Andhra Pradesh High Court - Amravati
G.Krishna vs T.Ravindra Kumar on 25 February, 2022
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No.40 of 2022
ORDER:
The present Civil Revision Petition is filed under Article 227 of the Constitution of India against the Orders dated 16.12.2019 passed in I.A.No.1216 of 2019 in O.S.No.128 of 2016 on the file of the IV Additional District Judge, Kadapa, Kadapa District.
2. Heard Mr.Solomon Raju Manchala, learned counsel for the petitioner and Mr.P.Sashidar Reddy, learned counsel for the respondent.
3. The petitioner herein is the defendant in the above mentioned suit. The respondent/plaintiff filed the suit for recovery of an amount of Rs.25,60,998/- on the strength of three promissory notes alleged to have been executed by the petitioner/defendant in his favour. The petitioner/defendant filed an application vide I.A.No.1216 of 2019 under Section 45 of the Indian Evidence Act R/w Section 151 of Code of Civil Procedure (for short "CPC") to send Exs.A.1 to A.3 suit promissory notes for determining the age of ink and age of the paper for expert‟s opinion to the Nutron Activation Analysis, Bhabha Atomic Research Centre (B.A.R.C), Mumbai. The said application was resisted by the respondent/plaintiff and ultimately by an Order dated 16.12.2019, the I.A was dismissed. Hence, the present Civil Revision Petition.
4. The learned counsel for the petitioner/defendant submits that the Order under Revision is illegal and constitutes irregular exercise of jurisdiction by the learned Trial Court. He submits that a specific stand was taken in the written statement that the petitioner/defendant had never executed the alleged promissory notes i.e., Exs.A.1 to A.3 and to substantiate the same, the application under Section 45 of the Indian 2 NJS, J Crp_40_ 2022 Evidence Act was filed. He submits that if the alleged promissory notes (Ex.A.1 to A.3) are sent to the expert for determining/ascertaining the age of ink, age of petitioner‟s/defendant‟s signatures, age of paper and other writings, the truth would come out. He further submits that the opinion of the expert would aid in determining the „lis‟ between the parties. He further submits that no prejudice would be caused to the respondent by sending the documents for expert‟s opinion. He submits that the learned Trial Court instead of considering the matter in the correct perspective and allowing the application, erroneously rejected the same on untenable grounds. Making the said submissions, the learned counsel seeks to allow the Revision Petition by placing reliance on the decision of a learned Judge in Labbala Sundara Rao Chowdary vs Voona Ramachandra Gupta1.
5. The learned counsel for the respondent, on the other hand, supported the Order under Revision by placing reliance on the decisions in V.Siva Kameswara Rao vs N.Satyanarayana2 and Surabhi Kishan Rao vs Bejhjanki Indira3.
6. This Court has considered the submissions made by the learned counsel for the respective parties, perused the material on record and gone through the decisions relied on by them. On an analysis of the rival contentions with reference to the decisions referred to supra, the point that falls for consideration by this Court is whether the Order under Revision warrants interference by this Court, in the facts and circumstances of the case?
1 Civil Revision Petition No.2646 of 2019 2 Civil Revision Petition No.382 of 2019 3 Civil Revision Petition Nos.3111 and 3153 of 2014 3 NJS, J Crp_40_ 2022
7. Before dealing with the contentions advanced by the learned counsel for the petitioner/defendant, it may be appropriate to mention here that as seen from the affidavit filed in support of I.A.No.1216 of 2019, the petitioner/defendant issued four blank promissory notes and four blank cheques with his signatures on 22.07.2010, as a surety/security for the immovable properties mortgaged in favour of the respondent/plaintiff in relation to a loan transaction between one Mr.V.Mallikarjuna Rao and 3 Others and the respondent/plaintiff and that the said promissory notes were marked as Exs.A.1 to A.3. The stand taken, as seen from the said affidavit is, that on 01.12.2013 the petitioner/defendant had not executed any promissory notes and in the year 2016, the respondent/plaintiff prepared Exs.A.1 to A.3 and in those circumstances sending the said exhibits to expert‟s opinion for determining the age of the petitioner‟s/defendant‟s signature, the age of the ink of his signatures, age of paper of Exs.A.1 to A.3 and other writings etc., is essential to prove his case. Thus, it would be seen that there is no dispute with regard to signatures on Exs.A.1 to A.3. Under the said circumstances, the learned Trial Court while considering the matter with reference to Section 20 of the Negotiable Instruments Act, rejected the application filed by the petitioner. Though the learned counsel submits that the said view of the learned Trial Court is erroneous and seeks a direction in terms of the decision in Labbala Sundara Rao‟s (referred (1) supra), this Court is not inclined to accept the same.
