Punjab-Haryana High Court
Chamkaur Singh vs Mithu Singh on 29 October, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CR No.3434 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.3434 of 2013 (O & M)
Date of Decision:29.10.2013.
Chamkaur Singh
....Petitioner
Versus
Mithu Singh
.....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether reporters of the local papers may
be allowed to see the judgment? Yes
2) To be referred to the Reporters or not? Yes
3) Whether the judgment should be reported Yes
in the Digest?
Present: Mr. M.J.S.Bedi, Advocate,
for the petitioner.
Mr. Malkeet Singh Balianwali, Advocate,
for the respondent.
****
PARAMJEET SINGH, J.(Oral)
Calling of experts as witnesses by parties to the litigation in India at least relates back from the date when the Evidence Act was enforced in India in the year 1872.
Through this civil revision petition under Article 227 of the Constitution of India, the petitioner assails the order dated 07.05.2013 (Annexure P-3) passed by learned Additional Civil Judge (Sr. Divn.), Phul whereby application filed by the petitioner-defendant for sending the pronote and receipt in dispute (in short "the questioned documents") Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.3434 of 2013 2 to the State Forensic Science Laboratory (in short "SFSL") has been dismissed.
Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that respondent-plaintiff filed suit for recovery of ` 4,03,200/- on the basis of questioned documents. Upon notice, the petitioner-defendant put in appearance through counsel and filed his written statement. Various objections were taken. One of the objections was that questioned documents were forged and fabricated and material alterations and additions had been made therein. On pleadings of parties, issues were framed and parties led their respective evidence. The petitioner-defendant examined V.B.Bhatnagar, handwriting and fingerprint expert in his evidence and the respondent- plaintiff examined Anil Gupta, handwriting and fingerprint expert in rebuttal evidence. Since the reports of both these experts were contradictory, the petitioner-defendant moved application for sending the questioned documents to the SFSL for comparison of alleged signatures of the petitioner-defendant and also alleged alteration and addition in the questioned documents, which has been dismissed vide impugned order dated 07.05.2013. Hence, this revision petition.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner has vehemently contended that opinions of two handwriting experts are contradictory. The handwriting expert of the petitioner categorically stated that the Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.3434 of 2013 3 signatures over the questioned documents materially differ from the admitted/standard signatures of the petitioner-defendant, whereas, the handwriting expert of the respondent-plaintiff stated that the signatures over the questioned documents tally with the admitted signatures. In reply to the application for comparison of questioned documents by the government agency, the respondent had averred that he has no objection from getting the disputed signatures examined from any forensic science laboratory. In the above circumstances, the Court should seek opinion from an independent expert.
Per contra, learned counsel for the respondent has vehemently contended that neither there is any variation in the signatures on the questioned documents, nor there is any material alteration and addition. The report of the expert examined by the petitioner-defendant is a doctored report and the Court has power to examine the signatures itself. The sending of questioned documents to the SFSL would delay the decision of the case. The expert examined by the respondent-plaintiff in rebuttal is a qualified expert.
Considering the rival contentions raised by learned counsel for the parties, it appears that the primary controversy with regard to the questioned documents is whether these are forged and fabricated and have material alterations and additions. Although the application has been filed for comparison of the questioned documents from SFSL as an additional evidence, but perusal of application reveals that in fact, it is under Section 45 of the Indian Evidence Act, 1872 read with Order Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.3434 of 2013 4 XXVI Rule 10-A of the Code of Civil Procedure, 1908.
Piquant situation arises when expert opinion on handwriting is countered by contrary expert opinion. Often, a Court is faced with conflicting evidence given by the handwriting experts. This obviously is disruptive to trial and generally weakens the credibility of expert evidence. Assuming that the experts examined by both the parties are suitably qualified, honest and their evidence is based on established principles and scientific methods, logically there should be no divergent opinion especially the diametrically opposite as are witnessed in many cases. When there is a dichotomy in opinion, one of the opinion will be correct and other will obviously be erroneous.
