IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :17.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.NO.50 OF 2002 and C.M.P.No.14458 of 2005 K.Maniamma ... Appellant Vs. S.V.Govindaraju ... Respondent Appeal suit filed under Section 96 of the Civil Procedure Code, 1908 against the judgment and decree dated 28.8.2001 in O.S.No.326 of 1996 on the file of the Subordinate Court, Hosur. For appellant : Mr.R.Margabandhu For respondent : Mr.V.Nicholas J U D G M E N T
The appellant/defendant has filed this appeal as against the judgment and decree dated 28.8.2001 made in O.S.No.326 of 1996 on the file of Sub Court, Hosur.
2.The short facts of the respondent/plaintiff’s case are as follows:
The appellant/defendant has borrowed a sum of Rs.4,00,000/- from the respondent/plaintiff on 04.09.1992 and executed a pronote promising to repay the same with interest at 18% per annum to the respondent/plaintiff are to his order and that the appellant/defendant has received the consideration in cash in the presence of attestors and scribe of the promissory note. The appellant/plaintiff in order to discharge the debts incurred in connection with the purchase of property in her name and to run a hotel business has borrowed the money.
3.The appellant/defendant has not paid the principal or the interest amount. The respondent/plaintiff has caused a legal notice on 03.6.1995 calling upon the appellant/ defendant to pay the due amount under pronote. The appellant/defendant has issued a reply stating that the suit pronote is a forged one and that she has not executed any pronote and further that she received a sum of Rs.20,000/- and Rs.1,20,000/- in the year 1992 from the respondent/plaintiff. In another notice dated 20.05.1995 the appellant/defendant has mentioned about the business and other transactions between the respondent/plaintiff and the appellant/defendant’s husband. The respondent/plaintiff has convened a panchayat comprising of Muthukrishnan, Muniyandi Vilas Ramachandran, Paramasivam, Sadiq, Thennai Ganeshan and others and before the Panchayators, the appellant/defendant has agreed to pay the amount but has not paid the amount. Therefore, the suit is filed for recovery of a principal sum of Rs.4,00,000/- and an interest sum of Rs.1,08,000/- (for the period from 04.9.1992 to 03.9.1995 at 9% per annum for Rs.4,00,000/-) totalling in all a sum of Rs.5,08,000/- together with interest at 9% per annum from the date of filing of the suit and with costs.
4.The appellant/defendant in the written statement has taken the pleas that she has no debts to discharge and not in requirement of any amount to run the hotel business and further that she has not executed the pronote and has not received the sum of Rs.4,00,000/- from the respondent/ plaintiff and that suit pronote is a forged document not a true and genuine one and moreover, the signature of the appellant/defendant in the suit pronote is not that of her and that she has not affixed a signature in the suit pronote and inasmuch as the same is not a valid one, she is not entitled to claim the suit amount etc.
5.It is also the stand of the appellant/defendant that the respondent/ plaintiff has no means to pay such a huge amount of Rs.4,00,000/- to her and the fact is that the respondent/plaintiff and her husband Kannan have been running a non-vegetarian hotel as partners at Hosur and due to some misunderstanding the partnership has been desolved in 1987 and the hotel business cannot be continued and then, her husband Kannan has been running the non-vegetarian hotel in the name of ‘Sri Venkateswara Tea Centre’ at the near Bangalore Road near the old bus stand and that the respondent/plaintiff has been running a separate non-vegetarian hotel under the name of ‘Poornima’ in Hosur Town and that her husband Kannan died on 04.11.1992 and after his demise the appellant and her sons have continued to run the hotel of ‘Venkateswara Tea Centre’ at the same place and that she has purchased a house in Survey No.367/1 at Mookandavalli Village, Sipcot, Hosur on 29.1.1986 and after purchase, she has obtained a loan of Rs.60,000/- from the Co-operative Housing Society and utilising her savings she has constructed a terrace house in the building.
