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4) Keshav Dutt v. State of Haryana (2010) 9 SCC 286

5) Sonam Tshering Bhutia v. State of Sikkim 2004 Criminal L.J.3136

6) Nirmal D/o Manohar Lal v. State of Punjab 2002 Crl. L.J.447

7) Rajmani v. State 67(1997) DLT 351 (DB)

8) Rajesh Kumar v. The State (Delhi Admn.) 1995 (32) DRJ 227

9) Heera Lal v. State 52(1993) DLT 231

7. Opposing the present appeal and refuting the arguments advanced by the Ld. counsel for the appellant husband , Mr. Manoj Goel, Ld. counsel representing the respondent wife with all vehemence contended that the appellant husband has played serious fraud not only upon the respondent wife but upon the Court as well and now he is trying to legitimize his illegal and fraudulent acts. The counsel argued that the law in this regard is well established that fraud vitiates everything and any benefit or advantage acquired by any party through fraudulent acts cannot be allowed to be retained by such party. The counsel also submitted that the procedural technicalities also cannot come in the way of undoing the effect of the fraudulent acts. The counsel further argued that the Trial Court rightly exercised its inherent powers vested with every civil Court under Section 151 CPC and, therefore, to say that the Court had become functus officio after passing the decree of divorce and could not have proceeded with the application of the respondent wife under Section 151 CPC is not sustainable. The counsel further argued that the appellant husband at this stage cannot take up the plea of denial of opportunity to him for cross- examination of the handwriting expert as neither the appellant husband himself pressed for his cross-examination and nor for producing any private hand writing expert as would be evident from the observations of the Court duly recorded in the judgment itself. The counsel thus submitted that it is trite that the judgment of the Court is final and conclusive as to what was argued before it and not what could be argued before it. The counsel further submitted that the appellant husband never took a stand before the learned Trial Court about inadmissibility of the FSL reports on the alleged ground of wrong invocation of provision of Section 293 of the Code of Criminal Procedure by the Trial Court. The argument advanced by the counsel for the respondent wife was that in a criminal case the burden of proof is much higher than in a civil case and, therefore, if the said FSL reports are admissible in criminal law then the same would hold good in civil proceedings with greater force. Counsel also submitted that the arguments raised by the counsel for the appellant husband that the report of the handwriting expert could not have been used without corroboration is completely misplaced as the opinion of the expert is straightway admissible even in the absence of examination of such expert witness in the witness box. The counsel further submitted that by virtue of Section 73 of the Evidence Act, 1872 the Courts have ample powers to compare the admitted writings and signatures with the disputed signatures and handwritings of any party to the suit or witness and while doing so, the court can also take the help of any other corroborative evidence including the opinion of handwriting expert and then form its own opinion. The counsel further submitted that in any event Civil Court always has the power to direct any scientific investigation through appointment of a Local Commissioner in terms of Order 26 Rule 10 and 10A CPC and such reports are evidence per se even without the examination of a Commissioner in witness box. The counsel further submitted that the argument advanced by the learned counsel for the appellant husband contending that the Trial Court has based its judgment on the report of the handwriting expert is completely misplaced as the learned Trial Court has relied upon clinching circumstantial evidence and other instances of fraud played by the appellant husband on the Court as well as on the respondent wife and the report of the handwriting expert was used only to corroborate the circumstantial evidence for pronouncing the impugned judgment. The counsel further submitted that the material already available on record clearly brings home the fraud played by the appellant husband on the Court as well as on the respondent wife. Citing various such circumstances, the counsel submitted that the Advocate Ms. Ranjna Kaur, who was allegedly engaged by both the parties for presenting the joint petitions under Section 13(B)(1) & 13(B)(2) of the Hindu Marriage Act, 1955 was untraceable despite innumerable efforts made by the Trial Court to serve her. The counsel further submitted that non-disclosure of her address by the said counsel on her vakalatnama, in contravention of circular No. STBC/CR/No.18/2006 dated 5.7.2006 of the Bar Council, is a clear indication of the fact that there was no lawyer on the rolls of the Bar Council with the name of Ranjana Kaur. The counsel thus submitted that somebody fictitiously and fraudulently used the name of Ms. Ranjana Kaur to play fraud upon the Court and upon the respondent wife. The counsel thus urged that appearance of such a person is in contravention of Section 29 and 30 of The Advocates Act, 1961. The counsel further placed reliance on the report dated 25.2.2009 submitted by the Delhi Bar Council stating therein that there is no person with the name of Ranjana Kaur enrolled with the Bar Council. The counsel further argued that disclosure of Bar Council enrolment number by every Advocate is mandatory in terms of instructions issued by the Bar Council of India and vakalatnama filed by the said Ranjana Kaur also did not carry her enrolment number. The counsel further argued that even Oath Commissioner before whom the affidavits of the parties were sworn and identified by Ms. Ranjna Kaur, Advocate could not be traced as necessary registration number and other particulars were missing in the seal of the Oath Commissioner. The counsel further argued that non-disclosure of these mandatory particulars is also in violation of the relevant rules framed under Notary Rules, 1956. The counsel further submitted that identification of the deponent by an Advocate is a serious matter and since in the present case the Advocate has identified the imposter respondent wife, therefore, it was all the more necessary for the appellant husband to have produced such an Advocate to dispel the said suspicious circumstance. The counsel further argued that the appellant husband has mentioned his false address at the time of presentation of the divorce petition i.e. 1/4 Kalkaji, New Delhi although at that point of time he was residing at G-9A, Kalkaji, New Delhi along with the respondent wife. Counsel for the respondent wife placed reliance on two service reports dated 29.4.2009 and 4.5.2009 to support his argument that the appellant husband was not residing at 1/4 Kalkaji, New Delhi for the past several years. The counsel further submitted that the appellant husband supplied his wrong proof of address along with divorce petition i.e. the copy of the voter identity card, which was of the year 1995 and not for the relevant period to show his correct address. The counsel further submitted that the appellant husband has also played mischief by filing a photocopy of the bank passbook of the respondent wife which carried the address of the respondent wife of the period prior to her marriage. The counsel further submitted that the letter dated 5th March, 2008 sent by the CBSE and the attendance certificate issued by the said Board clearly establishes the fact that the respondent wife could not have been in the Court on the relevant date as she was on CBSE duty.

