Andhra Pradesh High Court - Amravati
Tampakula Savitri vs Gandamani Sivaram on 16 August, 2019
HONOURABLE SRI JUSTICE M.VENKATA RAMANA
C.R.P.No.7858 of 2018
ORDER:
This Civil Revision Petition is directed against order of the learned Senior Civil Judge, Bhimavaram, West Godavari District, dated 11.10.2018 in I.A.No.935 of 2018 in O.S.No.60 of 2017.
2. The defendant filed I.A.No.935 of 2018 in the above suit under Section 45 of the Indian Evidence Act read with Section 151 CPC to send the suit promissory note to Government Hand-writing expert for opinion, upon comparison of the disputed signatures in the above promissory note and her admitted signatures.
3. The respondent is the plaintiff, who laid suit against the petitioner on the foot of a promissory note dated 10.08.2015 alleged to have had been executed for Rs.5,00,000/- agreeing to repay the same with interest at 18% per annum compounded and in all, his suit claim is for Rs.6,43,250/- inclusive interest. The defence of the petitioner in the written statement is one of denial of execution of promissory note and specific plea of forgery is raised.
4. It appears that in the course of trial, the respondent examined himself as P.W.1 and marked Exs.A1 to A3. He also examined one of the attestors to Ex.A1 promissory note as P.W.2. At that stage, when the suit was coming up for further evidence of the respondent, the petitioner filed the above petition.
5. It is the contention of the petitioner that in view of her specific defence in the written statement, to establish the same, it is necessary that the suit promissory note be sent to a Hand-writing expert to 2 examine upon comparing the signature appearing in it and with the admitted signatures, which are available in the vakalat and written statement as well as the served summons copy.
6. The respondent opposed this petition mainly on the ground that the petitioner did not produce any registered documents containing her signatures of the contemporaneous period of the suit promissory note and in such an event alone, it would be appropriate to seek the opinion of Hand-writing expert. It is also his contention that possibility of disguising the signatures, to suit her defence in the vakalat, served summons and written statement, cannot be ruled out and it cannot be the safe material for the purpose of her examination in as much as they relate to the subsequent period of institution of the suit. Further stating that the opinion of an expert is a weak type of evidence and the Court has got ample power under Section 73 of Evidence Act to compare signatures, pointing out that there is direct and positive evidence of the witnesses available on record, who had witnessed the alleged transaction, it is requested to dismiss this petition. It is further claimed that it was only to delay the disposal of the suit, the present petition is filed.
7. Learned trial Judge upon consideration of respective pleadings of the parties and placing reliance on rulings of this Court in RENU DEVI KEDIA v. SEETHA DEVI1, BONALA RAJU AND ANOTHER v. SARUPURU SRINIVASULU2, AMARA VENKATA SUBBAIAH AND SONS v. SHAIK HUSSAIN BI3, NEELAKANTAPPA v.
M.MUNIRATHNAM4 and M.PENTAIAH v. B.PARAMESHWAR5 held 1 2004(5) ALD Page 700 2 2006(1) ALD Page 745 3 2008(5) ALT Page 341 4 2005(1) ALD (Criminal) Page 161(A.P.) 5 2012 (6) ALT Page 650 3 that in the presence of direct evidence on record, opinion of hand- writing expert could be ignored and when there is possibility of the petitioner disguising her style of signature when subscribing on her vakalat and written statement, request for forwarding the suit promissory note to a Hand-writing expert cannot be ordered. Thus observing, the petition was dismissed.
8. In this revision petition, while reiterating the above contentions, which were advanced in the trial Court on behalf of the petitioner, it is stated that there are documents, which are contemporaneous period to the suit promissory note that bear signatures of the petitioner and in such an event, even though the petitioner requested the trial Court to forward the suit promissory note along with written statement as well as vakalat including served summons bearing her signatures, the Court can exercise its discretion, directing her to present such documents bearing her admitted signatures of the same period of the suit promissory note. Further canvassing of the nature of the defence set up in the suit by the petitioner, it is requested that the opinion of Hand-writing expert will be a valuable piece of evidence to support her defence, whereby the respondent would not stand to any prejudice, it is requested to allow this revision petition.
9. On behalf of the respondent, similar contentions which were addressed in the trial Court are reiterated. It is further contended that the trial Court has offered appropriate reasons in refusing to accept the request of the petitioner and particularly in the absence of documents containing signatures of the petitioner of the same period of the suit promissory note, the document in question could not have been forwarded to an expert for comparison. Thus supporting the 4 order under revision on behalf of the respondent, it is requested to dismiss this revision petition.
10. Now, the point for determination is whether learned trial Judge was right in exercising his discretion in refusing to forward the suit promissory note to hand-writing expert for comparison of the signature appearing therein with the admitted signatures?
