Balamurugan vs Valarmathi

T. Mathivanan, J.—This Memorandum of Civil Revision has been directed against the fair and decretal Order dated 18.4.2012 and made in I.A. No. 633 of 2010 in O.S. No. 148 of 2010 on the file of the learned Subordinate Judge, Mettur.

The Revision Petitioner herein is the Defendant; whereas the Respondent is the Plaintiff in the Suit in O.S. No. 148 of 2010.

It appears from the records that the Respondent, being the Plaintiff, has filed the above Suit as against the Revision Petitioner for recovery of a sum of Rs. 3,37.775 along with the interest at the rate of 12% p.a. on a Demand Promissory Note said to have been executed by the Revision Petitioner in favour of the Respondent Plaintiff on 12.9.2009. This Suit was contested by the Revision Petitioner by filing his Written Statement. Even prior to his filing of Written Statement the Revision Petitioner had taken out an Application in I.A. No. 633 of 2010 under Section 45 of the Indian Evidence Act, to send the disputed Pro-Note to get the Expert''s opinion with regard to the signature and thumb impression found place in the said Pro-Note after comparing the same with the admitted signature and the thumb impression. This Petition was contested by the Respondent/Plaintiff.

After hearing both sides, the learned Subordinate Judge, Mettur had proceeded to dismiss that Application on 18.4.2012 on the ground that the Revision Petitioner/Defendant had not produced his admitted signature and thumb impression, for the effective comparison with the disputed signatures. Challenging the correctness of the Order dated 18.4.2012. present Civil Revision is preferred by the Petitioner/Defendant.

Admittedly, the Revision Petitioner/Defendant has failed to produce his admitted signature and thumb impression for comparison with the disputed signature and thumb impression found place in the Promissory Note in question. The above Suit in O.S. No. 148 of 2010 is pending trial and the trial proceedings are yet to be commenced.

The Respondent/Plaintiff in his Counter Statement has stated that already he had collected certain documents containing the signature of the Revision Petitioner/Defendant and therefore, he had given an undertaking to produce the same before the Trial Court for comparison. The learned Trial Judge has observed in his Order saying that the said documents are the contemporaneous documents of the disputed Promissory Note.

In this connection this Court would like to have reference of the provisions of Section 73 of the Indian Evidence Act, 1872 Section 73 of the Evidence Act contemplates the comparison of signature, writing or seal with others admitted or proved Section 73, enacts as under:

"Section 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 teen 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 provisions of Section 73 itself empowers the Court to compare admitted and disputed writings, signatures, thumb impression for the purpose of forming its own opinion. The rule of caution is not to base a conclusion entirely upon the Court''s own comparison, because the function of the Court is distinct from and above the rule of an Expert Witness giving evidence on handwriting which is tested by cross-examination.

As observed in the decision reported in Latafat Hussain v. Onkar Mal, AIR 1935 Oudh 41, the following are the ordinary methods of proving handwriting (1) by calling as a Witness a person, who wrote the document or saw it written, or who is qualified to express an opinion as to the handwriting by virtue of Section 47 of the Evidence Act, (2) by a comparison of handwriting as provided in Section 73 of the Evidence Act; and (3) by the admission of the person against whom the document is tendered. In applying the provisions of Section 73 of the Evidence Act, it is important not to lose sight of its exact terms. It does not sanction the comparison of any two documents but requires that the writing with which the comparison is to be made, or the standard writing as it may be called, shall be admitted or proved to have been written by the person to whom it is attributed, and next the writing to be compared with the standard, or in other words, the disputed writing must purport to have been written by the same person, that is to say, the writing itself must state or indicate that it was written by that person.

In State of Gujarat v. Vinaya Chandra, 1967 Cr.LJ 668 AIR 1967 SC 778, the Hon''ble Apex Court has held that it is not essential that the Handwriting Expert must be examined in a case to prove or disprove the disputed documents Where oral evidence clearly established that a person executed a certain document, it would be completely unnecessary for the Court to embark upon an investigation into the signatures by comparison.