21. Coming to the second limb of the argument advanced by the counsel for the appellant husband relating to inadmissibility of the two FSL reports as were submitted by the Senior Scientific Officer (documents), this Court on perusal of the record does not find that at the time of calling for the said FSL reports the Court had referred to the said provision i.e. Section 293 of the Code of Criminal Procedure, 1973 and it is only in the impugned order that the Court while discussing about the admissibility of such FSL reports in the evidence referred to Section 293 and 294 of the Code of Criminal Procedure, 1973. There is no dispute that the instant case is a pure civil dispute between the parties and there could not have been any occasion for the Court to refer to Section 293 and 294 of the Code of Criminal Procedure, 1973. However, at the same time, the said report submitted by the FSL could still be taken into consideration by the learned Trial Court in terms of Section 45 of the Indian Evidence Act, 1872 read with Order 26 Rule 10A of the Code of Civil Procedure,1908. It is a totally flawed argument that such report cannot be taken into consideration by the Court unless the expert enters the witness box to prove his report. On the contrary, if there exists enough corroborative evidence on record, the Courts can always take the help of such expert opinion to form a final view with regard to any forgery in the signatures or in the handwriting of any of the parties before the Court. In criminal trials, these reports may not form the sole basis for holding any person guilty of offence, but so far the civil trials are concerned, there the Court proceeds on the hypothesis of preponderance of probabilities and such a view can be formed by the Court taking into consideration the opinion of the expert as corroborative to the other material available on record. The opinion of the handwriting expert is not conclusive but is in the nature of opinion and it is always safe to rely upon report of an expert, if there is some other reliable evidence on record sufficient enough for the Court to form a particular view. The Apex Court in the case of Murari Lal vs State of Madhya Pradesh reported in (1980) 1 SCC 704 although dealing in a criminal matter, took a view that even the uncorroborated testimony of an handwriting expert may be accepted in cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt. The relevant para of the judgment is reproduced as under:-

We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.

Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of the handwriting expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when an expert's evidence is not there, the court has power to compare the writings and decide the matter (See Murari Lal v. State of M.P.)

23. It would be thus seen that it is for the Court to decide in the facts of each case whether to accept the evidence of the handwriting expert even if the same has not been proved on record by summoning the expert witness as there is no straight jacket formula or rule of thumb in this regard. Be that as it may, this Court does not find any fault on the part of the learned Trial Court in placing reliance on the two FSL reports submitted by the Senior Scientific Officer to form its view that the appellant husband had not only forged signatures of the respondent wife on the joint petitions but had committed a serious fraud upon the Court by producing some imposter in place of his actual wife i.e. respondent herein. There is enough material available on record other than FSL reports which clearly points out such forgery and fraud committed by the appellant husband in obtaining the said judgment and decree dated 22.4.2008. There is no denial of the fact that the appellant husband had moved two separate applications, one for adducing independent handwriting expert and the other raising objections to the said FSL reports and for examination of the author of the two FSL reports. On perusal of the impugned judgment, it is manifest therefrom that the appellant husband did not press the said application for producing his own handwriting expert and, therefore any contention being raised by the counsel for the appellant husband contrary to the said record merits straightway rejection. The other objection raised by the counsel for the appellant husband with regard to the filing of objections against the said reports and for cross-examination of the author of the FSL reports, the answer thereto has already been given in the above discussion. For the sake of repetition, it is reiterated that in the given facts of each case the Courts can either enter into the realm of evidence to decide the objections to the report of the expert witness by calling the expert witness in the witness box or take the help of an expert opinion in terms of Section 45, 47 and 73 of the Indian Evidence Act, 1872 read with Order 26 Rule 10A of the CPC,1908 so as to give a finding on the handwriting or on the signatures taking note of the other corroborated material available on record. Here it is pertinent to mention that the expertise of the Senior Scientific Officer who is from a Government laboratory, CFSL, known for its independence and impartiality, cannot be easily doubted in the absence of any mature suggestion otherwise and therefore also no fault can be found with the reasoning of the learned trial court giving due weightage to the said two FSL reports.