Madras High Court
Seethalakshmi vs M.Karunanidhi on 4 June, 2013
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:04.06.2013 CORAM: THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.R.P.PD.No.3037 of 2010 and M.P.No.1 of 2010 Seethalakshmi .. Petitioner/Petitioner/Plaintiff Vs. M.Karunanidhi .. Respondent/Respondent/Defendant Prayer: Petition filed under Article 227 of the Constitution of India, against the Fair and Final Order passed in I.A.No.809 of 2009 in O.S.No.111 of 2006, dated 22.03.2010 on the file of the District Munsif Court, Kangeyam, Erode District. For Petitioner : Mr.S.Saravanan For Respondent : Mr.K.Soundararajan ORDER
The Petitioner/Plaintiff has focussed the instant Civil Revision Petition as against the Order dated 22.03.2010 in I.A.No.809 of 2009 in O.S.No.111 of 2006 passed by the Learned District Munsif, Kangeyam, Erode District.
2.The Learned District Munsif, while passing the impugned order in I.A.No.809 of 2009 in O.S.No.111 of 2006 dated 22.03.2010, has, categorically, among other things, observed that '... at the time of obtaining the thumb impression from the Respondent/Defendant in the presence of Court, the Petitioner and Respondent side Advocates were present and also that at the time of obtaining the Respondent/ Defendant's thumb impression by the Court, no objection has been raised/placed by the Petitioner's Advocate and also nearly 10 thumb impressions have been obtained from the Respondent/Defendant and the said 10 thumb impressions together with thumb impression of the suit pro-note have been sent for Expert's examination and the Expert has examined those impressions and has come to a conclusion that they are different ones and the two thumb impressions do not belong to a same person and to that effect has filed a Report etc. and consequently, dismissed the Application leaving the parties to bear their own costs.
3.Challenging the order of dismissal passed by the Learned District Munsif, Kangeyam in I.A.No.809 of 2009 in O.S.No.111 of 2006 dated 22.03.2010, the Learned Counsel for the Petitioner/Plaintiff submits that on earlier occasion, the Respondent/Defendant has filed C.R.P.PD.No.2541 of 2008 before this Court and this Court on 19.01.2009, in paragraph 5, has observed the following:
"5.At this juncture, I am of the opinion that even though the burden of proof is on the respondent/plaintiff to prove the case, the petitioner/ defendant, in order to buttress and fortify his stand, can ask for sending the impugned document for comparison. However, there are certain well settled guidelines to be followed. In this case, both the purported signature as well as the purported left thumb impression of the petitioner/defendant are found in the impugned pro-note and in such a case it is just and proper for the Court to send the impugned signature and the left thumb impression for comparison, so as to compare them with the anti litum motam signature of the petitioner/ defendant and also with the sample left thumb impression of the petitioner/ defendant concerned. Hence, at the first instance, the petitioner/defendant shall secure before the Court his own one or two anti motum litem signatures before the Court and also furnish his left thumb impression, whereupon, the lower Court shall appoint an Advocate Commissioner for the following purpose.
(a)To carry the relevant documents in connection with this case personally in a sealed cover;
(b)and produce the same before the Forensic Expert;
(c)leave it in his custody under his acknowledgment for as many days as the Forensic Expert may require;
(d)collect the record from the Forensic Expert on the day as may be fixed by him;
(e)bring it back and lodge it with the Court" and directed the Forensic Expert to complete the examination, in any event, within 48 hours after the depositing of the same by the Advocate Commissioner with him and disposed of the Civil Revision Petition accordingly.
4.The Learned Counsel for the Petitioner/Plaintiff, while advancing his arguments, contends that the trial Court has sent only the thumb impression of Defendant for the purpose of Forensic Expert's Examination and it has not sent the Tamil signature of the Respondent/Defendant for comparison and in this regard, there has been a violation of the order passed by this Court in C.R.P.PD.No.2541 of 2008, committed by the trial Court.