6.Added further, it is the contention of the appellant /defendant that the respondent/plaintiff’s wife has purchased the adjacent site and she has constructed a house therein by obtaining a loan and after constructing the said house the appellant at the suggestion of the respondent/plaintiff has rented it to his brother in loan and that the appellant and her husband Kannan have been repaying the loan to the Co-operative Society in instalments and after the appellant’s husband died on 04.11.1992, his L.I.C. Policy which has been given to the housing society as security has been realised and an amount of Rs.53,000/- therefrom has been credited to the Co-operative Housing Society and that the appellant’s loan has been cleared and subsequently, the appellant has been requesting the respondent/plaintiff to get the house vacated from his brother-in-law Anbazhagan and that the respondent/plaintiff and his brother-in-law have been postponing to do the same and in January 1994 the respondent/plaintiff wanted the appellant/defendant to sell the said house to him and a sale price has been fixed at Rs.2,60,000/- in the presence of Kumaresan, Anvar Bai, Muniappan and others and the respondent/plaintiff has paid a total sum of Rs.2,00,000/- to the appellant/defendant towards the sale price of the said house and on 13.06.1994 he has prepared a document and without reading out the contents has obtained an appellant’s signatures and registered the same and later the appellant has come to know that the said document has been executed for Rs.30,000/- that to in respect of the site alone and not the building and later the appellant has been demanding the respondent/plaintiff to pay a sum of Rs.60,000/- to her through mediators Muthukali, Auditor, Kumaresan and others and inspite of the demand the respondent/plaintiff has not paid the said sum of Rs.60,000/- to the appellant/defendant and cheated her of the said sum and to wreck vengence on the appellant/defendant, the respondent/plaintiff appears to have fabricated the suit pronote showing as if the appellant has borrowed a sum of Rs.4,00,000/- from him.
7.Apart from the above, when the respondent/plaintiff and the appellant/defendant’s husband Kannan have been running the hotel business and got separated, accounts have been taken and it has been found that the respondent /plaintiff has to owe a sum of Rs.1,40,000/- to the appellant’s husband Kannan and further that the respondent/ plaintiff has not paid the sum of Rs.1,40,000/- to the appellant/defendant’s husband Kannan and only in October 1991 when the appellant’s husband has fallen sick and has been admitted in Meerabai Nursing Home, Hosur, the respondent/plaintiff has paid a sum of Rs.20,000/- and he has to pay a balance of Rs.1,20,000/- and in July 1992 he has paid the said sum of Rs.1,20,000/- and other than the transaction in regard to the sale of the said house, there has been no other transactions between the respondent/ plaintiff and the appellant/defendant and after the appellant’s husband’s death on 04.11.1992, taking advantage of the fact that the appellant/defendant is a young widow without any help etc., the respondent/plaintiff has been trying to get her under his control for which the appellant has not been willing and therefore, the appellant has been demanding the respondent/plaintiff to pay the balance of sale consideration of Rs.60,000/- for the sale of her house and therefore, the respondent/plaintiff has forged and fabricated the suit pronote and in fact, there has been no occasion for the appellant/defendant borrow a sum of Rs.4,00,000/- in September 1992 and moreover, the respondent/plaintiff has no means to pay Rs.4,00,000/-.
8.A plea has also been taken on the side of the appellant/defendant that the suit pronote is not supported by consideration and that the respondent/plaintiff cannot enforce the same. Besides this, there has been no Panchayat and the appellant/defendant never appear before the Panchayators at any time and she has never agreed to pay the amount in instalments and in any event, the Panchayators have not mediated nor held any Panchayat.
9.Before the trial Court, on the side of respondent/ plaintiff witnesses P.W.1 to P.W.3 have been examined and Exs.A.1 to A.8 have been marked. On the side of appellant/ defendant witnesses D.W.1 and D.W.2 have been examined and Exs.B.1 to B.8 have been marked. Also Exs.C.1 to C.3 have been marked.
10.The trial Court has framed in all four issues for determination of the case. The trial Court on an appreciation of oral and documentary evidence available on record has come to the resultant conclusion that the respondent/plaintiff is entitled to the decree has prayed for with costs and accordingly, passed a decree.
11.The points that arise for determination in this appeal are:
1.Whether the appellant/defendant has executed the Ex.A.1 pronote dated 04.09.1992 in favour of the respondent/plaintiff on receipt of consideration of Rs.4,00,000/- together with interest at 18% per annum?
2.Whether the suit pronote Ex.A.1 dated 04.09.1992 is a concocted one?
3.Whether the respondent/plaintiff is entitled to claim the suit amount as prayed for?
