IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.04.2009 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(PD)No.3962 of 2008 M.P.No.1 of 2009 V.P.Sankaran ... Petitioner vs. R.Uthirakumar ... Respondent Civil Revision Petition is filed under Article 227 of the Constitution of India challenging the fair and decretal order, dated 05.08.2008 made in I.A.No.949 of 2007 in O.S.No.125 of 2007 on the file of the Principal District Munsif Court, Bhavani. For Petitioner : Mr.N.Manokaran For Respondent : Mr.T.Murugamanickam O R D E R
The petitioner is the defendant in O.S.No.125 of 2007 on the file of the Principal District Munsif Court, Bhavani. The respondent filed the sit for recovery of Rs.98,600/- from this petitioner on the strength of a promissory note executed by him on 10.07.2005. This petitioner filed the written statement, contending inter alia, that as he stood as guarantor for his friend by name Rangasamy, who borrowed a sum of Rs.5,000/- from the Finance Company run by the plaintiff and this petitioner put his signature and his left thumb impression on a blank pro-note, in which, only numericals of Rs.5,000/- written at the top, and that the said Rangasamy discharged the loan. However, the plaintiff did not return the above said blank pro-note to the defendant and that the said document has been forged and fabricated, with material alteration as if, the defendant owes Rs.85,000/- to the plaintiff.
2. The petitioner filed the petition under Section 45 of the Indian Evidence Act and Section 151 CPC, praying the Court to refer the suit pro-note to handwriting expert to compare the difference available in the thickness, clarity of ink used to place 8 in front of Rs.5,000/- and writing of the amount in words with the other words used to fill up the pro-note relating to the address of parties and to give his opinion. In the affidavit, he has stated that originally, numericals “Rs.5,000/-” alone was entered in the pro-note, but the suit pro-note shows as if, it is for Rs.85,000/- and words in Tamil as “Rs.85,000/-” have been written subsequently and hence, age, thickness and clarity of the ink have to be compared by the handwriting expert.
3. The above said petition resisted by the respondent by filing counter affidavit, stating that it is false to state that the alteration has been affected in the suit pro-note from numericals 8 to 85; that the petitioner is belated one; and that only in order to drag on the proceedings, the petitioner has been filed.
4. Learned Principal District Munsif, Bhavani, dismissed the said application, by observing that referring to the pro-note to the handwritting expert would only drag on the proceedings, as there is no apparent mischief could be observed in the pro-note and the said question has to be decided at the time of trial by examination of witnesses and other evidence.
5. Learned counsel for the petitioner, Mr.V.Manoharan, would draw the attention of this Court to the decision of the Supreme Court in T.Nagappa v. Y.R.Muralidhar reported in 2008 (5) SCC 633, wherein, Their Lordships have dealt with an identical circumstance and held that the age of writing can be directed to be compared by an expert and that when the person, who delivered a cheque disputes the contents of the document, it is incumbent upon the Court to refer the same to the handwriting expert. The operative portion of the judgment is extracted hereunder:
“7. When a contention has been raised that the complainant has misused the cheque, even in the case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it.”
6. In the above said decision, an earlier decision of the Supreme Court in Kalyani Baskar v. M.S.Sampoornam reported in 2007 (2) SCC 258, is also referred to, in which, it is observed thus,
“The appellant is entitled to rebut the case of the respondent and if the document, viz., the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial.”
7. The Supreme Court has taken a consistent view that when the opinion of the expert brings out good material in favour of the person, delivering the cheque to rebut the case, it has to be obtained by the Court and refusal on the part of the Court would amount to deprivation of opportunity of rebutting it.
8. Learned counsel for the petitioner would draw attention of this Court to a decision of the Andra Pradesh High Court in Uppu Jhansi Lakshmi bai v. J.Venkateswara Rao reported in AIR 1994 Andra Pradesh 90, in which, it is held that the opinion of the handwriting expert is not totally irrelevant factor for adjudication of the dispute and his opinion can be sought for determining the age of disputed handwriting. In the said decision, a judgment of the Apex Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee reported in AIR 1964 SC 529, has been referred and relied upon. The extraction of portion of the judgment is as follows:
“Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on “Questioned Documents” at page 464 says even with respect to chemical tests that “the chemical tests to determine the age also, as a rule are a mere excuse to make a guess and furnish no reliable date upon which a definite opinion can be based. In these circumstances, the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances.”