5.Expatiating his submissions, the Learned Counsel for the Petitioner/Plaintiff submits that in para 5 of the order dated 19.01.2009 in C.R.P.PD.No.2541 of 2008, this Court has clearly opined that '... In this case, both the purported signature as well as the purported left thumb impression of the petitioner/defendant are found in the impugned pro-note and in such a case it is just and proper for the Court to send the impugned signature and the left thumb impression for comparison, so as to compare them with the anti litum motam signature of the petitioner/defendant and also with the sample left thumb impression of the petitioner/defendant concerned. Hence, at the first instance, the petitioner/defendant shall secure before the Court his own one or two anti motum litem signatures before the Court and also furnish his left thumb impression, whereupon, the lower Court shall appoint an Advocate Commissioner for the following purpose' and as such, the trial Court order in dismissing the impugned order in I.A.No.809 of 2009 in O.S.No.111 of 2006 is quite contrary to the tenor and spirit of the order passed by this Court in C.R.P.PD.No.2541 of 2008 has made mention of supra.
6.Yet another submission of the Learned Counsel for the Petitioner/Plaintiff is that the Respondent/Defendant has not produced documents containing a signature in Tamil and in any event, no prejudice/hardship would be caused to the Respondent/Defendant if I.A.No.809 of 2009 in O.S.No.111 of 2006 on the file of trial Court is allowed by the trial Court.
7.It is submitted on behalf of the Petitioner/Plaintiff that thumb impressions of the Respondent/Defendant have not been properly obtained while sending the same for comparison and as such, there appears to be a miscarriage of Justice.
8.Finally, the Learned Counsel for the Petitioner/Plaintiff contends that even if the Petitioner/Plaintiff has given up his right in terms of the order passed by this Court in C.R.P.PD.No.2541 of 2008 dated 19.01.2009 and also that when the trial Court has asked the Revision Petitioner/Plaintiff that the thumb impression of the Respondent/Defendant can again be sent for examination and also in this regard, when the Petitioner/Plaintiff has not raised objection and stated like that before the trial Court, it is the pre-mordial duty of the trial Court to follow the spirit and tenor of the order in C.R.P.PD.No.2541 of 2008 to the fullest extent and the mere giving up of the right by the Revision Petitioner/Plaintiff before the trial Court will not any way help the case of Respondent/Defendant. To put it shortly, the contention of the Learned Counsel for the Petitioner/Plaintiff is that in any event, the trial Court is to follow the order passed by this Court in C.R.P.PD.No.2541 of 2008 dated 19.01.2009 in true letter and spirit and it cannot give up or omit any of the directions issued by this Court in any manner whatsoever.
9.Conversely, it is the submission of the Learned Counsel for the Respondent/Defendant that the report of the Forensic Expert indicates that the thumb impression found in the Promissory Note does not belong to the Respondent/Defendant and only in the presence of the trial Court, the thumb impressions have been taken and transmitted for examination by the Forensic Expert and when, in fact, the Report of the Forensic Expert is very much against the Revision Petitioner/ Plaintiff, I.A.No.809 of 2009 filed by the Revision Petitioner/Plaintiff is not maintainable in limini, in the eye of law.
10.Moreover, the Learned Counsel for the Respondent/Defendant submits that since the Report of the Forensic Expert is against the case of the Revision Petitioner/Plaintiff and also when the Respondent/ Defendant has not accepted the signature found in the suit Promissory Note, belonged to him and under these circumstances, requiring the trial Court to call for office records and the signatures found therein to send the same along with the signature found in the Promissory Note for Expert's examination, cannot be accepted.
11.It is to be noted that an Expert should place before the Court all the materials which induced him to come to the conclusion, so that the Court, although not an Expert, may form its own Judgment on those materials as per decision in Titli V. Jone, AIR 1934 All at page 273.
12.It cannot be gainsaid that Experts give evidence and they do not decide the issue as per decision in Metropolitan Properties Company Limited V. Lannon (1968) 1 All ER at page 354. Further, in Cross, 5th Ed., at page 447, it is stated as follows:
"Although the expert witness has not escaped criticism, he is probably the best means, compatiable with the adversary system, of furnishing the judge and jury with information on matters calling for expertise".
13.Experience shows that no two persons have identical finger or palm prints and this method of identification is reliable [vide R V. Robinson, 1955 Times 10th May, Per Lord Godderd C.J.]. Also that, before seeking the assistance of Section 73 of the Indian Evidence Act, 1872 (comparison of signature, writing or seal with others admitted or proved), there must be evidence before the Court that a thumb impression is that of a party in the litigation as per decision in Krishna V. Commissioner of Endowments, AIR 1976 Orissa at page 52.