12.Finding on Point Nos.1 to 3:
According to the learned counsel for the appellant/defendant, the trial Court has not taken note of the discrepancies in the deposition of P.W.1 to P.W.3 in regard to the alleged execution of Ex.A.1 suit pronote by the respondent/plaintiff and further the trial Court has not considered the admission made by P.W.1/plaintiff that he has no means to lend a sum of Rs.4,00,000/- in a proper perspective and added further, the trial Court has not appreciated the appellant/defendant producing the accounts in respect of the partnership hotel business in the name of Venkateswara done by the appellant/defendant’s husband and the respondent/plaintiff and the writing are in the name of respondent/plaintiff and as a matter of fact, the P.W.1/plaintiff in his cross examination has admitted that Ex.B.1 dated 28.07.1989 is in his own handwriting which probablises the case of the appellant and further the P.W.1 has admitted that the house has been sold by the appellant/defendant to the respondent/ plaintiff for a sum of Rs.2,60,000/- which also probablises the case of the appellant/defendant that when the appellant/defendant has requested the respondent/plaintiff to pay the balance of Rs.60,000/- out of Rs.2,60,000/- and therefore, the respondent/plaintiff has got angry with a malafide intention has fabricated the Ex.A.1 suit pronote and has filed the recovery of the suit amount and these aspects have not been looked into by the trial Court in a proper manner and if really the respondent/plaintiff has lent a sum of Rs.4,00,000/- to the husband of the appellant then the respondent/plaintiff ought to have obtained the signature of the husband of the appellant in the pronote and not from the appellant/defendant alone or the respondent/plaintiff should have obtained the signature of the appellant/defendant and also her husband Kannan and not from the appellant/defendant alone and also that the P.W.1/plaintiff has made an admission that it is only the appellant/defendant’s husband has demanded the amount and therefore, the case of the respondent/plaintiff as if he has obtained the signature of the appellant/defendant alone in regard to the purported loan transaction is an unnatural one and in short, there is no clear cut evidence in regard to the date and time of execution of suit promissory note and in the absence of any evidence that the appellant/ defendant has required any amount from the respondent/ plaintiff as on 04.9.1992 then the trial Court ought not to have believed the execution of pronote and indeed Exs.B.5 and B.6 Bank Passbooks of the appellant have not been appreciated by the trial Court properly and moreover, the trial Court has committed an error in rejecting the evidence of D.W.2 the handwriting Expert and the cross examination of D.W.2 an Expert indicates that the respondent/plaintiff has challenged the deposition expert only in regard to subject signature and the trial Court has not not taken judicial note that D.W.2 is a well known handwriting expert who has tendered evidence in various Courts in Tamil Nadu for the past three decades and after rejecting the evidence of D.W.2 expert, the trial court has taken the role of an expert to come to a wrong conclusion that the signature in Ex.A.1 pronote is that of the appellant/defendant by means of comparison of the same with the signatures of the defendant in Exs.A.6 and A.8 and the trial Court has not considered the legal bar under the I.T. Act for having it transaction in cash if the same is Rs.20,000/- and therefore, prays for allowing the appeal in the interest of justice.
13.Contending contra, the learned counsel for the respondent submits that the trial Court has come to the conclusion that the Ex.A.1 suit pronote has been supported by a due consideration and the same has been executed by the appellant/defendant and in fact the trial Court has compared the signature found in Ex.A.1 with that of the admitted signatures of the appellant/defendant in Exs.A.6 and A.8 and in law the trial Court is empowered to compare the signatures with its own eyes and that the trial Court has considered all the materials in the case and therefore, the appeal preferred by the appellant has to be dismissed by this Court to promote substantial cause of justice.
14.It is useful to refer to the evidence of P.W.1/ plaintiff who has deposed that the appellant/defendant’s husband has worked along with him at Bangalore earlier and that he has lent a sum of Rs.4,00,000/- to the appellant/ defendant on 04.9.1992 for which the appellant has executed Ex.A.1 pronote and that the said pronote has been written in his house by one Jayaprakash and that the appellant/ defendant’s husband has brought the witnesses Ramachandran and Paramasivam and that the witnesses have signed the appellant affixing a signature in the pronote and further that the appellant has also seen the witnesses signing in the pronote and the appellant/defendant has asked for the amount from him with a view to purchase a place near the appellant’s house and at that time the appellant and her husband have been present and after the receipt of money two months later the appellant’s husband has expired and in 1993 the appellant has purchased that place and that the witnesses in Ex.A.1 pronote are in Hosur and that the Jayaprakash who wrote the pronote has expired and that the appellant/defendant has obtained a loan for laying the foundation to her house and the same has been discharged as per Ex.A.6 and since the appellant’s husband is a friend to him, he has claimed only an interest of 9% per annum even though the agreed rate of interest is at 18% per annum.
15.It is the evidence of P.W.1 (during his cross examination) that he has written Ex.B.1 and the house value is mentioned as Rs.2.75 lakhs and a sum of Rs.15,000/- has been deducted and the balance of Rs.2.60 lakhs has been returned and he has not asked the appellant’s husband to jointly execute the pronote along with the appellant and further he has not obtained the witness signature of the appellant’s deceased husband Kannan and no Panchayat has been convened requiring him to pay a sum of Rs.60,000/- to the appellant/defendant and that the write of the pronote Jayajprakash on enquiry is said to have died in the year 1996 and the appellant’s husband is the family head and the appellant has come along with her husband Kannan at the time of asking for the money of Rs.4,00,000/- in connection with the shop expense and towards purchase of the house and she has asked the same one month prior execution of the pronote and that he has received a sum of Rs.10,00,000/- in 1992 by selling the land and it is in correct to state that the signature in Ex.A.1 is not that of the appellant etc.