11. It is fundamental that every opportunity should be given to the parties to the suit to adduce evidence at the trial and place such material in support of their respective contentions. The nature of the defence set up by the petitioner in the suit as referred above is one of denial of the promissory note and the signature attributed to her in it as a forgery. In such an event, when the respondent as the plaintiff lets in evidence to support his claim and to prove the execution of the suit promissory note, the petitioner will have a right to cross-examine these witnesses and possibly elicit such material in support of her defence.
12. At the same time, when she has set up such a plea in the written statement she cannot be called upon to prove in negative that the signature attributed to her in the suit promissory note is a forgery. In that process, the petitioner as defendant could let in evidence on her behalf and possibility to set out certain circumstances which probablise her defence that the document was so forged and fabricated on account of the nature of relationship or background of the transaction. Usually the assistance of a Hand-writing expert is sought to support such defence. It is too early for the Court to decide whether the evidence of the Hand-writing expert is acceptable or otherwise or whether it could be a substitute for direct evidence. 5 None the less, possibility of securing valuable assistance to the Court by an opinion of an expert is very much seen in such circumstances and to evaluate the veracity of nature of claim and defence set forth by the parties to the suit. Viewed from such prospective, every opportunity should be given to the defendant particularly when the nature of defence, is such that as is seen in the present case. Therefore, the first ground on which the learned trial Judge sought to reject the request of the petitioner, categorising the nature of evidence of the expert is not proper.
13. The apprehension of the respondent is that since the vakalat and written statement containing signatures of the petitioner were made after institution of the suit, possibility of disguising them is very much seen. The petitioner has denied such contention. None the less, it is desirable for the Court to forward the documents containing the disputed signatures with such signatures of the contemporaneous period, which stand as admitted signatures of a party for examination by a Hand-writing expert. It is true that in the trial Court, the petitioner did not choose to produce such documents and if had they been produced, there was possibility that the trial Court would have taken a different view.
14. In the course of hearing in this revision petition such an offer is made on behalf of the petitioner to produce documents of the contemporaneous period containing the signatures of the petitioner. The documents should necessarily be containing signatures of the petitioner and their nature should be as such, which shall be accepted by the Court upon considering the plea of the respondent in respect thereof. Therefore, in such situation, it is desirable to give an opportunity to the petitioner to get the suit promissory note decided, 6 with reference to the signature attributed to her therein with those signatures of admitted or undisputed nature appearing in the documents of contemporaneous period. The Court can also forward the vakalat as well as written statement including served copy of summons bearing the signature of the petitioner to the expert for this purpose.
15. As seen from the counter filed by the respondent in the trial Court producing such documents of contemporaneous period as of the suit promissory note was also highlighted, pointing out the significant effect they would make in the process of comparison of disputed signatures and admitted signatures. It is another ground which should be considered at this stage, reflecting that the respondent as such cannot have any objection to forward the document in question for such examination by hand-writing expert.
16. The request of the petitioner is to forward the suit promissory note to a Government Hand-writing expert. It is a well known fact that the Government Hand-writing Experts are overburdened with the work entrusted to them and in their place, it is also desirable to forward the document in question for the present purpose to any other reputed institute like Truth Labs, at Hyderabad.
17. In the backdrop of above discussion in order to give an opportunity to the petitioner, to draw assistance from an expert, to her defence in the course of trial, it is desirable to allow this revision petition.
18. In the result, this revision petition is allowed and without costs, setting aside the order of the learned Senior Civil Judge, Bhimavaram, in I.A. No.935 of 2017 in O.S.No.60 of 2017 dated 11.10.2018. 7 Consequently, the above petition stands allowed. The suit promissory note (Ex.A1) shall be forwarded to Truth Labs, Hyderabad, subject to the petitioner (defendant) producing such documents of the contemporaneous period of the suit promissory note bearing the admitted signatures of the petitioner like registered documents, account opening forms in any bank or any other document submitted to any bank in the usual course of business by her etc., in the Court below for comparison by the hand-writing expert. For the above purpose, the petitioner shall deposit Rs.10,000/-(Rupees ten thousand only) to meet the expenses for this exercise, tentatively. The petitioner shall produce such documents within fifteen (15) days of receipt of copy of this order by the trial Court or upon production of certified copy of this order by either of the parties.
Consequently, miscellaneous petitions pending, if any, in this revision petition, shall stand closed.
__________________________ M.VENKATA RAMANA, J Dt:16.08.2019 Rns 8 HONOURABLE SRI JUSTICE M.VENKATA RAMANA C.R.P.No.7858 of 2018 Date:16.08.2019 Rns 9