8. Labbala Sundara Rao‟s case is also a case where the defendant in a suit for recovery of the amount on the strength of a promissory note took a plea that he did not execute the suit promissory note and that it is 4 NJS, J Crp_40_ 2022 fabricated. An I.A under Section 45 of the Indian Evidence Act was filed to send the alleged promissory note for examination by the Truth Labs and Truth Finders, Hyderabad and the said application was dismissed. A learned Judge of this Court, looking to the facts of the said case, while opining that the object of sending the document/promissory note for examination to ascertain the age of ink is to appreciate the rival contentions of both the parties in the suit and to find out as to whether the promissory note is genuine or not, set aside the Order passed by the Trial Court. However, it is not discernible as to whether there is admission/denial of the signatures on the alleged promissory note, unlike in the present case. Therefore, this Court is not inclined to accept the contention of the learned counsel for the petitioner basing on the above referred decision.
9. On the contrary, the decisions relied on by the learned counsel for the respondent applies aptly to the facts of the present case. In V.Siva Kameswara Rao‟s case (referred (2) supra), a learned Judge of this Court was dealing with a Revision Petition under Article 227 of the Constitution of India, wherein an Order rejecting the application under Section 45 of the Indian Evidence Act to send the suit promissory note to a Handwriting Expert to determine the age of ink of the signature on the promissory note to disprove that the same was not executed on a particular date was under challenge. It is a case where the defendant in the suit admitted his signature on the suit promissory note, however taken a plea that he has not executed the suit promissory note and that it was created by the plaintiff by obtaining blank promissory notes. The learned Judge while referring to various decisions with reference to application 5 NJS, J Crp_40_ 2022 under Section 45 of the Indian Evidence Act, relying on the decisions of a learned Judge in Polana Jawaharlal Nehru vs. Maddirala Prabhakara Reddy4 was not inclined to interfere with the Order of the Trial Court and dismissed the Revision Petition.
10. In Polana Jawaharlal Nehru‟s case (referred (4) supra), the learned Judge was dealing with a matter wherein the Trial Court dismissed two applications filed by the petitioner/defendant seeking to reopen his evidence and also for sending the suit promissory note for examination to a Handwriting Expert. In the said case, similar stand like in the present case was taken by the petitioner/defendant, wherein it was pleaded that he signed on an empty promissory note and a cheque in August, 2010 and the plaintiff filled up the empty portion of the promissory note and the cheque in the month of June, 2014. There is no denial of his signature in the suit promissory note. Similar relief as sought for in the present case for sending the promissory note to the Handwriting Expert to fix the age of ink used for putting the signature and the age of the ink used for filling up the matter in the empty promissory note. The learned Judge while referring to the Judgment of the Hon‟ble Supreme Court in Shashi Kumar Banerjee and Ors., vs Subodh Kumar Banerjee 5 expressed the view "that the Apex Court cautioned that even if the disputed documents are referred to the experts and their opinion obtained, such opinion constitutes only an opinion and cannot take the place of substantive evidence". The learned Judge referred to a decision of a learned Judge of Madras High Court in A.Sivagnana Pandian vs. 4 Civil Revision Petition No.6069 of 2016 5 Appeal (Civil) 295 of 1960 6 NJS, J Crp_40_ 2022 M.Ravichandran6 etc., and dealt with the relevant aspects about sending the documents for Handwriting Expert vis-a-vis for the purpose of finding out the age of the ink etc., The relevant portion of the said decision reads thus:-
"14. 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 irontannin 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.
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.6 Crl. R.C.(MD) No.145 of 2010 7
NJS, J Crp_40_ 2022 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."
11. In the light of the above position, the learned Judge was not inclined to interfere with the Order under Revision therein. Though this Court finds that there are divergent views with regard to sending the disputed documents, for opinion of the expert, more particularly in the suits filed on the strength of promissory notes, the fact situation in the above referred decisions is similar to the case on hand and therefore this Court is persuaded to follow the above referred decisions.
12. In the aforesaid factual and legal position of the matter, this Court is not inclined to interfere with the Order under Revision and the Civil Revision Petition is accordingly dismissed. No order as to costs.
As a sequel, miscellaneous applications, if any, pending shall stand closed.
__________________ NINALA JAYASURYA, J Date: 25.02.2022 IS 8 NJS, J Crp_40_ 2022 THE HON'BLE SRI JUSTICE NINALA JAYASURYA Civil Revision Petition No.40 of 2022 Date: 25.02.2022 IS