Madras High Court
R.Elango vs K.Dhanasekaran on 17 September, 2008
Author: K.Kannan
Bench: K.Kannan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17 -09-2008 CORAM: THE HON'BLE MR.JUSTICE K.KANNAN CRP.PD.NOS.1023 TO 1025 of 2008 and M.P.NOS.1+ 1 + 1 of 2008 R.Elango ...Petitioner in all CRPs. Vs. K.Dhanasekaran ..Respondent in CRP.1023/08 K.A.Duraisamy ..Respondent in CRP.1024/08 S.C.Ramalingam ..Respondent in CRP.1025/08 Prayer:- Civil Revision Petitions filed against the fair and decretal order dated 5.2.2008 made in I.A.NO. 799, 801 and 803 of 2007 in O.S.NO.423,427 and 429 OF 2006 on the file of Principal Sub Court, Erode. For Petitioner : Mr.N.Manokaran For Respondent : Ms.P.T.Asha for M/s Sarvabhauman Assopciates --- O R D E R
The three CRPs. in CRP.Nos.1023 to 1025 arise out of the common order passed by the trial court rejecting the application filed by the defendant in comparing the signature found in the promissory note whose genuineness was disputed by the defendant for assessment by handwriting expert. The claims under the three suits were to sums above Rs.3 lakhs in each suit.
2. In all the suits, the signatures found in the promissory notes were denied by the defendant and having regard to the relatively large sums of money which were sought to be claimed under the disputed documents, the defendant had thought of securing a handwriting expert's opinion by sending the documents for comparison with the admitted signatures of the defendant and for obtaining the report of the handwriting expert. The trial Court rejected the petition on the ground that the defendant had not set out any details of the so called admitted document and in the absence of such information, it was not possible to countenance the plea raised by the petitioner.
3. The petitioner contended that having regard to the fact that the amount claimed under the promissory notes were substantially large sums, the petitioner was entitled to seek for a expert's opinion that there had been really no delay in filing the application. The written statement had been filed on 3.4.2007 in all the suits and application for taking an expert's opinion was filed reasonably early before commencement of the trial on 8.9.2007. It was his contention that the question as to what document shall be compared with the signatures found in the promissory notes would be a matter that could be addressed at the time when the expert had the custody of the documents for making his assessment and merely because the admitted documents had not been tendered before the Court at the time of filing of the petition, the petitioner could not have been rejected.
4. The procedure adopted by the trial court and the reasoning given by him for rejection of the petition are not tenable. The motive of the petitioner itself cannot be seriously viewed in view of the fact that the amount claimed under the promissory note were substantial and if any party wanted to adduce proof of the fact that the signature found in the document was not that of his, it was always open to him to secure an expert's opinion. The value of the expert's opinion is a matter of appreciation by the Court itself and by the mere fact that it could be commented upon as weak piece of evidence, there was still no justification by denying of the above relief by obtaining such opinion. There have been several decisions of this Court and particularly a decision rendered by this Court in CHINNAPPAN AND ANOTHER VS. CHINNAMMAL reported in 2005 (3) LW 259 considered several decisions bringing out the aspect that the Court shall not itself take the role of an expert and in a case where there is serious dispute with reference to signature found in the document it would be open to a party to apply for an expert's opinion by comparing the signature found in the disputed document and the signature in the admitted document.
5. There have been several different approaches in the manner of securing the expert's opinion. The Courts have always relied on safeguarding the document in its custody and therefore different modes had been expressed in different judgments. One mode is that the expert shall come to a Court and take photographs of the signature found in the disputed document and the signature found in the admitted documents and magnify them, if necessary, and take them for drawing up an opinion. Yet another mode is to assign the task of securing the custody of the document by an Advocate Commissioner entrusted with the duty of transporting the document to another place where the handwriting cum Forensic expert has his office and then bring it back after securing the report on a due consideration of the relevant materials. Yet another mode of securing an expert's opinion is to summon the expert and give him an opportunity to see the documents and get his report then and there and obtain his oral evidence touching upon of his opinion and subject him to cross examination.
6. All the above modes are acceptable and unexceptional. The only homogeneous approach is that the document which is disputed, shall not be taken out from the custody of the Court and safeguarding the document is most paramount. Under the circumstances, in my considered opinion, the prayer of the petitioner for appraising the documents by a handwriting expert by comparing his admitted signature must be granted. The admitted document would be the document brought about at the same time when the disputed documents are said to have been executed and they shall preferably be a public document which contains the signature of the party. Authenticity can come from public documents or any other document which is considered by the respondent as genuine. As and when such documents are produced before the expert, the expert will follow any one of the three modes referred to above and the expert shall give the opinion to enable the court to render a finding, along with other evidence.