Ordinarily, signature and handwriting of a person who is alleged to have signed or written document in question can be proved (i) by calling a witness who wrote the document, (ii) by admission of a person against whom the document is tendered and (iii) by calling a person as witness who saw the document being written/signed. The first two methods are excluded as the scribe of the questioned documents is an interested party. Third method is not feasible as more often there is no eye-witness who will be only seeing the writing or signing of the documents and have no other role to play regarding the said document. Thereafter, the only method for proving handwriting and signature is as per the provisions of the Indian Evidence Act, 1872 (in short "the Act"). Sections 45, 47, 67 and 73 of the Act are relevant to determine the questions, as arise in the present petition, which read as under: Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.3434 of 2013 5
"45. Opinions of experts.-When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.
47. Opinion as to hand-writing, when relevant.- When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
67. Proof of signature and handwriting of person alleged to have signed or written document produced. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
73. Comparison of signature, writing or seal with others admitted or proved. In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.3434 of 2013 6 any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person."
As per Section 67 of the Act, the person who produces a document which, he alleges, is executed, signed or written by a certain person, has to prove that fact. As to the way in which the signature/handwriting of a person can be proved are the relevant factors. Besides the methods mentioned aforesaid, the other method is under Section 45 of the Act, according to which the Court may receive the evidence of a person, who has acquired an expertise in the matter apart from the person possessing professional qualification on the subject. Section 47 of the Act permits the Court to admit the opinion of an handwriting expert and also permits the Court to admit the opinion of a person, who is acquainted with that person's handwriting. Section 73 of the Act enables the Court to compare the handwriting in question with any handwriting which is admitted or proved to be the handwriting of the person in question and this section gives the power to the Court to direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare them with the writing of questioned documents. When the opinion of the expert has been taken, the Court may verify the opinion or to test its reliability proceed under Section 73 of the Act to make the comparison by itself. Under Section 67 of the Act, the execution of a document can be established by proving the identity of handwriting or signature on the questioned documents. The Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.3434 of 2013 7 problem arises due to conflicting opinions of the experts. The fundamental problem with the expert opinion on handwriting is the non- scientific nature of expert opinion on comparison. While comparing handwriting samples, number of variables are compared. The variable on which the experts base their opinions are only evidence of some tendencies which can also be affected by numerous extraneous factors, such as state of mind, haste, self-consciousness, intoxication, nature of the paper, type of pen etc. Generally, two methods related to identification of handwriting are Graphoscopy, which is study of shape of letter and the manner of their re-production and Graphometry, which is the measurement of letters. I need not go into further details, as in the present case, only issue is whether the opinion of the third expert be received in evidence. Under Section 45 of the Act, the opinion of expert as to the identity of handwriting is relevant in determination of identity of handwriting before the Court. Although the evidence of handwriting expert is a weak type of evidence yet the Court has power under Section 73 of the Act to examine the handwriting itself.
In Barindra Kumar Ghose & Ors. v. The Emperor, reported in XIV CWN 1114 at page 1117, it was held as under:
"A document may be used in evidence for the purpose of affecting some one with knowledge of its contents regardless of whether the contents are true or false, or for the purpose of proving the truth of that which it contains. But from the fact that a document may be relevant for the first purpose it by no means follows that it is relevant also for the second. Excluding exceptional Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.3434 of 2013 8 cases, a statement made in a private document is not by itself proof of its truth or any more admissible to prove the truth of the matter stated than an oral statement by the same person would be. But at the same time a statement whether oral or written can be used against a person to prove the truth of the matter stated, if, as against him, it can be regarded as an admission. But the facts must be proved by virtue of which it can be regarded as an admission."
Hon'ble Supreme Court in Tarak Nath Sha vs Bhutoria Bros. Pvt. Ltd. And Ors. AIR 2002 SC 2063, it has held as under:
"Once a document is properly admitted the contents of that document are also admitted in evidence though those contents may not be conclusive evidence. The Division Bench was also considering the power of the Court to compare signatures in exercise of power under Section 73 of the Evidence Act and held that the Court is not an handwriting expert. The Court does it only through its visual experience. The comparison of signatures by expert is a piece of evidence. The opinion of the expert is not binding on the Court. Ordinarily, the Court should not take upon itself the responsibility of comparing signatures when disputed. Those are matters of intrinsic technicalities requiring some amount of technical expertise. A signature apparently may look alike but when examined by experts, various flaws may be detected. But without such expert examination, the Court cannot for sure accept the signature of the author denying it."
