Andhra Pradesh High Court - Amravati
V Siva Kameswara Rao vs N Satyanarayana on 29 July, 2019
THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI
Civil Revision Petition No.382 of 2019
ORDER:
The unsuccessful petitioner - defendant filed this revision, under Article 227 of the Constitution of India, assailing the order, dated 30.11.2018, of the learned Senior Civil Judge, Repalle, passed in IA.No.359 of 2017 in OS.no.35 of 2016.
2. I have heard the submissions of the learned counsel for the petitioner - defendant ['defendant', for brevity] and of the learned counsel for the respondent - plaintiff ['plaintiff', for brevity]. I have perused the material record.
3. To begin with, it is to be noted that in a suit on the foot of a promissory note of the year 2013, the defendant filed a written statement inter alia contending that V. Jithendra and V. Hemanth are brothers and are close relatives of the defendant and that the wife of the defendant died due to ill health and that at the time of her treatment, being in need of money, the defendant borrowed Rs.60,000/- from the said Jithendra and that while lending money, he insisted upon giving empty signed promissory note and that the defendant handed over the empty signed promissory note having no other option and that after the demise of his wife, he sold away his immovable property at Hyderabad through the said Jithendra and discharged his debt and that subsequently there were family disputes between the said Jithendra and the defendant and that on account of the said disputes, the said Jithendra got issued legal notice 2 demanding money in the name of one Ch. Rangaiah, who is the vendee of this defendant, and that the said Jithendra had kept quiet on receiving the reply notice from the defendant and that subsequently, the said person got issued a notice demanding money in the names of Peteti Suresh and K. Sekhar Reddy and that the defendant got issued reply notices to them and that after receipt of the summons in this suit, the enquiries of the defendant revealed that the said Jithendra and Hemanth got filed the suit in the name of the plaintiff basing on the above said promissory note and that the defendant has never seen the plaintiff and that no consideration has passed and that the brothers are continuing their harassment by demanding additional amounts.
4. During the pendency of the suit, the defendant filed the instant interlocutory application under Section 45 of the Indian Evidence Act, 1872, requesting to send the promissory note to a handwriting expert, Forensic Science Laboratory, Red Hills, Hyderabad, to determine the age of the ink of the signature on the promissory note to disprove that the suit promissory note was not executed on 22.07.2013. The said petition was resisted by the plaintiff by filing a counter. On merits and by the orders impugned in this revision, the trial Court dismissed the petition of the defendant. Hence, he filed the present revision.
5. The crux of the defence of the defendant is already stated supra. In the present application filed by the defendant in support of the above said request, he reiterated the defence and further pleaded as follows: -
'This defendant has not executed the suit promissory note. It was 3 created by Jithendra and Hemanth in the name of the plaintiff, who is their close associate. The blank promissory note was signed in the year 2007 in the circumstances stated in the defence. The plaintiff is trying to secure the decree on the basis of fabricated and created promissory note.
The writings in the amount column related to the figure 'Rs.60,000/-' and the signature of this defendant are in the same ink whereas the other writings of the suit promissory note vary in the ink in the circumstances stated. To substantiate the said defence, it is necessary to have the promissory note examined by a scientific expert to know the age of the ink of the figure & signature on one hand and the age of the ink of the other writings on the other hand. Hence, the petition is filed.'
6. The case of the plaintiff is in the nature of denial. His further case is that the defendant admitted his signature on the suit promissory note; hence, there is no need to send the document to an expert and seek an opinion; that the defendant earlier filed IA.no.37 of 2017 under the same provision of law for the same relief and the same was dismissed, on 17.03.2017; that later the defendant filed CRP.no.1517 of 2017 before the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh; that the said Court dismissed the same, on 14.07.2017; that the present petition is hit by the principle enshrined in the doctrine of res judicata and hence, the present petition is not maintainable; that the suit promissory note does not disclose on its face any variations/ alterations as already held by the said High Court in the earlier round; and, hence, the petition is liable for dismissal. 4
7. Learned counsel for the defendant while reiterating the case of the defendant referred to supra contended that the trial Court dismissed the petition erroneously by adverting to observations in the earlier order, dated 17.03.2017, passed in IA.no.37 of 2017, and on the ground that the said order was upheld by the High Court in CRP.no.1517 of 2017 and that the said order has become final and that the petitioner did not ask for the present relief in the earlier petition though he had an opportunity to do so; hence, the order of the trial Court is unsustainable. He further submitted that the earlier petition was filed to send the document to an expert to give opinion about material alterations and genuineness of writings on it by comparing the writings in the amount column and signature on one hand and the remaining writings on the other and that the present petition based on the pleaded defence, is filed for a different purpose namely determination of the ages of inks of the writings on the promissory notes. He finally urged that the expertise to determine the age of the ink of writing is available in the Country and hence, the request can be considered. Reliance is placed on the decision in G.V. Rami Reddy v. D. Mohan Raju [2019(2) CCC 0620].
8. Learned counsel for the plaintiff, while supporting the order, which is the subject matter of the revision, reiterated the case of the plaintiff, which is already stated supra, and stated that to his knowledge, there is no developed science to determine the age of the ink of the signature or any other writing and that the petition is filed to drag on the matter.