16.P.W.2 has deposed that in Ex.A.1 the signature of the appellant is found and that he has also signed in the pronote and witness Ramachandran has also signed and further the pronote writer has also signed and he along with Ramachandran (another witness) has seen the appellant affixing a signature in the pronote and the appellant has seen him when he has signed in the pronote and that the respondent/plaintiff has given the amount to the appellant’s husband and in Muthukrishnan’s building a Panchayat has taken place in which Muthukrishnan, Nandiswaran, Sadiq and himself have participated and in the Panchayat the appellant has agreed to pay the amount.
17.P.W.3 in his evidence has stated that during the month of September 1992 the appellant’s husband Kannan has come and informed him that towards purchase of land he has to receive money from the respondent/plaintiff and the appellant’s husband has received the amount from the respondent/plaintiff and the appellant’s husband at first has gone to the house of respondent/plaintiff and later he, Paramasivam and Jayaprakash has gone to the house of respondent/plaintiff and in the respondent/plaintiff’s house, the respondent/ plaintiff, appellant/defendant and her husband Kannan have been present and the pronote has been written by Jayaprakash as directed by the appellant’s husband Kannan in which the appellant has signed and he has seen the same and also that Paramasivam has signed and later he has signed and moreover, the pronote writer has also signed and the signature of K.Kanniamma in the pronote is written by her and that the respondent/plaintiff has given the money to the appellant’s husband at that time the appellant has been present near her husband Kannan and the rate of interest has been mentioned by the said Kannan and that the appellant and her husband after receiving the money have gone away and in Panchayat the amount has not been settled.
18.D.W.1/appellant in her evidence has stated that she has not received any amount from the respondent/plaintiff and it is not correct to state that she has received consideration in the presence of witnesses Ramakrishnan, Paramasivam and executed a pronote and her husband Kannan has not been present at the time of execution of pronote and therefore, the pronote has been a fabricated one and moreover, the respondent/plaintiff has no means to lend a sum of Rs.4,00,000/- in one lumpsum.
19.The evidence of D.W.2 is to the effect that in the year 1996 at Mukkonda Palli Village she has purchased a house site and at that time the respondent/plaintiff also has purchased a house site near her house site and she has obtained a loan of Rs.60,000/- from the Co-operative Housing Society and finished construction of the house in the year 1986 and at that time the respondent/plaintiff has also constructed a house and occupied the same and in her house she inducted a tenant Anbazhagan, the respondent/ plaintiff’s relative and she has discharged a loan of Rs.60,000/- with the building society from and out of the policy amount she has received and she has received from Chettiar a sum of Rs.50,000/- as loan for constructing a house and she has also to pay a sum of Rs.50,000/- to the Canara Bank and therefore, to discharge the said loans in the year 1989 she indulged in sale tax for selling her house for consideration of Rs.2,65,000/- and in connection with the same the respondent/plaintiff has given Ex.A.2 chit and she has not sold her house to the respondent/ plaintiff and she has sold the said house in the year 1994 to the respondent/plaintiff, in the name of respondent/ plaintiff’s wife’s name as per Ex.A.7 and in Ex.A.7 it is mentioned as house site which is not correct and she has been asking the respondent/plaintiff to pay the amount of Rs.60,000/- due to her and when her husband has been under treatment in Meerabai Hospital at that time the respondent/plaintiff has given her a sum of Rs.20,000/- and in July 1992 he has paid her a sum of Rs.1,20,000/-.
20.D.W.1 in her cross examination has stated that she knows English to put a signature only and that she cannot read English and the signature in Ex.A.6 and A.8 are not in same fashion and after the death of her husband the respondent/plaintiff has compelled her to come under his control and during the year 1993 the respondent/plaintiff has to give her a sum of Rs.60,000/-.
21.D.W.2 (Handwriting and Finger Print Expert) in her evidence has deposed that she is a Handwriting and Finger Print Expert with an experience of 28 years and that she has received training from her father who has also done the same and she has taken a photo of the signature found in Ex.A.1 suit pronote and she has also taken photos of the admitted signatures in Exs.A.6 and A.7 and also that she has received the sample signatures sent from the Court and the samples sent from the Court is Ex.C.1 and the disputed signature in Ex.A.1 when compared with that of the admitted signatures has not been signed by the appellant and therefore, the signature in the disputed document is a forged one and the report is Ex.C.3 and the signatures in S.1 to S.16 as Kanniamma has not signed the signature in Ex.A.1.
