BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :05/12/2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(PD)(MD).No.1991 of 2008 and M.P.(MD).No.1 of 2008 T.Sikkannan ... Petitioner Vs. N.K.Perumal ... Respondent Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 05.01.2007 made in I.A.No.87 of 2005 in O.S.No.137 of 2004 passed by the Principal District Court, Dindigul. !For Petitioner ... Mr.H.Lakshmi Shankar ^For Respondents ... Mr.K.R.Laxman **** :ORDER
The petitioner is the defendant in O.S.No.137 of 2004 on the file of the
Principal District Judge, Dindigul which is a suit filed by the respondent /
plaintiff for recovery of money on the basis of two pro-notes. In the affidavit,
the petitioner has alleged that it is the version of the plaintiff that on
01.02.2002 and 15.10.2002, this petitioner borrowed a sum of Rs.3,50,000/- and
Rs.1,00,000/- respectively and executed two pro-notes in his favour, that while
both of them were running a Pawn Broker Shop, the respondent utislised the
petitioner’s signature and fabricated these pro-notes in order to grab at the
house belonging to this petitioner. Hence, the suit pro-notes have to be
referred to a handwriting expert for comparison with admitted signatures. For
this purpose, a petition under Section Order 26 Rule 10 has been filed.
2. In the counter filed by the respondent, it is alleged that in order
to drag on the proceedings, this petition has been filed. Both the pro-notes
were self-written documents by the petitioner himself and they had been marked
as Exs.A.1 and A.2. After cross-examination of the respondent / plaintiff, this
petition has been filed with false particulars. On 26.10.2004, the petitioner
inspected the documents in the Court with the consent of the respondent. Even
after such inspection, he has not taken any steps to refer the matter to the
expert and belatedly, this petition is filed. Further, there is no mention in
the affidavit that what is the document which contains his admitted signatures.
Hence, the petition has to be dismissed.
3. The Principal District Judge, Dindigul has dismissed the application
by observing that even though the petitioner inspected the pro-notes on
23.11.2004, after getting permission from the Court, the present petition has
been filed on 08.06.2005, after six months and this venture is to protract the
proceedings and hence, it is liable to be dismissed.
4. The learned District Judge has not reached his conclusion on the
basis of any of the legal principles settled on this subject. However, it is
the opinion of the Court below that in order to drag on the proceedings, this
petition has been filed. Such approach is from one angle. Mainly, the matter
has to be dealt with as per the well settled legal principles of the Supreme
Court as well as this Court.
5. In a Division Bench decision of this Court reported in (2008) 2 MLJ
395, Ammani Ammal Vs. Dhanalakshmi Bank Ltd and others, in which the learned
Judges are of the opinion that of course, Section 73 of the Evidence Act permits
the Court to compare the signature, however, in cases like the present one,
where the signatures are found in so many documents, and execution of mortgage
deed itself is in dispute, it is better to send those documents for expert
opinion. In the same judgment, the learned Judges have also referred to the
Supreme Court decisions to the effect that it is not advisable that a Judge
should take upon himself the task of comparison. The relevant portion goes
thus:-
“34. In O.Bharathan v. K.Sudhakaran, AIR 1996 SC 1140 : (1996) 2 SCC 704,
the Apex Court, relying on an earlier judgment AIR 1979 SC 14, held that it is
not advisable that a Judge should take upon himself the task of comparing the
admitted handwriting 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.”
6. In 2008 (3) MLJ 897, Chandran Udayar Vs. Kasivel, this Court is of
the opinion that when an expert opinion is given, it is the 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, no
wonder, the handwriting expert’s function is to opine after a 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 should then compare the handwriting with its own eyes for a proper
assessment of the value of the total evidence.
7. In (2008) 4 MLJ 176, M.Govindaraj Vs. Dr.V.Nallasivan, this Court
has followed a decision rendered earlier by this Court reported in 2005 (2) CTC
850, Chinnasamy.N. V. I.P.S.Swaminathan and 2005 (2) MLJ 603, Vijay kumar S.N.
V. S.R.Velusamy. The crux of the decisions is, it is always safe for the Court
to take the aid of handwriting expert to have expertise to scientifically
compare such handwriting with reasons.
8. Per contra, a decision of this Court reported in AIR 2004 Madras
254, V.Chinniah Vs. Pitchaimuthu, has been cited in which it is held that the
trial Court has to exercise its powers under Section 73 of the Evidence Act
before arriving at a correct conclusion and if the petition is filed with a view
to protract the proceedings, such course cannot be allowed.
9. In 2007 (3) Law Weekly 196, T.P.Mani & another Vs. Krishnan, the
learned Judge of this Court has observed that it is always open to the Court by
invoking the powers under Section 73 of the Indian Evidence Act, to compare the
signature of the defendants in the disputed document and the admitted signature
available in the Court.
10. In yet another judgment of this Court reported in 2007 (2) Law
Weekly 450, Sakthivel Vs. Dhandapani, it is concluded that when the application
is filed after a long delay, it cannot be entertained. In a judgment reported
in 2006 (4) CTC 850, N.Chinnasamy V. P.S.Swaminathan, the learned Judge has
formulated as many as 12 guidelines of procedures to be adopted and followed by
the subordinate Courts in dealing with the subject. Among them, No.9 of the
guidelines reads that filing application for examination of documents by
handwriting expert at a late stage thereby protracting and holding up the
proceedings is highly objectionable and No.12 of which goes to the effect that
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.