9. Learned judge of the Andra Pradesh High Court further had taken pains to go through the authority of ‘Albert S.Osborn’ and extracted the view of the author, which is more appropriate to furnish here:
“There are those also who pretend to say how old a writing is by merely examining it with a hand magnifier or a microscope. This always is an exhibition either of ignorance or of dishonest presumption. The chemical tests to determine age also, as a rule, are a mere execuse to make a guess and furnish no reliable date upon which a definite opinion can be based as can easily be demonstrated by fair tests on documents of known age.”
The learned author also expressed the view that:
“………By recording the color as first seen, any observer with good eyesight can on second view answer the question whether an ink is still undergoing a change in color. This kind of an ink examination often furnishes conclusive evidence that a document is not as old as it purports to be.
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It is important to know that the color of the ink on a suspected document, if it is promptly examined, may thus be the means of showing that the document is not genuine. If a writing of this kind purports to have been written long before and it can be shown that the ink has not yet reached its final depth of color, and it actually goes through those changes that are characteristic of ink during the first months or year of its history, it is only necessary to prove this fact to invalidate the document.”
The relevant authorities on this subject also lend support to the contention of the petitioner.
10. Learned counsel for the respondent, Mr.T.Murugamanikkam, would place reliance on a decision of this Court in Sundaramoorthy v. R.Palanisamy reported in 2009 (2) MLJ 358, where, the learned Judge referred to another decision of this Court in S.Gopal v. D.Balachandran reported in 2008 (1) MLJ (Crl.) 769, wherein, it was observed as under:
“the age of the ink cannot be determined, on the basis of the writing the ink in dispute was manufactured five years prior to the date of execution of the document and used effectively on a particular dated for the first time and an experts opinion as age of ink will not resolve any controversy, but it will help to create only confusion.”
11. In the above prorated judgment, this Court has taken a view that the defendant need not take any steps to disprove the case of the plaintiff and no useful purpose would be served by sending the pro-note to ascertain the age of the ink.
12. Following the principles and guidelines laid down in the decision of the Hon’ble Supreme Court mentioned supra, it is held that referring the suit pro-note to the wisdom of handwriting expert is inevitable for the reasons that the petitioner had to be afforded with ample opportunities to rebut the presumption under Section 118 of the negotiable Instruments Act. When the contents in the suit pro-note are specifically disputed, the Court need not decline to refer the matter to the handwriting expert. As for the Criminal case under Section 138 of the negotiable Instruments Act, it has become the responsibility of the accused to discharge the burden. In so far as the civil cases are concerned, the position of affording ample opportunities to the defendant, when necessary defence is specifically available in the written statement, has to be considered.
13. There is no legal embargo for getting opinion from the handwriting expert, which would effectively assist the Court in reaching a just decision. By no stretch of imagination, it could be stated that the opinion of the expert, is not relevant factor for adjudication of the dispute and in order to unearth the truth, the Court can very well refer the matter for comparison and necessary chemical examination.
14. In the light of the above said observations and following the principles of the Apex Court, it is observed that it is necessary to get the opinion of the handwriting expert as per the prayer contained in the affidavit. Hence, the order passed by the Court below calls for intervention and the same is liable to be set aside, which is accordingly set aside and the Civil Revision petition deserves to be allowed. The trial Court shall follow the relevant procedure for referring the suit pro-note to the handwriting expert and to get the opinion and proceed with the case further.
15. In fine, the Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
15.04.2009
Index: Yes
Internet: Yes
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To
The Principal District Munsif Court,
Bhavani.
S.PALANIVELU, J.
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C.R.P.(PD)No.3962 of 2008
15.04.2009