Allowed

Maram Srinivas v. Nandyala Mangamma

Telangana HC18 Sept 2014CRP/2260/2014

Case brief

AI extract

What is this about?

A single-judge High Court, in a revision under Article 227, quashed a trial court order dismissing an application to send a disputed promissory note for handwriting expert opinion. The Court held that the trial court erred in relying solely on Section 73 to compare signatures when the signature was specifically denied in the written statement, violating the prudent course of obtaining expert assis

What did the court decide?

The impugned order of 23.06.2014 dismissing I.A.No.15 of 2014 is set aside, and the application is allowed to proceed.

Maram Srinivas Vs Nandyala Mangamma — Civil Procedure and Limitation | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE A.V. SESHA SAI

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CIVIL REVISION PETITION No.2260 of 2014

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ORDER:

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This Revision, filed under Article 227 of the Constitution of India, calls in question the Order dated 23.06.2014 passed by the Court of Additional Judicial Magistrate of 1^st Class at Miryalaguda, Nalgonda District, dismissing I.A.No.15 of 2014 in O.S.No.25 of 2009 filed by the petitioner herein under Section 45 of the Indian Evidence Act to send the original Promissory Note for comparison of the signature with the alleged signature under endorsement dated 30.12.2006.

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2. Heard Sri K. Jagadishwar Reddy, learned counsel for the Revision petitioner/Defendant. None appears for the respondent despite service of notice.

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3. The respondent herein instituted O.S.No.25 of 2009 on the file of the Court of the Additional Judicial Magistrate of I Class, Miryalaguda, for recovery of Rs.82,800/- together with interest on the foot of a promissory note. Resisting the said suit, the petitioner filed Written Statement. In the said Written Statement, the petitioner stated that the respondent/plaintiff forged his signature on the reverse of the suit document, below the alleged payment endorsement, with the help of his friends and that the petitioner further pleaded that he never made such repayment either on 30.12.2006 or any other date. Earlier, the petitioner herein filed I.A.No.632 of 2009 under Section 45 of the Indian Evidence Act, seeking the same relief. The learned Additional Junior Civil Judge, Miryalguda, by virtue of an Order dated 13.07.2012, dismissed the said application by holding that the Court can also compare the signature by invoking the provisions of Section 73 of the Indian Evidence Act.

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4. As against the said order passed in I.A.No.632 of 2009, the petitioner preferred C.R.P.No.6009 of 2012 before this Court, and

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this Court dismissed the said revision by way of an Order dated 12.04.2013, giving liberty to the petitioner to renew his request before the trial court at the appropriate stage. The petitioner now filed the present application in I.A.No.15 of 2014 under the provisions of 45 of the Indian Evidence Act, praying the Court below to obtain his admitted signatures in the court for comparison with the signature on demand promissory note dated 31.01.2004 i.e., Ex.A.1 and the signature on the reverse of the pro-note dated 30.12.2006 i.e., Ex.A.2 (below the alleged payment endorsement) to the hand writing expert for his opinion. The plaintiff/respondent filed Counter resisting the said application, inter alia contending that the said application is an attempt to drag on the matter on flimsy grounds and that a similar application was earlier dismissed by the court below and confirmed by this Court in Civil Revision Petition. The learned Additional Judicial Magistrate of I Class, Miryalguda, by virtue of an Order dated 23.06.2014, dismissed the said application filed by the petitioner herein.

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5. Assailing the said Order passed by the court below, the present Civil Revision Petition has been filed by the petitioner under Article 227 of the Constitution of India.

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6. It is contended by the learned counsel for the revision petitioner that the order under revision is erroneous and contrary to the law and opposed to the provisions of 45 of the Indian Evidence Act. It is further argued by the learned counsel for the revision petitioner that the respondent/plaintiff, in the Written Statement filed before the Court below, categorically stated that the signature on Ex.A.2 is a forged one and laid foundation for the relief sought.

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7. Now the issue, which this Court is called upon to answer in the present Revision, is whether the Order passed by the court below is sustainable and tenable and whether it is in conformity with the provisions of Section 45 of the Indian Evidence Act ?