7. The law relating to handwriting experts has seen through many a judge's pronouncements, I shall not add to the bulk except to collate them for easy comprehension. The wisdom of the pronouncements have been distilled admirably in a judgment in Govindaraj Vs. Dr.Nallasivam reported in (2008) 4 MLJ P.476 particularly in para.32.
8. The genuineness of the document will have to be examined primarily with reference to the evidence of the witnesses directly connected to the document. If anyone of the parties wants the document to be assessed by a handwriting expert and if the request is made in time before the commencement of the trial, the request shall be accorded. The party seeking for expert opinion may state his own choice of the expert, be (s)he a government employed or a private professional. The choice cannot be opposed by the opposite side (See T.A.Narasimhan Vs.Narayana Chettiar (1968) 2 MLJ 48). After all, the handwriting expert is the witness of the party who summons him/her.
9. A handwriting expert opinion is of weak value but it shall be considered along with all other relevant facts and materials. An expert never supplants the view of the Court, for the court's power to compare the signatures and form its opinion is paramount and rooted in statute through section 73 of the Indian Evidence Act. [See. Ram Narain Vs.State of Himachal Pradesh (1974) 1 MHLJ 297 (SC)]. The Court itself shall not assume the role of an expert (Chandran Udayar V.Kasivel (2008) 3 MLJ 897; (1997) 1 MLJ 304). If the Court finds it difficult to assess it on comparison of signatures, it may take steps to secure an expert's opinion [Govindaraj Vs. Dr.Nallasivam (supra)].
10. Unlike criminal cases, where it shall be possible even to get the accused to submit sample signature for comparison with document containing disputed signatures [State (Delhi Administration Vs..Pati Ram (1979) 1 MLJ (crl) 250 (SC); Kumaran Nair U.Bhargavi (1988) 1 MLJ (crl. 429)], there may not be an occasion for this Court to subject a party to submit the signatures for expert opinion. There cannot even be an adverse inference by the fact that the party affirming or denying the signature(s) in a document does not seek for an expert opinion.
11. The proper procedure shall be to summon the expert to inspect the documents in Court in the presence of a Court officer, permit him/her to take photographs of the document along with signature in admitted documents and secure his report. It shall not be lawful to permit the expert to take the document away from the custody of the court (Saroja and others V.Purna Mariyal and another (2002) 1 MLJ P 151; (T.A.Narasimhan Vs.V.Narayanan Chettiar 1968 (2) MLJ 48) It may, if the expert is unable to come, permit the party to take photographs of the document containing the disputed signature as well as the admitted signatures in the presence of a Court Officer and send the document for comparison by the expert and for his report (Saroja and others V.Purna Mariyal and another (2002) 1 MLJ P 151; (T.A.Narasimhan Vs.V.Narayanan Chettiar 1968 (2) MLJ 48). Another practice, which has been occasionally adopted the appointment of an advocate commissioner to take the document from court to the handwriting expert and secure the latter's opinion (2005) 3 MLJ 268, (2005) 3 CTC 286, (2005) 3 Mad LW 259 . In all cases, where the expert's opinion is obtained, examining him as a witness in court is a sine qua non (State of Gujarat Cs. Vinaya Chandra (1967)1 MLJ (crl) 442 (SC)).
12. Having paraphrased the essential features of the law on the subject briefly, I direct that the petitioner may be permitted to either (i) summon an expert and permit him to take photographs of the disputed promissory notes as well as any public document(s) or authenticated document of reasonable credibility of the same or near about the year which contains the admitted signature (as admitted by the adversary or if no such admission is given, with reference to documents, which, in the opinion of the Court, are fit for comparison of signatures, to enable the expert to draw up an expert opinion; or (ii) permit the petitioner to take photographs of the disputed signatures alongside the admitted signatures in the court premises in the presence of a court officer and send the photographs to the expert for his opinion. The exercise shall be undertaken by the lower court on appropriate steps taken by the petitioner within two weeks from the date of receipt of the order copy.
13. The revision petitions are allowed on the above terms. No costs. Consequently, connected M.Ps. are closed.
VJY To The Principal Sub Court, Erode