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9. I have given earnest consideration to the facts and submissions. I have gone through the order impugned and also the copies of the plaint and written statement filed along with the material papers. I have gone through the decision cited and other decisions.
1. In Namineni Audi Seshaiah v. Numburu Mohan Rao1 a learned single Judge of the High Court of Judicature at Hyderabad for the State of Telangana and the State of A.P held that the request to send the document for the Nutron Activation Analysis by BABC, Mumbai, which is a central Government organisation, can be considered as the facility of determination of the age of ink is available.
2. The said learned Judge in T. Rajalingam @ Sambam v. State of Telangana and another2 held that even if the age of the ink cannot be determined, the determination of the age of the signature impliedly includes the determination of the age of the ink.
3. In Kambala Nageswara Rao v. Kesana Balakrishna3 a learned single Judge of the High Court of Judicature at Hyderabad for the State of Telangana and the State of AP held that in a given case, the ink or for that matter the pen, may have been manufactured several years ago before it was used to put a signature and that if there was a gap of ten years between the date of manufacture of ink or pen and the date on which the signature was put or document was written, the document cannot be said to have been executed or signed on the date of manufacture of ink or pen.
1 Order, dated 25.09.2018 in CRP.no.4656 of 2018 2 2017 Law Suit (Hyd) 23 3 2014(1)ALT 636 6
4. In the decision in Polana Jawaharlal Nehru v. Maddirala Prabhakara Reddy4, a learned single Judge of the High Court of Judicature at Hyderabad for the State of Telangana and the State of A.P held as follows:
14. It is an admitted fact that the science relating to forensic examination of Handwriting, especially in relation to the fixation of the age of the ink, is not perfect. In cases of this nature any reference of a document to the Handwriting Expert just for the purpose of finding out whether the ink was
5 years old at the time of institution of the suit or 3 years old at the time of institution of the suit, is not likely to bring any fruitful result. Interestingly in one of the books relied upon by the learned Judge of the Madras High Court, namely "Handwriting Forensics" by B.R. Sharma, Chapter 25 contains a Glossary under the title "Documenpaedia". In the said chapter, there is an interesting portion relating to "INK AGE". This portion reads as follows:
"INK AGE: Age of the writing can sometime be given in relative terms. Upkeep of the document plays an important role. Ink has been extensively studied to fix the age of the documents. There are two aspects which have been explored. • The compositions of inks in common usage have been changing continuously. It was the carbon ink (known as Indian Ink) to start with. It changed to iron tannin inks, then to water-soluble dye inks and later to organic solvent inks as for ball pens. New dye inks are coming up continuously. Thin Layer Chromatography (LTC) can easily identify the ink dye even from an ink line without visibly damaging the writing line. High Performance TLC gives better results. The date of induction of a particular ink, therefore can be ascertained with the help of its manufacturer. If a document is purported to be written prior to its induction of the ink, it is obviously false.
In some countries data relating to induction of various inks is kept for ready reference.4
2017(3) ALT 712 7 • Some inks fade with time. The extent of fading may give some idea about the age of the writing.
• Inks diffuse in the paper. The extent of diffusion may give some guess about the age of writing.
• Iron inks become darker in colour with age. The shade of the ink may give some idea of the age of writing. • In some countries age marker chemicals, usually radioactive materials, are added to the ink. They indicate the age of the writing.
• Fresh ink is easily smudged. Older inks do not smudge easily. The case of smudging may give a rough estimate of the age of the writing.
The methods listed above look impressive. But in practice it is seldom that correct age of the document can be determined as there are many variables which affect the changes in the ink.
Age markers can give correct age of the writings. However, they are not used in India."
15. Therefore, it is clear that no useful purpose will be served by referring the document to the Handwriting Expert. Hence, the dismissal of the applications by the Court below cannot be found fault with.
In the decision in G.V. Rami Reddy [supra], relied upon by the learned counsel for the defendant, the above referred decision in Polana Jawaharlal Nehru was referred to and it was held, having regard to the facts of the said case, that the promissory note in that case can be directed to be referred to Neutron Activation Analysis, BARC, Mumbai, for determining the age of the signature of the defendant.
10. Reverting to the facts of the present case, this Court is in agreement with the view and the ratio in the decision in Polana Jawaharlal Nehru (supra), which squarely applies to the facts of the instant case and that, therefore, no useful purpose would be served by 8 referring the document to the handwriting expert and hence the dismissal of the application of the defendant by the trial Court cannot be found fault with. Further, on account of laches on the part of this defendant viz., in not seeking this relief in the earlier application filed under Section 45 of the Indian Evidence Act, this Court finds that the trial Court is justified in not exercising the discretion in favour of the petitioner.
11. In the result, the Civil Revision Petition is dismissed, however, without costs.
Pending miscellaneous petitions, if any, shall stand closed.
__________________________ M. SEETHARAMA MURTI, J 29.07.2019 Vjl 9 THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI Civil Revision Petition No.382 of 2019 VJL 29-07-2019