Andhra Pradesh High Court - Amravati
Kum. Palivela Ujwala Ram Chandra vs Basina Veera Venkata Surya Narayana on 21 November, 2022
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.2215 of 2022
Between:
Kum. Palivela Ujawala Ram Chandra,
D/o PVVS Appala Raju, D.No.9-6-6,
F.No.B2, Ashoka Castle,
Old Ravi College Street, Gandhinagar,
Kakinada.
... Petitioner/Defendant
And
Basina Veera Venkata Surya Narayana,
S/o Veerabadhra Rao,
Marine Engineer, Vasavi Nagar,
Vijayawada.
... Respondent/plaintiff
Counsel for the petitioner : Sri B.Narsingh Rao
Counsel for respondents : Sri T.Raghu Prasad
ORDER:
Defendant in the suit filed the above revision against the order dated 28.09.2022 in I.A.No.598 of 2022 in O.S.No.42 of 2021 on the file of the VII Senior Civil Judge, Vijayawada. 2
2. Plaintiff filed the suit for recovery of amount against the defendant on the strength of promissory note dated 22.03.2017.
3. The defendant filed written statement and contended inter alia that the defendant did not borrow an amount of Rs.15.00 lakhs from the plaintiff on two occasions i.e. an amount of Rs.2.00 lakhs on 16.03.2017 and an amount of Rs.13.00 lakhs on 22.03.2017; that the suit promissory note is nothing but forged and fabricated document; that the promissory note on its face is illegal, invalid and void document and that the suit promissory note appears on its face to be altered; that the plaintiff is friend of father of the defendant and after death of father of the defendant, disputes with regard to property arose between one Dudi Chakramma with family of the defendant; plaintiff made believe the mother of the defendant that to get rid of the said disputes, a parallel litigation has to be generated; that under the said belief caused by plaintiff the mother of the defendant as requested by the plaintiff delivered pattadar pass book relating to defendant's land; that plaintiff made defendants to sign on several blank papers, promissory notes etc., as required by the plaintiff for 3 the purpose of the said parallel litigation; that the defendant and mother insisted the plaintiff to return those documents and plaintiff demanded Rs.15.00 lakhs.
4. Pending the suit, defendant filed I.A.No.598 of 2022 under Section 45 of Indian Evidence Act and under Sections 94 and 151 of CPC to send the disputed promissory note ExA.1 to Neutron Activation Analysis, BABC, Mumbai to determine the age of the ink available along with admitted handwriting of the defendant and plaintiff and for comparison of signatures and to ascertain the age of the ink of the attested signatures of the witnesses in comparison with the age of ink in the endorsement on the reverse of the promissory note.
5. In the affidavit filed in support of the petition, it was contended inter alia that the petitioner/defendant is seriously disputing the signature and dates on suit promissory note; that since the dates and endorsement saves limitation for filing of the suit, it has bearing on the result of the suit; that the body of promissory note and endorsement appears to be prepared simultaneously and made with same ink and hence, prayed to allow the petition.
4
6. Respondent/plaintiff filed counter and opposed the petition.
7. Trial Court by order dated 28.09.2022 dismissed the application. Against the same, present application is filed.
8. Heard learned counsel on both sides.
9. Learned counsel for the petitioner/defendant relied upon the orders of this Court in CRP Nos.6157 of 2018 and 2646 of 2019 and Criminal Revision Case No.546 of 2011. He would further contend that in view of the suspicion raised by the defendant, this application is filed to determine the age of the ink and that the trial Court did not consider the aspect that the defendant admitted the signature and that defendant has to discharge the legal burden. The application is filed to send the disputed document to compare the ink in consonance with the plea taken in the written statement. Hence, prayed to set aside the order of the trial Court.
10. Learned counsel for the respondent/plaintiff would contend that the application is filed only to drag the proceedings; that the defendant admitted execution of 5 promissory note in the written statement; that in view of the admission made in the written statement there is no need to send the same to the expert and the trial Court rightly exercised its jurisdiction and dismissed the application.
11. In the light of the above contentions, the point that arose for consideration is:
Whether the trial Court properly exercise jurisdiction vested it and refused to send the promissory note to expert to determine the age of ink?
12. The suit is filed for recovery of amount on the strength of a promissory note. Defendant in the written statement admitted execution of promissory note. However, explained under what circumstances the promissory note came into existence in the written statement. By filing I.A., defendant is seeking to send the promissory note to expert to determine age of the ink on the body of the promissory note with the age of the ink that is available on the endorsement dated 14.12.2020 on the reverse of the promissory note.