In Thiruvengadam Pillai v. Navaneethammal & Anr. 2008 (4) SCC 530, the Hon'ble Supreme Court held as under:
"When there is a positive denial by the person Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.3434 of 2013 9 who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impression. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. The Court should avoid reaching conclusions based on a mere casual or routine glance or perusal."
In view of Tarak Nath (supra), the Court is not an handwriting expert. The Court does it only through its visual experience. Ordinarily, the Court should not take upon itself the responsibility of comparing signatures when disputed, as in such matters technical expertise is necessary. In view of the above discussion and the fact that the trial Court has to determine a fact and to give weight and see credibility of experts' opinion, the opinion of third government expert which may be an independent opinion may help the Court to break the stalemate and mitigate the conflict between the opinions of private experts giving conflicting opinions. Although the opinion of the third expert is not binding upon the Court, yet the trial Court being a Court of fact has to arrive at independent decision and opinions of experts are not binding upon the trial Court as the Court is undoubtedly an expert of experts The conflicting opinions from equal number of experts between two sides is a common scenario in our legal system. It is true that a party Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.3434 of 2013 10 having a weak case concentrates on discrediting the witness by old tricks of "playing the man and not the ball". In the present case, since the parties are not opposed to the appointment of an independent handwriting expert, this Court in the peculiar facts and circumstances of the case deems it fit and appropriate that opinion of an expert of SFSL/Central Forensic Science Laboratory, Chandigarh (in short 'CFSL), which is a government agency would be necessary to resolve the conflict.
In view of above discussion as well as to do substantial justice and in the interests of justice, the impugned order dated 07.05.2013 is set aside, the instant petition is allowed and application moved by the petitioner-defendant for sending the pronote and receipt in dispute for comparison to the SFSL/CFSL is allowed. The trial Court can summon the SFSL/CFSL expert for comparison of the questioned documents i.e. pronote and receipt with standard writing/signature and to check alteration or addition or may direct the authorities of the Laboratory to inspect the pronote and receipt in Court and submit report. The expenses to be assessed by the trial Court for comparison of the pronote and receipt in dispute shall be borne by the petitioner-defendant.
Before parting with this order, it would be appropriate to mention that often a court is faced with conflicting opinions given by handwriting experts. The spirit of Sections 45 and 47 of the Act is that the expert whose opinion is sought on a questioned document, should indeed be an expert/skilled person in the field concerned. In Indian Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.3434 of 2013 11 Courts, the procedure is adversarial as opposed to the inquisitorial. The role of a Judge is to preside over the proceedings and rule on the points of law. The expert's overriding duty is to the Court, not to who call him. The opinion of the expert is very important and the court has to determine the lis keeping in view his opinion. Any lapse or mistake due to lack of skill by the expert can lead to grave and manifest injustice to a party. Keeping this in view, this Court is of the opinion that since the opinions of handwriting and fingerprint expert who examine the questioned documents, thumb impressions, signatures, forged documents etc. is very important and has a direct bearing on the credibility of evidence. The need of hour is to control, regulate, certify, accredit and devise means for registering expert witnesses who appear in Courts. The Departments of Justice and Home Affairs of the respective States of Punjab, Haryana and Union Territory, Chandigarh are directed to delve deep in the field and come out with viable mechanism to facilitate the justice dispensation by remedying the prevalent maladies/handicaps in system and the responsible officer of the Departments of Justice and Home Affairs of the respective States of Punjab, Haryana and Union Territory, Chandigarh should file affidavits of compliance within three months as far as proposed action on their part is concerned and prepare list of fingerprint and handwriting experts or forensic questioned documents examiners, who are qualified and skilled to practice this profession on full time basis. The State Governments should check their qualifications and credentials and confirm their credibility in this field. Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.3434 of 2013 12 A register of such practitioners should be drawn and rules be framed. A Code of ethics and conduct for their working should also be framed. Besides this, regulatory authority comprising of qualified concerned registered professionals and others related to field be also established to deal with the situations where there are conflicting opinions of experts and the consensus opinion of the Board of experts under the supervision of expert regulatory authority should be binding on the contesting parties.
Copy of this order be sent to the Administrative Secretaries of the Departments of Justice and Home Affairs of the States of Punjab, Haryana and Union Territory, Chandigarh for compliance.
To come up on 28.02.2014.
(Paramjeet Singh) Judge October 29, 2013 parveen kumar Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh