of a Handwriting Expert while dealing with a criminal case and held:
“There is no justification for condemning his opinion evidence to the same class of evidence as that of an accomplice and insist upon corroboration……The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On
the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher…..An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence.”
11. The principle with regard to the appreciation of the expert evidence was considered by the Hon’ble Supreme Court in S. Gopal Reddy v. State of A.P.[3] . It was held by the Apex Court that “the evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering “conclusive” proof and, therefore, safe to rely upon the same without seeking independent and reliable corroboration.” It was also observed that “it would be risky to found a conviction solely on the evidence of a handwriting expert before acting upon such evidence, the Court must always try to see whether it is corroborated by other evidence, direct or circumstantial”.
12. Reliance is also placed on a decision of the Hon’ble Supreme Court in Surya Dev Rai v. Ram Chander Rai[4] wherein the power of this court while exercising jurisdiction under Article 226 and 227 of the Constitution of India came up for consideration.
13. I n Binodlal Sagarmal, Hyderabad v. Prem Prakash Gupt a[5] various principles in relation to exercise of jurisdiction under Article 227 of the Constitution of India have been explained. 14. A Division Bench of this Court in Janachaitanya Housing Ltd. v. Divya Financier s[6] held that “no time could be fixed for filing applications seeking expert opinion. The matter should be left open to the discretion of the court and that the court may allow such an
application basing upon the facts and circumstances of each case.” 15. The Hon’ble Supreme Court in Fakruddin v. The State of Madhya Prades h[7] held that:
“Evidence of the identity of handwriting receives treatment in three sections of the Indian Evidence Act. They are sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. The evidence Act also makes relevant the opinion of handwriting expert (S. 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the beset method of proof, the latter makes relevant two other modes. A writing may be proved to be in 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 the comparison of handwritings on a scientific basis. A third method (S. 73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person.
Both under S. 45 and S. 47 the evidence is an opinion, in the former by the scientific comparison and in the later 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 then 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.”
16. Thus a signature or writing may be proved to be the writing of a particular individual by evidence of a person familiar with the handwriting of that individual or by the evidence of attestor, who is a direct witness when the particular individual signed on the document. A handwriting or a signature may be proved by taking the opinion of a Handwriting Expert or by comparison of the same by the court itself in certain circumstances. The evidence of an expert is only an opinion and may not be conclusive proof to prove the signature, but certainly the same will help the courts in coming to a just conclusion. 17. But, when forgery has been alleged and when a specific plea has been taken, the court cannot simply brush aside such contentions. Of course, the parties must be diligent and they must take necessary steps at the appropriate time and there may be laches in a particular case. However, merely because there are laches on the part of a particular party, the court need not dismiss his application on the ground of laches alone. If the court feels that the parties were dragging on the matter or taking unnecessary adjournments, then the court may impose reasonable costs or allow the application on such terms and conditions as it feels necessary and reasonable.
18. Of course, as far as the facts of the present case are concerned, the lower court is right in saying that the petitioner is at liberty to adduce ocular and documentary evidence in support of his
case that he was not at Sompeta on the relevant date. As seen from the contents of the order, it is also clear that the petitioner was not diligent. He failed to adduce evidence on 03-11-2010 in spite of imposing costs and the matter was adjourned to 18-11-2010 on further costs and on that day also he was called absent, in spite of imposing costs and he did not take any steps and instead of adducing evidence he came up with this application. Therefore, it cannot be said that the order of the lower court is perverse or that there are any mistakes apparent on the face of the record, which call for interference by this court.
19. Sri Manik Prabhu submits that the petitioner was having Bank account during the relevant period; that his signatures may be available in the bank pertaining to the said period during which Ex A- 1 is executed. Without expressing any final opinion, it appears that it may not be always safe to send the signatures obtained in open court or the signatures available on Vakalath or Written Statement, since admittedly those signatures were put after the suit has been filed since the person whose signature is in dispute may intentionally put his signature differently to suit his case, when a defendant has taken a specific plea that he has not signed on the disputed documents and the signature thereon is a rank forgery, I feel that justice has to be done and the court must satisfy itself as to whether such a plea has any semblance of truth or not. In such circumstances, the defendant who is alleged to have signed on the disputed documents must take appropriate steps and see that his signatures pertaining to the relevant period available in any government department or in any bank are summoned and after summoning those documents, he may make a request to send those signatures and the disputed signatures to a Handwriting expert for
his opinion. However, care has to be taken that the documents are secured from proper custody or from responsible officers and there is no dispute with regard to the genuineness of those documents or signatures thereon. Then the court after considering all the facts and circumstances of the case may exercise its discretion or itself, may examine those signatures and if it comes to the conclusion that opinion of the Handwriting expert may help it in coming to a just and reasonable conclusion, the court may send such signatures and the disputed signatures to a Handwriting Expert for his opinion.
20. In this case, admittedly, the petitioner has not taken any steps. He did not file any application to summon the documents from any government department or public sector undertaking or banks. Therefore such a question does not arise in this case. If such contingency arises, the court may by taking into consideration the relevant facts and circumstances of the case, pass appropriate orders. Subject to the above observations, I hold that there are no merits in the revision petition.
21. The revision petition is accordingly dismissed. In the circumstances there shall be no order as to costs.
B. CHANDRA KUMAR, J.
*August 16, 2011. BVS
IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD
Tuesday, August 16, 2011.
Present: The Hon’ble Sri Justice B. Chandra Kumar
C.R.P.No. 733 of 2011
Between: Varanasi Srinivasa Rao
..Petitioner
and
Malla Chalapathi Rao
…Respondent
[1] 2009 (5) ALT 549 [2] AIR 1980 SC 531 [3] AIR 1996 SC 2184 [4] 2003 (5) ALD 36 (SC) [5] 2003 (5) ALD 222 [6] 2008 (3) ALT 409 (DB) [7] AIR 1967 SC 1326
3 issues framed by the court
Whether the impugned order dismissing the application for handwriting expert opinion is sustainable.
What steps should a court take when forgery is alleged in a civil suit.
Whether laches and failure to obtain signatures from proper custody preclude granting expert opinion.
Colour shows how this judgement treated each authority
Ravaluru Venkata Subbamma v. Ravaluru SomasekharDistinguished¶9
2009 (5) ALT 549
Murarilal v. State of Madhya PradeshRelied on¶17
AIR 1980 SC 531 · Who else cites this
S. Gopal Reddy v. State of A.P.Relied on¶18
AIR 1996 SC 2184 · Who else cites this
Surya Dev Rai v. Ram Chander RaiRelied on¶22
2003 (5) ALD 36 (SC)
Binodlal Sagarmal, Hyderabad v. Prem Prakash GuptaReferred¶23
2003 (5) ALD 222
Janachaitanya Housing Ltd. v. Divya FinancierReferred¶23
2008 (3) ALT 409 (DB)
Fakruddin v. The State of Madhya PradeshRelied on¶24
AIR 1967 SC 1326 · Who else cites this
Varanasi Srinivasa Rao
Malla Chalapathi Rao
B. Chandra Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