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8. The material available on record manifestly discloses that the petitioner filed a Written Statement as long back as on 06.10.2009

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categorically stating that the alleged signature on the reverse of the suit pro-note under the alleged payment endorsement is a forged one. Earlier in I.A.No.632 of 2009, the Court below, while dismissing the said application observed that the Court can compare the signature by invoking the provisions of the 73 of the Indian Evidence Act. In the said Order, the court below further observed that the Court can send the signature to the hand writing expert after completion of trial. This Court also in the Order dated 12.04.2013 in C.R.P.No.6009 of 2012 gave liberty to the petitioner to renew his request before the lower court at the appropriate stage.

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9. In the said backdrop, once again, the petitioner filed the present application seeking the same relief and that the court below passed the impugned order holding that the Court has power under Section 73 of the Indian Evidence Act to compare the disputed and admitted signatures and the Court below also opined that there is no necessity to send the document for the purpose of comparison of signature to the hand writing expert.

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10. In the case of State (Delhi Administration) v. Pali Ra m^[1] , the Hon’ble Apex Court at paragraph No.29 held as under:

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“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”.

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11. In the case of Velaga Sivarama Krishna v. Velaga

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Veerabhadra Rao and anothe r^[2] , this Court at paragraphs 19 and 20

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held as under:

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“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 under Section 73 of the Evidence Act. 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 ending the document for Handwriting Expert’s opinion, if he is so sure that the disputed signature does not belong to him”.

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12. In the case of Jalagadugula Eswara Rao and others v.

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Davala Surya Rao^[3] , this Court at paragraphs 10 and 11 held as under:

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“A cogent reading of the above provisions make it clear that it is the discretion of the Court to send any disputed document to an Handwriting Expert for his opinion so as to ascertain the signature or the thumb impression is forged or not. Such discretion has to be exercised judiciously and in a fair manner. Whether to send a disputed

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document to the Handwriting Expert or not depends upon the nature of the rival contentions of the parties and the nature of evidence already let in. If there are laches on the part of the parties in protracting the litigation, the Court may impose costs or pass conditional orders. But that cannot be a ground to deny the relief sought by the parties at the time of trial”.

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“As far as the trial Courts are concerned, the trial Courts should allow the parties to adduce the oral and documentary evidence intended to be adduced by them, of course, which appears to be relevant for the purpose of the case. The doors of the trial Court should not be closed at this stage, denying the opportunity to any party, to adduce any evidence. When a document is said to be forged and when a party has specifically denied the signature or the thumb impression on that particular document, such party should certainly have an opportunity to send the document to the Handwriting Expert for comparison of the disputed signatures or the thumb impressions. Of course, the evidence of the expert is also not conclusive. The Court has to examine the entire evidence on record, probabilities of the case including the evidence of the Handwriting Expert and on critical analysis it should come to a conclusion. But at the stage of trial of a case, the trial Court must give reasonable opportunity to the parties to adduce evidence. Of course, where the parties are not diligent or intending to protract the litigation, the Court may pass conditional order imposing suitable conditions”.

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13. From a reading of the principles laid down by the Apex Court and this Court in the above referred judgments, it would be very much apparent that the court should not take the responsibility or the task of comparing the admitted writings to find out whether two agree with each other and the prudent course is to obtain the opinion and assistance of an expert.

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14. In the present case, there is a categoric denial by the defendant/petitioner herein in his Written Statement with regard to his signature on Ex.A.2 endorsement. Therefore, the Court below is not justified in rejecting the request of the petitioner to send the document

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for expert’s opinion.

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15. For the foregoing reasons, C.R.P is allowed setting aside the Order dated 23.06.2014 in I.A.No.15 of 2014, and consequently I.A.No.15 of 2014 in O.S.No.25 of 2009 on the file of Court of the Additional Judicial Magistrate of I Class, Miryalguda is allowed. There shall be no order as to costs. As a sequel, miscellaneous petitions, if any, shall stand closed.

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_____________________ JUSTICE A.V. SESHA SAI,

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18^th September, 2014. Js.

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[1] AIR 1979 SC 14

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[2] 2009(1) ALD 265

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[3] 2011 (2) ALD 572

Maram Srinivas v. Nandyala Mangamma

Case brief

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Maram Srinivas v. Nandyala Mangamma

Case brief

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