11. In a Division Bench decision of this Court reported in 2006 (3) Law
Weekly 58, Central Bank of India V. Antony Hardware Mart, the learned Judges
have culled out operative portion in the decision of the Supreme Court, in
para:12 which goes thus:-
“12.Learned counsel for the plaintiff / appellant relied upon another judgment
of the Apex Court reported in 1992 (3) SCC 701 (State of Maharashtra thro’ CBI
Vs. Sukhdev Singh @ Sukha and others). In paragraph 32 at page 730, the Supreme
Court has held as follows:-
“We did not consider it advisable to venture a conclusion based on such
comparison having regard to the state of evidence on record in regard to the
specimen / admitted writings of the accused 1 and 2. Although, the section
specifically empowers the Court to compare the disputed writings with the
specimen / admitted writings shown to be genuine, prudence demands that the
Court should be extremely slow in venturing an opinion on the basis of mere
comparison, more so, when the quality of evidence in respect of specimen /
admitted writings is not of high standard. We have already pointed out the
state of evidence as regards the specimen / admitted writings earlier and we
think it would be dangerous to take any opinion on the basis of mere comparison.
”
12. In 1996 (2) Supreme Court cases 704, O.Bharathan Vs. K.Sudhakaran
and another, Their Lordships while referring to (1979) 2 SCC 158 : 1979 SCC
(Cri) 389, State (Delhi Admn.) V. Pali Ram decided that in Pali Ram’s case, the
opinion was expressed by the Supreme Court in a criminal case while considering
the question whether the accused had committed the offence of forgery and
cheating, it is held that it is not advisable that a Judge should take up the
task of comparing the admitted handwriting with the disputed one to find out
whether the two agree with each other and the prudent course is to obtain
information and assistance of an expert. Further, in the case of Fakhruddin V.
State of M.P., AIR 1967 Supreme Court 1326 : 1967 Cri LJ 1197, the Supreme
Court has observed that comparison of the handwriting expert by the Court with
the other documents not challenged as fabricated, upon its own initiative and
without the guidance of an expert is hazardous and inconclusive and that these
observations were made in the facts and circumstances of such case.
13. In (2007) 2 Supreme Court Cases 258, Kalyani Baskar (Mrs.) Vs.
M.S.Sampoornam (Mrs), the Supreme Court has taken a view when dealing with the
criminal case on cheque that the appellant in the said case requested for
sending the cheque in question for opinion of the handwriting expert after the
respondent had closed her evidence, the Magistrate should have granted such a
request unless, he thinks that the object of the appellant is vexatious or
delaying the criminal proceedings.
14. In 1998 (III) CTC 650, Kuppanna Gounder and another Vs. R.Sivakami,
this Court has held that restriction of an application for appointment of
Advocate Commissioner to take disputed Will to Government handwriting expert for
comparison on the ground of delay is not justified and the approach of the Court
should be to render substantial justice.
15. In MANU/TN/0480/2005 = 2005 (3) CTC 286, (2005) 3 MLJ 268,
Chinnappan and C.K.Dhanapal Vs. Chinnammal, this Court referred to another case
reported in Somasundaram V. Palani, 2001-1-L.W.511, in which this Court has held
that it is settled law that the Court cannot act as an expert.
16. Following the principles laid down in the decisions of the Apex
Court, it could be held that since the Court itself is not an expert, though it
has got ample powers under Section 73 of the Indian Evidence Act. By mere
comparison, the desired result could not be obtained and information of a
handwriting expert can be taken aid by the Court to come to a conclusion, which
could be on the basis of the information of the expert.
17. It is for the Court to decide whether the information of the
handwriting expert has to be strengthened by any other materials and
circumstances. The Court may also decide that no corroboration is necessary for
such information, if the facts of the case warranted so. If the Court thinks
that the information by an expert would stand and establish a fact in issue
without the assistance of other circumstances and if it is in view of the Court
a qualified one, then there is no impediment for it to place reliance upon that
information, provided it exercises its power under Section 73 Evidence Act. It
is incumbent upon the Court to go through the inferences adduced by the expert
for his reaching the conclusion and to render its own finding, after comparison
by itself. It will amount to rendering substantial justice. Mere delay cannot
be a ground to shut the evidence at the threshold. Even though if a petition for
such purpose is filed after a long delay and even if it is filed in the part
heard stage, the Court has to ascertain and find out, whether it is a vexatious
step taken by the party to elongate the proceedings. In case, if the Court
takes the view that the request is genuine one and it is not for harassing the
other side, then the party filing such application could be afforded proper
remedy.
18. It is no doubt true that the petitioner has not mentioned
specifically in his affidavit as to which is the document which contained his
admitted signatures for comparison. However, for this failure on his part, his
claim could not be rejected. The Court may grant an opportunity to him to
produce of such documents which are of contemporaneous period.
19. In such view of this matter, in the considered opinion of this
Court, the petition has to be allowed and the matter be referred to the wisdom
of the handwriting expert for assisting the Court to arrive at a just
conclusion. So, the order passed by the Court below is set aside and the
petition deserves to be allowed.
18. In the result, this civil revision petition is allowed setting aside
the order passed by the learned Principal District Judge, Dindigul in I.A.No.87
of 2005 in O.S.No.137 of 2004. The learned Principal District Judge shall grant
two weeks time to the petitioner / defendant to produce any documents, which are
contemporaneous to the period of pro-note, that is to say 2002 or any earlier
documents which contains his admitted signature and to refer the matter for
comparison by the handwriting expert as per settled procedures. Consequently,
connected M.P. is closed. No costs.
ssm
To
The Principal District Court,
Dindigul.