In Veeraraghava Aiyangar v. Souri Aiyangar, AIR 1919 Mad 951 : 1918 (35) MLJ 608. this Court has held that any document alleged by a party to be in the handwriting of a particular person may, for the purpose of proof, be compared with another writing or signature admitted to or proved to the satisfaction of the Court to have been made or written by that person and that the word ''purports'' does not limit the scope to such documents only as are signed or contain some intrinsic statements of the identity of writer.

The Second Paragraph of Section 73, enables the Court to direct any person present in the Court to give subsequent writings for the purpose of enabling the Court to compare such writings with writings alleged to have been written by such person. The clear implication of the words ''for the purpose of enabling the Court to compare'' is that there is some proceeding before the Court, in which or as a consequence of which it might be necessary for the Court to compare such writings.

On coming to the instant case on hand, at the time of filing the Petition under Section 45 of the Indian Evidence Act, the Revision Petitioner had not chosen to produce any documents containing his admitted signature for the purpose of comparison with the disputed signature find a place in the Promissory Note which is in question in the present Suit.

Mr. Valliappan, learned Counsel appearing for the Respondent has also produced the following decision to support his case

(i) J. Krishna v. Maliram Agarwal and others, AIR 2013 AP 107:

In this case, a learned Single Judge of Andhra Pradesh High Court has held that the Judicial Officers are provided with subject of introduction to comparison of signatures and handwriting during their basic induction course, thus it cannot be said that Lower Court which is Court presided over by Senior Subordinate Judicial Officer cannot undertake work of comparison of signatures in exercise of power under Section 73, particularly when that Court does not entertain any doubt on this aspect of matter - Judicial may be discretion exercised by Lower Court in refusing to send disputed documents and admitted document to expert for comparison of signatures, proper.

(ii) In an another case in Nagappa Chendappa Kolli v. Nannibu and others, AIR 1960 Mysore 220 (V 47 C 74):

In this case, the Mysore High Court has held that by virtue of the provisions of Section 73, the Court has power to compare the disputed signature with the admittedly genuine signature to come to a conclusion. But the rule of prudence is that comparison of signatures by Courts as a mode of ascertaining the truth should be used with great care and caution.

(iii) The Hon''ble Apex Court in Ajit Savant Majagavi v. State of Karnataka, AIR 1997 SC 3255, has held that Section 73, does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a Handwriting. Expert under Section 45, or by anyone familiar with the handwriting of the person concerned as provided by Section 47, or by the Court itself. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73.

On coming to the instant case on hand, this Court finds that the Affidavit filed by the Revision Petitioner in support of his Petition is very much important. In Paragraph 4, he has stated that he has been running Fertiliser Industry and known to everybody and in order to cheat and extract money, the Respondent Plaintiff had cooked up the Suit Pro-Note with the connivance of somebody. Excepting this, nothing has been stated for the purpose of comparison of the disputed signature.

This Court has carefully considered the submissions made on behalf of both sides and perused the averments of grounds of Revision along with the impugned Order dated 18.4.2012.

Having regard to the related facts and circumstances, this Court is of the considered view that the Revision Petitioner/Defendant has not come forward with this Petition with the candid reason for being sent the disputed Pro-Note for comparison with the admitted signatures.

As it is observed by the Trial Court, the Revision Petitioner has also failed to produce any document containing his admitted signature or thumb impression. Keeping in view of the above fact, this Court finds that the Revision Petition deserves to be dismissed.

Accordingly, the Revision Petition is dismissed and the impugned order, dated 18.4.2012 made in I.A. No.633 of 2010 in O.S. No.148 of 2010 on the file of the learned Subordinate Judge, Mettur, is confirmed. The Trial Court is directed to dispose the Suit in O.S. No.148 of 2010 as expeditiously as possible preferably within a period of four months from the date of receipt of a copy of this Order. No costs. Consequently, connected Miscellaneous Petition is closed.