22.The trial Court in para 10 of its judgment has opined that ‘D.W.2 (Expert) has not stated that basically she has expert knowledge and therefore, she cannot be construed as a handwriting expert and further that the Ex.A.1 pronote has been proved as per the evidence of P.W.2 and P.W.3 and moreover, the admitted signatures of the appellant/defendant when compared with the signature of Ex.A.1 pronote with that of the signature of the appellant in other documents since the aforesaid signatures have been affixed with an interval of few years the signature of the appellant/defendant in Ex.A.1, A.6 and A.8 has been signed by the same person viz., the appellant/defendant and decided accordingly.’ At this stage, the learned counsel for the appellant contends that D.W.2 (Handwriting Expert) has 28 years of experience in the handwriting and finger print field and that she has taken training from her father who has also practised the same avocation and therefore, the observation of the trial Court that D.W.2 has not stated that she is in possession of expert knowledge is incorrect one in the eye of law. Added further, it is the submission of the learned counsel for the appellant/ defendant that no suggestion has been put to D.W.2 Expert that she is not a competent handwriting expert and her veracity of evidence has not been suspected and in fact, D.W.2 the Expert in a report in Ex.C.3 has come to the categorical conclusion that the disputed signature D has been compared with that of the admitted and specimen signatures S.1 to S.16 mentioned in the report and on comparison the disputed signature shows signs of forgery and this evidence of the D.W.2 ought to have been taken note of by the trial Court and moreover, the trial Court should have dismissed the suit after holding that the suit pronote is a forged one, but the same has not been resorted to by the trial Court and therefore, the view of the trial Court in this regard has to be corrected by this Court.
23.In support of his contention that D.W.2 Expert’s evidence ought to have been taken into account by the trial Court while deciding the case, the learned counsel for the appellant cites the decision of Hon’ble Supreme Court in State of Maharashtra V. Sukhdeo Singh and another AIR 1992 Supreme Court 2100 wherein it is inter alia held as follows:
“A handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of finger-prints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the court has to decide in each case on its own merits what weight it should attach to the opinion of the expert. In the instant case the opinion evidence of handwriting expert was not so high as to commend acceptance without corroboration.”
24.He also seeks in aid of the decision of Hon’ble Supreme Court in Fakhruddin V. State of Madhya Pradesh 1967 MLJ at page 925 and 926 whereby it is observed as follows:
“Evidence of the identity of handwriting can be adduced in one of three ways. Proof of a writing by the admission of the writer or by the evidence of some one in whose presence he wrote is called direct evidence and is the best method of proof and if such evidence is available evidence of any other kind becomes unnecessary. But the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of persons familiar with the handwriting of that individual (section 47) or by the testimony of an expert (section 45). A third method (section 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 sections 45 and 47 of the Evidence Act the evidence is an opinion, in the one case by scientific comparison and in the other by familiarity resulting from frequent observation 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 writing and to compare then with the disputed ones in order to satisfy itself on its own observation whether it is safe to accept the opinion of the expert or other witnesses. Thus in such cases the Court is not itself playing the role of an expert but is only coming to its own conclusion, with the assistance of the expert, whether it can safely be held that the two writings are by the same person.
(In the instant case the supreme court itself sent for the different writings to verify by its own observation whether the conclusions of the handwriting expert were proper or not)”
25.Continuing further, he draws the attention of this Court to the decision of Hon’ble Supreme Court in Murarilal V. State of Madhya Pradesh AIR 1980 Supreme Court 531 at page 532 wherein it is laid down as follows:
“There is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases, where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which in the ultimate analysis, is no more than a question of testimonial weight.”
26.Also he cites the decision of Hon’ble Supreme Court in O.Bharathan V. K.Sudhakaran AIR 1996 Supreme Court 1140 wherein it is among other things held that ‘comparing of disputed signatures on counterfoils by High Court Judge without aid of expert or person conversant with disputed signatures is illegal.’
27.Per contra, the learned counsel for the respondent submits that D.W.2 though she has 28 years experience in the field of handwriting and finger print and further that she has undergone training with her father yet she is not possessing the qualification of an Expert and therefore, rightly the trial Court has not considered. D.W.2 as an Handwriting and Finger Print Expert.
28.It is to be noted that a Court of law ought not to blindly accept a report of an expert. Admittedly, an opinion of handwriting Expert is not conclusive but it cannot be brushed aside so lightly. No wonder, the ingredients of Section 45 of the Indian Evidence Act do not say that an Expert must hold an academic degree or belong to a particular profession. However, a specialised knowledge or experience acquired will suffice in the considered opinion of this Court. It is to be borne in mind that an evidence of an Expert is only an opinion and cannot take the place of substantive evidence, unless corroborated by a direct or circumstantial evidence. Also it is open to a Court of law to prefer the evidence of one Expert to that of another and moreover, it will not be improper to act on an opinion of one Expert, although it is contradicted by another Expert. No doubt, an Expert evidence must be received with caution a conclusion based on mere handwriting is generally indecisive. An handwriting Expert opinion like any other Expert opinion must be given weight and considered when it is corroborated by other evidence.
