In the High Court of Judicature at Madras Dated:- 11.07.2008 Coram: The Honourable Mr.Justice M.SATHYANARAYANAN Civil Revision Petition(PD) No.2404 of 2007 and M.P.No.1 of 2007 George D.Corneelius .. Petitioner Versus Rinku A.Shah .. Respondent Civil Revision Petition filed under Article 227 of the Constitution of India against the order and decretal order dated 03.07.2007 in I.A.No.766 of 2007 in O.S.No.7790 of 2005, on the file of the VI Assistant Judge, City Civil Court at Chennai. For Petitioner .. Mr. P.B.Balaji For Respondent .. Mr. T.Srikanth ******* O R D E R
The Defendant in O.S.No.7790 of 2005 on the file of the Court of VI Assistant City Civil Judge, at Chennai is the Revision Petitioner.
2. The Revision Petitioner/Defendant in the suit, has challenged the order dated 3.7.2007 made in I.A.No.766 of 2007, wherein his request for sending the pronote Ex.A1 to Forensic Department to ascertain age of the signatures and date on the front page of the pronote and endorsement on the reverse side of the pronote and also with regard to the alteration in the date from 22.3.2001 to 22.3.2004, has been rejected.
3. The Respondent herein filed the suit for recovery of a sum of Rs.3,20,700/- together with interest on Rs.1,74,000/- at the rate of 30% per annum from the date of plaint till realisation and for costs. It is averred in the plaint that the Revision Petitioner/Defendant had received the value in cash and executed a promissory note in her favour promised to pay her or order on demand, a sum of Rs.1,99,000/- together with interest thereon at the rate of 30% per annum. The Revision Petitioner/Defendant paid a sum of Rs.25,000/- towards principal and also paid interest upto 19.3.2003 and thereafter committed default in payment of principal as well as interest. It is further stated by the Respondent/Plaintiff that after issuing notice, the above said suit came to be filed under Order XXXVII of C.P.C.
4. The Revision Petitioner/ Defendant in his written statement submitted that he never borrowed any amount from the Respondent/Plaintiff and not executed any promissory note in her favour. It is further stated by the Revision Petitioner/Defendant that he was having financial dealings with one Ramniklal for a quite number of years and it was normal practice of Ramniklal to take undated pronote signed by the Revision Petitioner/Defendant and his wife, as security and on some occasions, he would return those pronotes on repayment amount and on some occasions, he would not. It is also stated by the Revision Petitioner/Defendant that the Respondent/Plaintiff by misusing the old pronotes executed by the Revision Petitioner/Defendant in favour of Ramniklal had filed this suit. It is specifically averred by the Revision Petitioner/Defendant that there was dispute between him and the said Ramniklal. The Respondent/Plaintiff colluded together and created a fictitious pronote. The Revision Petitioner/Defendant had taken a specific stand in his written statement that the endorsement regarding payment of Rs.25,000/- on 22.3.2004 was actually made in the year 2001 and not in the year 2004 and there was a material alteration. Therefore, for the said reasons and among other reasons stated in the written statement, the Revision Petitioner/Defendant prayed for dismissal of the said suit.
5. The Revision Petitioner/Defendant after completion of evidence on the Plaintiff’s side, has filed an application in I.A.No.766 of 2007 for sending Exhibit A1 pronote to Forensic Sciences Laboratory for opinion regarding the age of the signatures and the date found on the front page of Ex.A1, the age of the endorsement on the reverse side of the pronote and also the age of the signatures found on the reverse side of the pronote and also with regard to the material alteration of the date from 22.03.2001 to 22.03.2004.
6. The Respondent/Plaintiff filed a counter stating that the suit pronote is a genuine one and the date of endorsement on the rear side of Ex.A1 promissory note will not amount to a material alteration. It is further stated by the Respondent/Plaintiff that the suit documents should not be sent outside the custody of the Court and the expert should come to the Court and inspect the promissory note and take photographs of the same in the presence of the officer of the Court.