13. In G.V.Rami Reddy vs. D.Mohan Raju in 2019 (2) ALD 481 the learned Single Judge of this Court considered the 6 aspect of sending the document to expert to ascertain the age of the ink and held as follows:
"Therefore, in a given case, though the ink or pen was manufactured in yester years, there is a possibility that a person may either deliberately or un-knowingly use such ink/pen to make a writing or Signature several years after its manufacture. In such an event, mere determination of the age of ink/writing by an expert will not clinch the issue as to when exactly the maker has written/signed the document Therefore, the Courts must take note of this aspect while appreciating the rival contentions."
14. In Kambala Nageswara Rao vs. Kesana Balakrishna1 held as follows:
The application, no doubt, is filed under Section 45 of the Act, and it is not uncommon that such applications are filed in the suits for recovery of money on the strength of promissory notes. However, the prayer in the I.A is some- what peculiar. Even while not disputing his signature on the promissory note, the petitioner wanted the age thereof to be determined. Several complications arise in this regard. The mere determination of the age, even if there exists any facility for that purpose; cannot, by itself, determine the age of the signature. 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. If there was a gap of 10 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. It is only in certain forensic cases, that such questions may become relevant. The trial Court has taken correct view of the matter and dismissed the application 1 AIR 2014 (AP) 37 7
15. In Shashi Kumar Benerjee and Ors vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Ors.2, the Constitutional Bench of the Hon'ble Apex Court at Para No.23 held 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 p. 464 says even with respect to chemical tests that "the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no. reliable data 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."
16. In Uppu Jhansi Lakshmi Bai vs. J. Venkateswara Rao3, learned single judge was pleased to extract passage from author Osborn book to the following effect:
"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 excuse to make a guess and furnish no reliable data upon which a definite opinion can be based as can easily be demonstrated by fair tests on documents of known age."2
AIR 1964 SC 529 3 AIR 1994 AP 90 8
17. In Polana Jawaharlal Nehru vs. Maddirala Prabhakara Reddy4, learned Single Judge of composite High Court held as follows:
15. 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.4
2017 (3) ALT 712 9 In some countries data relating to induction of various inks is kept for ready reference.
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 ease 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.
16. Therefore, it is clear that no useful purpose will be served by referring the document to hand writing expert.
18. In Surabhi Kishan Rao vs. Bejhjanki Indira5 in, it is held as follows:
"8. As compared to the decisions Uppu Jhansi Lakshmi Bai (1 supra) and Namineni Audi Seshaiah (2 supra), I am of opinion that the judgment of the Supreme Court referred in Shashi Kumar Banerjee (3 supra) as well as reasoning in judgment in Kambala Nageswara Rao (4 supra) are more persuasive; and that the chemical tests to determine age appear to be a mere excuse to make a guess and would not furnish any reliable data upon which a definite opinion can be based. There is also confusion 5 MANU/TL/0184/2019 = AIR 2020 15 10 created by the date when the ink used in the pen to make the handwriting was manufactured and the gap between the dates of manufacture of the ink of writing on a document using the said ink.
9. The trial Court has rightly followed the decision in Kambala Nageswara Rao (4 supra) and declined relief to the petitioner."
19. The trial Court also considered the observation in J.Purushottam vs. State of Telanganana in Crl. R.C.No.2363 of 2018 wherein it was held as under:
"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 five years old at the time of institution of the suit or there years old at the time of institution of the suit, is not likely to bring any fruitful result. There is an interesting portion relating to ink age in a book handwriting forensic which".
20. In the facts of the case on hand, defendant admitted execution of promissory note, however explained in the written statement as to under what circumstances the note was executed. Defendant also raised other pleas like alteration of date. All these aspects will be decided by the trial court on appreciation of evidence available on record. In the facts and circumstances of the case, as rightly observed by the Court below no purpose is served in referring the document to determine the age.
11
21. In the light of the expressions in the cases referred to supra i.e. Kambala Nageswara Rao's case and Polana Jawaharlal Nehru's case since the defendant admitted her signature, there is no illegality in the order of the trial Court and the reasons assigned by the Court below are neither illegal nor perverse warranting interference by this Court under Art 227 of the Constitution of India. Hence, the revision is liable to be dismissed.
22. Accordingly, the Civil Revision Petition is dismissed. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J Date : 21.11.2022 KA 12 141 HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CIVIL REVISION PETITION No.2215 of 2022 Date : 21.11.2022 KA