29.In Ex.C.3 opinion report dated 27.8.1998 of D.W.2-Expert, it is mentioned as follows:
"I have carefully examined the admitted and specimen signatures of the Defendant K. Kanniamma. In the mortgage deed marked as S1, S2, S3, S4 signatures in the registered document as S5, S6 in the other registered document as S7, S8, specimen and admitted signatures are compared inter se. Admitted signatures S1 to S4 are made in the year 1986, signatures S5 to S8 in the year 1994, specimen signatures in the year 1998. The disputed signature in the year 1992. The disputed signature is carefully examined and marked as D. The disputed signature D is made in the revenue stamps. The disputed signature D, admitted and specimen signatures S1 to S6 are photographed and enlarged the same. Enlarged photographs are herewith enclosed. On inter se comparison of the admitted and specimen signatures S1 to S16 shows that there is fluency in the signatures marked S5 to S16 due to lapse of time. The disputed signature D is compared with that of the admitted and specimen signatures S1 to S16. On comparison the disputed signature shows signs of forgery. There is drawn and unnatural movement in D. There is no freedom of movement in D. The signature D is made slowly and consciously. There is hesitation in D. The pictorial appearance of D is different from that of S1 to S4. In the signer D the individuals characteristic differs from that of S1 to S4. There are calligraphic differences in D with that of S1 to S16. There are significant differences in D with that of S1 to S16. In the initial letter 'K' the initial stroke is straight in D but slanting in S1 to S16. In the initial letter 'K' there is penlift at the right side stroke in D but not so in S1 to S16. The length of the initial stroke is shorter in D then the length in S1 to S16. The ending stroke of the letter 'K' ends blunt in D but not so in S1 to S16. In the letter 'K' (K in the signature) the right side stroke is longer than the left side stroke then the signatures S1 to S16. In the letter 'a' there is a pen lift at the ending stroke in D but not so in S1 to S16. The formation of the letter 'n' (both 'n') in D differs from that of S1 to S16. In the letter 'r' there is retraceing in D but not so in S1 to S16. In the letter 'a' there is a bend the left side in D but not so in S1 to S16. In the letter 'a' the ending stroke ends blunt in D but not so in S1 to S16. In the letter 'm' the formation in D differs from that of S1 to S16. In the letter 'm' the right side stroke is a curve D but not so in S1 to S16. In the letter 'a' there is a tremor in the ending stroke but not so in S1 to S16. The signature D is a freehand forgery. For the above said reasons, I am of the opinion that the signature D is not made by the person who made the admitted and specimen signatures S1 to S16 namely K. Kanniamma." Signed (EXPERT)" 30.This Court recalls the decision in Devaraju Padayachi V. Sivasanakara Padayachi (2004) 4 M.L.J. at page 604 at 605 wherein it is observed that 'in cases where signatures in a document are disputed, expert opinion will give much more clarity for arriving at a decision upon the truth and genuineness on the disputed document.' 31.In another decision of this Court in Venkatalakshmiah V. Venkatappa and another AIR 1991 Madras 399 it is held as follows:
“It is not essential that the handwriting expert must be examined to prove or disprove a writing and that the Court is competent to compare the disputed writing with an admitted writing. But that does not mean that in no case, the Court can allow a party to establish his case by having the disputed handwriting examined by a Handwriting Expert. May be the Court can also do the comparison of the disputed signature with any admitted signature and arrive at a decision in that regard. But, when the defendants choose to have the benefits of the Handwriting Expert also to prove their case, they cannot be prevented unless their attempt is very much belated or with any ulterior motive, particularly so, if the attestor has gone to the extent of disposing that the signatures found in his Vakalat and plaint are not his.”
32.In the decision in M.Molayappa Gounder V. M.Subramanian (2007) 6 MLJ 1014 at 1015 it is laid down as follows:
“When the opinion of the handwriting expert, which is done is a scientific manner, is adverse to the plaintiff in the suit for recovery of money on the basis of a promissory note and the evidence of the attesting witness also does not support the case of the plaintiff, then the suit is liable to be dismissed.”
33.In the decision D.Pandi V. The Dhanalakshmi Bank Limited by its Manager, Madras (2001) 1 MLJ at page 750 at page 751 it is held as follows:
“It is true that in order to find out the genuineness of the signature, it is but proper for the Court to get the opinion of the expert. However, the court is of the view that Sec.73 enables the Court to compare the disputed signature with the other admitted or proved signature. No doubt, the Court can also direct the concerned person present in the Court to write any words or figures for the purpose of enabling the Court to compare the words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. [Para. 13]
It is clear 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 Sec.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. The learned counsel for the appellant has contended that P.W.1 is not familiar with the signature of the 2nd defendant. The requirement of Sec.67 of the Act is only that handwriting of a person must be proved to be his handwriting. 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 Secs45 and 47 of the Act. Sec.45 permits expert opinion to be regarded as relevant evidence and Sec.47 permits opinion of any person acquainted with such handwriting to be regarded as relevant evidence.”
