Andhra Pradesh High Court - Amravati
Pendyala Chakrarao vs Somu Rayudu on 22 January, 2020
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Civil Revision Petition No.3380 of 2019
ORDER:
The challenge in this C.R.P. filed at the instance of petitioner/defendant under Article 227 of the Constitution of India is to the order dated 08.11.2019 in I.A.No.983/2019 in O.S.No.97/2018 passed by the learned Senior Civil Judge, Peddapuram, East Godavari District, dismissing the petition filed by the petitioner/defendant under Section 45 of the Indian Evidence Act imploring the Court to send the suit promissory note to the Expert to determine the age of ink used in writing the body of suit promissory note and age of the ink used in the signature of the defendant on the suit promissory note.
2. O.S.No.97/2018 is filed by the respondent/plaintiff with the averments that the defendant for his needs borrowed Rs.4.00 lakhs from the plaintiff on 30.11.2015 and executed a suit promissory note and later he failed to repay the amount and in spite of issuing legal notice dated 19.06.2018, he did not honour the notice and returned the same without receiving it. Hence, the suit.
(a) The defendant filed counter and opposed the suit. While denying the execution of the pronote, he inter alia contends in the written statement that the marriage of his son was fixed with the bride of Kathipudi and Betrothal ceremony was celebrated and thereafter 2 the defendant's son fell sick and medical tests revealed that his kidneys were failed and his survival was bleak. So considering the welfare of the bride the defendant's son refused to marry her.
However, the parents of bride demanded for return of the expenses incurred by them for conducting the Betrothal function. At that time the son of plaintiff intervened and settled the issue and paid amount to the father of bride and in turn obtained the signature of the defendant on a printed blank promissory note. Later the son of defendant died and as he was in bereavement, could not meet the son of plaintiff. The defendant contended that the plaintiff and his son fabricated the suit promissory note as if the defendant executed the promissory note for Rs.4.00 lakhs by borrowing the said amount. He staunchly denied execution of the suit promissory note.
(b) While so, when the suit in O.S.No.97/2018 was coming up for arguments, the defendant filed I.A.No.983/2019 under Section 45 of the Indian Evidence Act requesting the Court to refer the suit promissory note (Ex.A1) to the Expert to determine the difference in the age of the ink relating to the signature portion of defendant and the ink used in writing the body of said promissory note obviously to establish that the signature on Ex.A1 and writing on the body portion of the promissory note were not contemporaneous and that the body portion was filled up subsequently and thus, Ex.A1 was fabricated. 3
(c) The trial Court dismissed the petition on the main observation that the defendant did not mention in his written statement about the exact date when he allegedly signed on the empty promissory note and handed over to the respondent/plaintiff and he also did not mention the said fact in I.A.No.983/2019. On the other hand, during the cross-examination the defendant (DW1) categorically admitted his signature on Ex.A1. In those circumstances, the trial Court held, there was no need to refer Ex.A1 to the Expert.
Hence, the C.R.P.
3. Heard Sri T.V.Jaggi Reddy, learned counsel for petitioner, and Sri V.Venu Gopala Rao, learned counsel for respondent.
4. Fulminating the impugned order, learned counsel for petitioner would submit that with the advancement of Science and Technology the determination of the age of ink with exactitude is now possible and in fact this High Court in G.V.Rami Reddy v. D.Mohan Raju1 observed that there is an organization called Nutron Activation Analysis, BARC, Mumbai, which is a Central Government organization which undertakes the task of determining the age of ink/writing of a document. Learned counsel would thus argue that since such facility is available, the petitioner's failure to mention about the date on which he signed on Ex.A1 in the written statement 1 2019 (4) ALT 400 (A.P.) 4 and in I.A.No.983/2019 is not a consequence to dismiss the petition. In expatiation, he would submit that in spite of the petitioner's failure to mention the date of his signing on Ex.A1 still Ex.A1 can be referred to the aforesaid Organization to determine the difference in the age of ink between the signature portion of defendant and body portion of Ex.A1. If it is scientifically established that there is a reasonable gap between the age of two inks, certainly that finding will help the defendant to establish his defence. He thus prayed to allow the C.R.P.
5. In oppugnation, learned counsel for the respondent opposed the C.R.P. contending that even if the difference in the age is ascertained by the said organization, that alone cannot be a ground to believe the defence version of the defendant because as observed in G.V.Rami Reddy's case (supra) there was every possibility for the defendant to use old ink at the time of signing on Ex.A1 so as to suit his defence that he was going to plead. Since such determination is not a determinative factor to uphold the contention of the defendant, there is no point in referring Ex.A1 to Nutron Activation Analysis, BARC, Mumbai.
6. The point for consideration is whether there are merits in the C.R.P. to allow?
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7. I gave my anxious consideration to the above respective arguments of both the counsel. As far as the availability of Forensic Experts to determine the age of ink/pen is concerned, in G.V.Rami Reddy's case (supra) this Court observed thus:
"7. Thus, from the above, it is clear that there is an organization called Nutron Activation Analysis, BARC, Mumbai, which is a Central Government Organization, which undertakes the task of determining the age of ink/writing of a document."
Therefore, there can be no scintilla of doubt about the availability of the Forensic Experts to determine the age of ink. In that view of the matter, merely because the defendant has not disclosed in the written statement and in I.A.No.983/2019 about the date on which he signed on Ex.A1, that cannot be a ground to discard his petition. His categorical plea in the written statement is that when the parents of bride demanded him to pay the expenses incurred by them for conducting the Betrothal function, the plaintiff's son intervened and paid that amount and in turn obtained the signature of the defendant on a blank promissory note. Subsequently the plaintiff and his son have fabricated the suit promissory note by filling up the body portion. Hence, according to the defendant there is an age gap of the ink between his signature portion and body portion of Ex.A1. It is for the aforesaid Central Government Organization, BARC on reference to tell whether the age determination is possible or not. Therefore, merely because date of signature was not revealed by the defendant, 6 his request to refer Ex.A1 to the above organization cannot be refused. Therefore, I am of the considered view that Ex.A1 can be referred to the BARC for the above purpose.
8. Now, coming to the arguments raised by the learned counsel for the respondent/plaintiff, in G.V.Rami Reddy's case (supra) this Court has sounded a note of caution to the subordinate Courts that mere determination of the age of ink is not sufficient to jump into a conclusion. It observed as follows:
"10. Therefore, in a given case, though the ink or a 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. This point is answered, accordingly."
Therefore, the Expert opinion should be evaluated with reference to the facts and circumstances of the individual case.
9. In the result, this C.R.P. is allowed setting aside the impugned order and consequently I.A.No.983/2019 is allowed and the trial Court is directed to refer the suit promissory note-Ex.A1 to Nutron Activation Analysis, BARC, Mumbai for determining the age of ink in the signature portion of the defendant and age of the ink used in the body portion and to give its report. Needless to emphasize, the defendant has to bear the necessary expenditure. No costs. 7
As a sequel, interlocutory applications pending, if any, shall stand closed.
_______________________ U. DURGA PRASAD RAO 22.01.2020 MVA