14.Furthermore, comparison of thumb impression has become an exact science and much importance can be attached to the evidence of an Expert in this regard. An Expert evidence becomes relevant when there is no direct evidence, as opined by this Court. Moreover, requiring an individual/accused to give specimen handwriting or impressions of finger, palm or foot etc., would not amount to compelling him to be a witness against himself in terms of Article 20(3) of the Constitution of India. That apart, it is palatable that reasons for opinion are furnished in the report itself by an Expert in the subject matter in issue.
15.On going through the impugned order passed by the trial Court in I.A.No.809 of 2009 in O.S.No.111 of 2006, this Court finds that in paragraph 8 of the impugned order in I.A.No.809 of 2009, it is crystal clearly mentioned that the trial Court has clearly asked the Revision Petitioner/Plaintiff as to whether the thumb impression in Promissory Note can be compared with that of the thumb impression obtained from the Respondent/Defendant and for that the Revision Petitioner/Plaintiff has stated no objection. Thereafter, in the presence of respective sides, the trial Court has obtained 10 thumb impressions and recorded the same. Later, those thumb impressions were transmitted for examination by the Forensic Science Expert at the Tamil Nadu Forensic Science Laboratory, Chennai. As such, it is not open to the Revision Petitioner/Plaintiff to approbate and reprobate by taking a contra stand to suit his convenience when that too the Forensic Science Report is very much against her. Also that when the thumb impression of the Respondent/Defendant has been obtained in the presence of trial Court, at that time the Respondent/Defendant's Advocates have been present and also no objection has been raised on behalf of the Revision Petitioner/Plaintiff at that point of time.
16.One cannot brush aside a vital fact that nearly 10 thumb impressions of the Respondent/Defendant has been taken in the presence of trial Court and the said thumb impressions together with the thumb impression found in Promissory Note have been sent for Expert's examination. At the risk of repetition, this Court points out more importantly that the Expert has given a Report, by mentioning that the two thumb impressions are different one. As such, it is patently and latently quite clear that the Revision Petitioner/Plaintiff has become wiser after the Expert's opinion/report and has projected I.A.No.809 of 2009 before the trial Court seeking the reliefs of sending the suit promissory note sample left hand thumb impression paper, left hand thumb impression of the Respondent/Defendant's Sale Deed, Attendance Register of the Tamil Nadu Government Transport Corporation, Kankeyam, Salary Register etc., by appointing an Advocate Commissioner and to send the same through him for obtaining an Expert opinion.
17.In law, the Forensic Science Expert Report/Opinion has persuasive value, although it may not have a binding force on a Court of Law. In fact, the Report of the Forensic Science Expert/Finger Print Expert will have to be looked into and taken note of by the trial Court along with other available oral and documentary evidence on record in a given case and it is for the trial Court to arrive at a conclusion in a given case based on the attendant facts and circumstances and on available oral and documentary evidence on record in a certain case. In the instant case on hand, the Expert's Opinion/Forensic Science Expert's Report is very much against the Revision Petitioner/Plaintiff. When the Expert has come to a conclusion that the thumb impression found in the suit Promissory Note is a different one than that of the 10 thumb impressions obtained and sent along with the suit Promissory Note for comparison, then, it is not open to the Revision Petitioner/ Plaintiff to indulge in yet another round of litigation by initiating a proceeding by way of an Application in I.A.No.809 of 2009 requiring the trial Court to send the concerned documents as stated in the Petition for comparison to be made by the Expert and for getting his opinion in the matter in issue.
18.Be that as it may, in the upshot of discussions mentioned supra and in view of the fact that the trial Court has obtained the thumb impression of the Respondent/Defendant in its presence and also in the presence of two sides Advocates and thereafter, when the Report of the Expert shows that the Report is against the Petitioner/ Plaintiff, the filing of the present I.A.No.809 of 2009 in O.S.No.111 of 2006, in the subject matter in issue, is clearly unsustainable in the eye of law. Viewed in that perspective, the Civil Revision Petition fails.
19.In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.809 of 2009 in O.S.No.111 of 2006 is affirmed by this Court for the reasons assigned in this Revision. Since the suit is of the year 2006 and nearly 7 years have elapsed, it is high time for the trial Court to dispose of the main suit in O.S.No.111 of 2006 within a period of four months from the date of receipt of copy of this order and to report compliance to this Court without fail. Consequently, connected Miscellaneous Petition is also dismissed.
Sgl To The District Munsif Court Kangeyam Erode District