Andhra HC (Pre-Telangana)
Budumuru Vijayanandh vs Potnuru Bhagyalakshmi on 19 July, 2004
Equivalent citations: AIR2005AP35, 2004(5)ALD98, 2004(6)ALT813, II(2005)BC568, AIR 2005 ANDHRA PRADESH 35, (2004) 5 ANDHLD 98, (2004) 6 ANDH LT 813, (2005) 1 CIVLJ 257, (2005) 2 BANKCAS 568
ORDER V.V.S. Rao, J.
1. The defendant in O.S. No. 183 of 2003 on the file of Principal Junior Civil Judge, Srikakulam, is the petitioner in the Civil Revision Petition filed under Article 227 of the Constitution of India. The respondent herein filed suit for recovery of a sum of Rs. 30,000/- (Rupees thirty thousand only) based on a promissory note. The petitioner filed written statement denying the execution of the promissory note or any liability for the suit amount. The matter went into trial. P.Ws.1 to 3 were examined. At that stage, the petitioner herein filed Interlocutory Application being I.A. No. 1382 of 2003 under Section 45 of the Indian Evidence Act, 1872 ('the Act' for brevity), praying the trial Court to send the suit promissory note, written statement and vakalat to Handwriting Expert for comparison of signature of the petitioner and opinion of Expert. By impugned order dated 17.12.2003, the learned trial Judge dismissed the application on the ground that there are no bonafides in the Interlocutory Application and the petitioner is trying to drag the matter.
2. Sri A. Rama Rao, learned counsel for the petitioner submits that the impugned order suffers from error apparent on the face of record and that it is perverse. He would urge that when the petitioner in the written statement categorically averred that he never borrowed any amount from the respondent and never executed promissory note, the trial Court grossly erred in observing that the petitioner's written statement did not make any averments to that effect.
3. Sri P. Veera Reddy, learned counsel for the respondent submits that when a disputed document is sent to Government Examiner of Questioned Documents or Handwriting Expert, the party seeking such relief under Section 45 of the Act cannot insist that the documents already filed before the Court should only be sent for comparison. He would contend that it is always open to the learned Judge to ask the petitioner to give the specimen signatures in the Court.
4. In the written statement of the petitioner, the petitioner alleged in para Nos. 2, 3 and 4 as under.
2) This defendant submits that he never borrowed any amount from the plaintiff at any time and never executed any promissory note in favour of the plaintiff.
3) The defendant submits that he is running a business under the name and style of Satyasai Agro Tech at Budumuru in Laveru Mandal of Srikakulam District.
4) This defendant submits that the plaintiff created the false and frivolous promissory note and file this suit only to harass the defendant.
5. By impugned order dated 17.12.2003, the learned trial Judge rejected the Interlocutory Application observing as under.
6. It was no where contended by the petitioner in the written statement that the signature on the promissory note not belongs to him, he simply stated in his written statement that the plaintiff created the promissory note. The Advocate filed vakalat on behalf of the petitioner in the suit and written statement was also filed by the petitioner and P.Ws.1 to 3 were examined and the plaintiff's evidence was closed and the matter is posted for defendant's evidence and after taking adjournments, the defendant filed this petition. Hence, I find the petitioner filed this petition only to drag on the proceedings of this case, there are no merits in the present petition.
7. In the result, the petition is dismissed.
8. After perusing para Nos. 2, 3 and 4 of the written statement together with extracted portion of the impugned order of the learned trial Judge, I am convinced that there is a total misdirection with regard to facts. When the petitioner in the written statement contended that he never borrowed any amount nor he never executed any promissory note and that the plaintiff/respondent created false and frivolous promissory note to file suit, it was not proper for the learned Judge to observe that the petitioner/defendant no where contended in the written statement that the signature in the promissory note does not belong to him. The sum and substance of para Nos. 2, 3 and 4 of written statement amounts to an averment that the suit promissory note is forged one and the signature does not belong to the petitioner as alleged. In such an event, the Court ought to have resorted to Section 45 of the Act and send the document for identification of handwriting. Therefore, I am not able to accept the submission of learned counsel for the respondent.
9. In so far as the second submission of learned counsel for the respondent is concerned, there is force in the same. Section 45 of the Act with its illustrations reads as under.
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.
10. Such persons are called experts.
Illustrations
(a) The question is, whether the death of 'A' was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which 'A' is supposed to have died, are relevant.
(b) The question is, whether 'A', at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by 'A' commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by 'A'. Another document is produced which is proved or admitted to have been written by 'A'.
11. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.
12. Discretion lies with the Court to form an opinion, inter alia as to identity of handwriting. In so doing, it is always permissible for the Court, again its discretion-to rely on the opinion of person specially skilled in questions as to identity of handwriting. Illustration (c) of Section 45 of the Act leads to an inference that when handwriting or signature on document in question and another document is produced, which is proved or admitted to have been written by the person whose signature is disputed, the opinion of experts on the question whether the two documents were written by the two persons is relevant. Therefore, for the purpose of comparison, the trial Court is bound to obtain the specimen signatures of the person who disputes his/her signature. Such obtaining of specimen signatures must be in the open Court. If the same is not done, it is well settled that the same would not amount to compelling such person to give evidence adverse to him. If there are already documents on record, which are proved to have been written or signed by the person disputing signature or handwriting, it is always open to the Court to send the specimen signatures, disputed signatures or handwriting on documents, which are proved to have been written or signed by such person for comparison. But as the law stands, the Court has no power to compel a person who disputes handwriting to produce documents anterior to the litigation. However, it is always open to the opposite party to bring another document which is admitted to have been written by the person disputing the signature. In that view of the matter, I am not able to accept the submission of the learned counsel for the respondent that the petitioner herein may be compelled to produce the documents on which he admits his signature.
13. In the result, for the above reasons, the Civil Revision Petition is allowed as indicated herein above. The learned trial Judge may send the suit promissory note in O.S. No. 183 of 2003 on the file of the Principal Junior Civil Judge, Srikakulam, to handwriting expert, after obtaining the specimen signatures of the petitioner herein in the open Court.