7. The trial Court on consideration of the averments made in the application and the counter has dismissed the application holding that the alteration can be proved by evidence and therefore, verification of age and alteration in the year need not be proved by expert opinion. The trial Court further held since the suit is in a part heard stage, the application is unsustainable.
8. Mr.P.B.Balaji, learned counsel appearing for the petitioner has submitted that as regards the genuineness of the Ex.A1 pronote, the Revision Petitioner/Defendant took a stand at the earliest point of time in the form of reply dated 6.10.2005 to the legal notice issued by the Respondent/Plaintiff dated 27.9.2005. The learned counsel appearing for the petitioner also invited the attention of this Court to the averments in the written statement especially to paragraph No.10, wherein it has been specifically averred that there was a material alteration in the date. It is further submitted by the learned counsel appearing for the petitioner that unless Ex.A1 pronote is sent for expert opinion, it is extremely difficult for him to sustain his defence as the Revision Petitioner/Defendant has admitted his signature in the said pronote.
9. Per contra, Mr.T.Srikanth, learned counsel appearing for the Respondent/Plaintiff has submitted that the Revision Petitioner/Defendant has taken a contradictory stand in the written statement. It is further submitted by the learned counsel appearing for the Respondent/Plaintiff that the Court itself can compare the document with other admitted documents and find out the alleged material alteration. It is also submitted that since the pronote has been marked as Ex.A1, it should not be sent outside the custody of the Court and on the said contentions, the learned counsel appearing for the Respondent/Plaintiff prays for dismissal of this Revision Petition.
10. This Court has heard the submissions made by the learned counsel on either side and also perused the typed set of documents. The suit is laid on a pronote. The Revision Petitioner/Defendant had taken such a defence as set out above, at the earliest point of time by sending reply to the legal notice as well as in his written statement.
11. In the judgment reported in 2006(4) CTC 850 – N.Chinnasamy vs. P.S.Swaminathan, this Court had dealt with the principles regarding examination of documents by handwriting expert or other experts vis-a-vis Sections 45 and 73 of the Indian Evidence Act. The Court after analysing all the judgements on that point found the following principles:
“(1) Section 73 of the Indian Evidence Act authorises the Court to compare the disputed signature with the admitted signature in order to come to its own conclusion.
(2)It is always safe for the Court to take the aid of handwriting expert to have the expertise to scientifically compare such handwriting with reasons.
(3)The practice of sending original documents in the Custody of the Courts to the handwriting experts is a highly objectionable one and a very bad procedure.
(4) The proper procedure would be to permit the handwriting to inspect the document in the Court premises itself in the presence of some responsible officers of the Court.
(5) If necessary, the expert may be permitted to have photographic copies of documents in the presence of the responsible officers of the Court.
(6) When examination of the disputed documents within the Court’s premises, is not possible due to genuine difficulties expressed by the expert, the Court has to find out the alternative way of achieving the object for the purpose of doing justice.
(7) In such circumstances as mentioned above, the Application has to be treated as an Application for an appointment of the Commissioner in whose presence the examination of the disputed document has to be conducted by the expert.
(8) When the investigation cannot be conveniently conducted within the premises of the Court and the same has to be carried out in the laboratory of the Forensic Department of the Government of Tamil Nadu, it is necessary to appoint a commissioner to conduct the investigation of the document in his presence.
(9) Filing Application for examination of documents by handwriting expert at a late stage thereby protracting and holding up the proceedings is highly objectionable.
(10) Merely because of the reasons that the Trial Court has by itself compared the admitted signature and the disputed signature invoking Section 73 of the Indian Evidence Act there is no bar or ban for the First Appellate Court for sending the documents to get the expert opinion.
(11) Expert opinions could give much more clarity for arriving at a decision upon the truth and genuineness of a disputed document.
(12)When the defendant denies the signature in a particular document which is very much relied on by the plaintiff, it is for the plaintiff to take steps for examination of the disputed signature by sending the document to a handwriting expert”.
In the said case, the signature in the agreement of sale dated 15.2.1994 was disputed by the defendant and the Court held that it is for the plaintiff who vouches for the genuineness of the document to take steps to send the document for getting opinion of the handwriting expert to prove his case and that the opinion of the handwriting expert alone is not the deciding factor in finding out the genuineness of the sale agreement dated 15.2.1994 and the same could be tested by examining the attesting witnesses and also in some other modes and it is the duty of the plaintiff to establish his case by letting in sufficient oral and documentary evidence.
12. In the case reported in 2007 (2) CTC 364 (SC) – Kalyani Baskar vs. M.S.Sampoornam, relating to sending of the cheque for expert opinion. In the said case the accused had denied her signature on the cheque and her application for send the cheque in question for expert opinion to ascertain the correctness and genuineness of her signature was rejected and the same was confirmed by the High Court also and the matter was taken to Hon’ble Supreme Court of India, by way of Criminal Appeal. The Hon’ble Supreme Court of India, held that purpose of sending the document is to enable the Magistrate to compare the disputed signature or writing with admitted writing or signature of accused in order to reach his own conclusion with assistance of expert and denial to send the document for examination and opinion of handwriting expert amounts to deprival of opportunity to the appellant for rebutting her case. The Hon’ble Supreme Court further held that the denial amounts to unfair trial and fair trial includes fair and proper opportunity allowed by Law to prove innocence. Adducing evidence in support of the defence is a valuable right and denial of that right means denial of fair trial. Ultimately the Hon’ble Supreme Court has allowed the Criminal Appeal and directed the learned Magistrate to take appropriate steps for obtaining the report of handwriting expert on the point whether the signature in the cheque is that of the accused.
13. In the judgment reported in 2001(2) CTC 12 : 2001(2) L.W. 334 – D.Pandi vs. Dhanalakshmi Bank Limited by its Manager, Chennai-102 a Division Bench of this Court by placing reliance upon the Judgment of the Hon’ble Supreme Court of India in Gulzar Ali vs. State of H.P., 1998 (2) SCC 192, has held as follows:-
“In order to prove the identity of the handwriting any mode not forbidden by law can be resorted to. Two modes are indicated by law in Sections 45 and 47 of the Evidence Act, Section 45 of the Act permits expert opinion to be regarded as relevant evidence and Section 47 permits opinion of any person acquitted with such handwriting to be regarded as relevant evidence. In this regard the following conclusion of the Supreme Court in Gulzar Ali v. State of H.P., 1998 (2) SCC 192, is relevant. Their lordships have held that it cannot be said that identity of handwriting of a document can be established only by resorting to one of those two Sections, namely, Sections 45 and 47“.
The Division Bench of this Court in the said Judgment, had taken note of the said judgment and held that though normally the Court should not take upon itself the responsibility of comparing the disputed signature with that of the admitted signature, undoubtedly the Court is competent to compare the disputed signature with the admitted signature in view of Section 73 of the Act. However, if the Court has any doubt, it is incumbent on it, to leave the matter to the opinion of an expert. Keeping the said principles in mind, if the facts stated above are analysed, it is clear that the Revision Petitioner/Defendant at the earliest point of time has disputed the genuineness of the pronote and has filed necessary application before the commencement of evidence on his side. It is to be noted at this juncture that the Revision Petitioner/Defendant had admitted his signature in the pronote and therefore, Section 118 of the Negotiable Instruments Act will come into operation. Therefore, in order to dislodge the presumption cast upon him, it is absolutely necessary on the part of the Revision Petitioner/Defendant to take out such application to send Ex.A1 pronote for expert opinion. The Hon’ble Supreme Court also in the judgment reported in 2007 (2) CTC 364 (SC) – Kalyani Baskar vs. M.S.Sampoornam, has held that the denial to send the document for examination and the opinion of the handwriting expert amounts to deprival of opportunity to the appellant therein for rebutting her case and the denial of the case also amount to unfair trial.
14. If the expert gives opinion on Ex.A1, it may either benefit the Revision Petitioner/Defendant or the Respondent/Plaintiff.
15. As regards the submission made by the learned counsel appearing for the Respondent/Plaintiff that the documents once filed in the Court cannot be sent outside the custody of the Court, this Court in 1996 (1) L.W. 255 – Utham Prabhat Industries, etc. v. P.Subramaniam etc., has held as follows:-
“10. When the very object of examining the disputed documents within the Court premises is not possible due to the genuine difficulties expressed by the expert, certainly the Court has to find out the alternate way for achieving the object for the purpose of doing justice. …”
“12. In the result, Thiru B.Namasivayam, is appointed as Commissioner, in whose presence the disputed documents have to be examined by the handwriting expert, deputed by the Director of the Forensic Science Department, Mylapore, Madras-4, Rs.2,000 is fixed towards the remuneration of the Commissioner payable to him direct by the plaintiff/applicant. The documents can be handed over to the Commissioner for production before the expert for the investigation, subject to the following conditions:
(1)The disputed original documents, sought to be examined, shall be photocopied before the Second Assistant Registrar (Original Side) before handing over the same to the Commissioner. These photocopies will be retained in the Court along with the case papers.
(2)The Commissioner shall address the Director of the Tamil Nadu Forensic Science Department, Mylapore, Madras to fix a date and time for the examination of the documents in his presence, as per the orders of this Court, and after fixing the time, he shall receive the Court records either on the same day or one day in advance, from the Court.
(3)A list will be prepared for the original disputed documents and the documents given for comparison to be delivered to the Commissioner and the same shall be signed by the Advocate Commissioner.
(4)The disputed original documents and the documents given for comparison with the sample signatures or hand-writings, will be enclosed in two separate envelopes and sealed in the presence of the Commissioner, who has to acknowledge the contents of the envelopes and also the receipt of the same. These two sealed covers and the letter of requisition of the Second Assistant Registrar (Original Side) with a sample seal, shall be enclosed in another cove, which will also be sealed in the presence of the Commissioner, to whom this cover will be delivered by the Second Assistant Registrar (Original Side).
(5)The Commissioner shall deliver this envelop to the Director, Tamil Nadu Forensic Science Department, Mylapore, Madras, and be present in the place of investigation of this documents throughout to ensure that the examination of the documents, including the photocopying, was done in his presence. After the examination of the documents is over, the office of the Director, Tamil Nadu Forensic Science Department, shall enclose the documents in a sealed cover with their covering letter and hand over to the Commissioner, who has to return all the documents received by him to the Second Assistant Registrar (Original Side).
(6)The Director, Tamil Nadu Forensic Science Department, Mylapore, shall send his report after the investigation, recording his opinion, in a sealed cover, direct to the Second Assistant Registrar(Original Side) of this Court. As fixed originally, the Director, Tamil Nadu Science Department, is entitled to Rs.1,000 towards his remuneration”.
16. In the Judgment reported in 2006(4) CTC 850 – N.Chinnasamy vs. P.S.Swaminathan, this Court has considered the principles regarding examination of document by handwriting expert and other expert and also refer to previous judgments on that point. After consideration of the earlier judgments, the Court held that if the petitioner wants to have the documents examined by fingerprint expert, it is open to him to summon the fingerprint expert for examination of the disputed document and to have photocopies for the purpose of investigation.
17. In the light of the principles laid down in the said judgment, it is open to the Revision Petitioner/Defendant to summon the expert to the Court to have the documents examined and to have photocopies of the same for the purpose of investigation. If the expert feels any difficulty, then the procedure contemplated in the judgment reported in 1996 (1) L.W. 255 – Utham Prabhat Industries, etc. v. P.Subramaniam etc., can be followed.
18. In the result, this Civil Revision Petition is allowed and the impugned order passed by the trial Court is set aside. But in the circumstances, there will be no order as to costs.
gr.
To
The VI Assistant Judge, City Civil Court,
Chennai