34.In (2000) II MLJ at page 154 Jabirunnisa Bi V. Kasi Naicker this Court has held that ‘Court cannot compare the signatures and comparison to be made on the basis of admitted signatures.’
35.It is apt for this Court to point out the decision in G.Vasu V. Syed Yassen Sifuddin Quadri AIR 1987 Andra Pradesh 139 at page 148 and 149 it is observed as follows:
“… where in a suit on a promissory note, the case of the defendant as to the circumstances under which the promissory note was executed is not accepted, it is open to the defendant to prove that the case set up by the plaintiff on the basis of the recitals in the promissory note, or the case set up in suit notice or in the plaint is not true and rebut the presumption under S.118 by showing a preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration whatsoever. The words ‘until the contrary is proved ‘in S. 118 do not mean that the defendant must necessarily show that the document is not supported by any form of consideration but the defendant has the option to ask the Court to consider the non-existence of consideration so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that consideration did not exist. Though the evidential burden is initially placed on the defendant by virtue of S.118 it can be rebutted by the defendant by showing a preponderance of probabilities that such consideration as stated in the pronote, or in the suit notice or in the plaint does not exist and once the presumption is so rebutted, the said presumption ‘disappears’. For the purpose of rebutting the initial evidential burden, the defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convicting rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the plaintiff who has also the legal burden. Thereafter, the presumption under S.118 does not again come to the plaintiff’s rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance.
…. merely because of the plaintiff comes forward with a case different from the one mentioned in the promissory note it will not be correct to say that the presumption under S.118 does not apply at all. In our view the presumption applies once the execution of the promissory note is accepted by the defendant but the circumstance that the plaintiff’s case is at variance with the one contained in the promissory note or the notice can be relied upon by the defendant for the purpose of rebutting the presumption and shifting the evidential burden to the plaintiff who has also the legal burden. To the above extent, we agree with the view of the Bombay High Court in Tarmahomed’s case, (AIR 1949 Bom 257) (supra). Our dissent is only to the extent of the principle laid down in that case that even when the case of the plaintiff and that of the defendant is disbelieved still the suit is to be decreed on the basis of the presumption under S.118 of the Negotiable Instruments Act.”
36.Be that as it may, the term ‘Expert’ has been indirectly defined as ‘persons specially skilled’ in foreign law, science or art or in question as to identity of handwriting or finger impressions. It is not out of place for this Court to point out that in the decision Sri Chand Batra V. State of Uttar Pradesh AIR 1974 SC 639 the Hon’ble Supreme Court has held that ‘an Exercise Inspector who has put in 21 years service as such and had tested lacs of samples of liquor could be treated as an Expert within the meaning of Section 45 of the Indian Evidence Act. Indeed, Article 49 of Stephen’s Digest runs as follows:
‘when there is a question as to any point of science or art, the opinions upon that point of persons specially skilled in any such matter are deemed to be relevant facts.’
Such persons are hereinafter called Experts. As a matter of fact, the words ‘science or art’ include all subjects on which a course of special study or experience is necessary to the formation of an opinion, and amongst others the examination of handwriting.
37.It is needless to state that an Expert is one who has acquired special skill or knowledge or experience in any branch of science, trade, art or profession. This Court recalls the observations made in the decision U.S. Shipping Board V. St. Albans AIR 1931 PC 189 whereunder it is held that ‘a person can be accepted as an Expert if he has made a special study of the subject or acquired a special experience therein.’ After all, a Court of law/Judge has to decide where an individual propose to be an Expert is really so taking into account his skill, special study and experience. He may not have acquired the same professionally (In re Oil 1976 Crl.J 1339). However, one can acquire expert knowledge in a particular sphere through repeated contact with it in the course of one’s work not withstanding that the expertise is covered from experience and not from formal training as per decision R V. Murphy (1980) 1 QB 434. All the attending circumstances will have to be borne in mind before the opinion of any Expert is accepted. Opinion of other of the two Experts ought not to be preferred based on conjectural reasons. But if the difference between the two experts is purely of scientific character, a Court of law before accepting one, must characterise the other as partial after assigning scientific reasons as held in F. Hector V. R AIR 1937 All 182. It is always open to a Court/Judge to prefer the evidence of one Expert to that of another and it would not be improper to act on the opinion of one Expert although it is contradicted by another Expert as laid down in Joyce V. Yeomars (1981) 1 W.L.R. 549.
38.It is true that an Expert witness in an adversary litigation can furnish information to the Judge on matters calling for expertise, in the considered opinion of this Court. It is useful to refer to the decision of Hon’ble Supreme Court between State (Delhi Administration) V. Pali Ram AIR 1979 SC 14 whereunder it is held as follows:
‘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.’
When the evidence of handwriting expert is not corroborated, the Court can furnish corroboration by comparing the handwriting and come to a conclusion, in the considered opinion of this Court. When an Expert opinion is given, it is the paramount duty of the Court to see for itself and with the assistance of an Expert come to its own conclusion whether it can safely be held that the two writings are by the same person. The handwriting expert’s function is to opine after scientific comparison of the disputed writing with the proved or admitted writing in regard to the points of similarity and dissimilarity in the two sets of writing, the Court must then compare the handwriting with its own eyes for a proper assessment of the value of the total evidence.
39.Suffice it to point out that the opinion of Handwriting Expert may be relied upon along with various items of external and internal evidence pertaining to a document in issue. Notwithstanding the fact that there is no legal bar to a Judge employing his own eye to compare the disputed writing with the admitted writing, even without the aid of the evidence of any Handwriting Expert, the Judge must as a matter of prudence and caution hesitate to cement his findings in regard to the identity of handwriting and as such, it is not advisable that a Judge who take upon himself the task of comparing the admitted writing with the disputed one in order to find out whether the two agree with each other and prudent course is to get the opinion and assistance of an Expert.
40.As far as the present case is concerned, the observation of the trial Court in its judgment in Para 10 to that effect that ‘D.W.2 (Expert) has not stated that basically she has expert Knowledge and therefore, she cannot be construed as an Expert’ and this observation is per se an incorrect one, in the eye of law, in the considered opinion of this Court since D.W.2 has acquired 28 years experience in the field of identifying handwriting and finger impressions and therefore, she can safely be treated as an Expert because of the simple fact that she has acquired a special skill in issues as to the identity of handwriting or finger impressions and to offer her opinion in this regard.
41.Besides this, D.W.2 in her Ex.C.3 report has opined that ‘the Signature D is a free hand forgery’ and therefore, in such a context this Court opines that as a matter of prudent course, the respondent/plaintiff should have taken steps for appointment of an Expert on his side or upon his failure in this regard, then the trial Court should have issued a direction to the respondent/plaintiff to examine the Expert atleast as a Court witness for comparing the disputed signature of the appellant/defendant in Ex.A.1 pronote with that of her admitted signatures and after obtaining the said expert opinion’s report ought to have evaluated the evidence of D.W.2 and the Ex.C.3 report and then must have arrived at a conclusion of accepting the one of the two reports after ascribing the scientific reasoning. It is always open to a Court of law to prefer the evidence of one Expert to that of another one and it is not improper to act on the opinion of one Expert though that is contradicted by another Expert.
42.However, such a procedure has not been resorted to in the present case on hand. Hence, this Court, without going into the merits of the case, comes to the inevitable conclusion that the appeal deserves to be allowed to prevent an aberration of justice and accordingly, the same is allowed in the interest of justice and resultantly, the matter is remitted back to the trial Court for reconsideration in accordance with law leaving all the points/disputes in controversy between the parties open (without determining the same) and the points are answered accordingly.
43.In fine, the Appeal is allowed. The Judgment and Decree of the trial Court dated 28.8.2001 are set aside. The matter is remitted back to the trial Court for reconsideration of the disputes/controversies (over the subject matter of the suit) in accordance with the law and the parties are given the liberty to examine additional witnesses and mark documents if they so desire and the trial Court shall permit them in this regard. The respondent/ plaintiff is directed to take steps by means of filing of an Interlocutory Application before the trial Court within one week from the date of receipt of copy of this order praying for appointment of Handwriting Expert on his side to send/examine the disputed signature of the appellant/ defendant in Ex.A.1 pronote with that of her proved or admitted signatures and in the event of filing such an application, the trial Court shall provide an opportunity to the appellant/defendant to file a counter and then the trial Court is to pass orders on merits in the manner known to law. It is open to the trial Court to fix remuneration for the Expert to be appointed on the side of the respondent/plaintiff. Further, the trial Court after receiving the report of the said Expert can also direct him to adduce evidence and also to receive the objection if any to be filed on the side of the appellant/defendant and to decide the subject matter of suit on merits and in accordance with law by disposing of the main suit within a period of five months from the date of receipt of copy of this order and to report compliance to this Court without fail. Considering the facts and circumstances of the case, the parties are directed to bear their own costs in this appeal. Consequently, connected miscellaneous petition is closed.
1.The Subordinate Court,
2.The Sub Assistant Registrar,