Bomma Naicken vs Chinna Gounder and Another

K.P. Sivasubramaniam, J.—This Second Appeal arises out of the judgment of the learned District Judge, Erode, in A.S. No. 61 of 1983,

dated 21-9-1983, reversing the judgment of the learned District Munsif, Bhavani, in O.S. No. 559 of 1981 dated 15-2-1983.

The defendant in the suit is the appellant in the above Second Appeal. The suit is on a promissory note. The plaintiff claimed that on 21-8-1978

at Kavunthapadi the defendant borrowed a sum of Rs. 10,000/- in cash from plaintiffs 1 and 2 and had executed a promissory note in favour of

the plaintiffs promissing to pay the said sum with interest at 12% per annum on demand and that the defendant had failed to pay the suit amount in

spite of personal demands and through registered lawyer''s notice. The plaintiff further pleaded that the defendant being an agriculturist, interest was

calculated at 9% per annum and the defendant owns land and raising sugar cane crops and commercial crops and his annual income for the year

ending 1979 was Rs. 10,000/- and that therefore, the defendant was not entitled to the benefits of Tamil Nadu Act 13 of 1980. The said claims

were disputed by the defendant. According to the defendant, the plaintiffs were involved in a murder case and that on 19-2-1979 at 3.00 p.m. the

plaintiffs had come to the land of the defendant and threatened the defendant, his brother Thimma Naicken and his wife Errammal that they should

not give evidence in the murder case against the plaintiffs. This incident was duly complained to the Police and that therefore, both the parties were

on inimical terms and that the plaintiffs have fradulently prepared the suit promissory note and had filed the suit. Even otherwise, the defendant was

entitled to the benefits of Tamil Nadu Debt Reliefs Act 13 of 1980 and therefore, no amounts were payable to the plaintiffs. On the basis of the

said pleadings and evidence both oral and documentary, the learned trial Judge came to the conclusion that the plaintiffs have not properly

established the truth of the suit promissory note and the execution of the same. With the result the suit was dismissed. However, the said judgment

was reversed by the learned appellate Judge and hence the above Second Appeal.

I do not propose to consider any of the issues raised by both parties on merits of their respective pleadings and evidence in view of my

conclusion that the appeal has to be remanded back to the lower appellate Court for considering a particular issue.

In this case, inasmuch as the execution of promissory note itself has been disputed, the thumb impression as available in the suit promissory note,

is very much under dispute and requires to be either substantiated or disproved by the parties. As far as the trial Court is concerned, the Court

took into account the circumstances that the plaintiffs had filed a petition for sending the document along with the admitted thumb impression to the

expert. However, the plaintiffs did not take further steps to pursue the petition filed by them in the said context. Inasmuch as the thumb impression

was disputed the initial burden of proving the thumb impression was very much on the plaintiffs. Therefore, and also in consideration of other

circumstances the learned trial Judge came to the conclusion that the suit promissory note was not properly proved. However, the learned

appellate Judge on a mere comparison of the disputed thumb impression along with the thumb impression of the defendant in the written statement

had come to the conclusion that both were the same and that there was absolutely no difference or variation between the two thumb impressions.

The questions is as to whether the approach of the learned appellate Judge can be sustained or not. Mr. M.M. Sundaresh, learned Counsel for the

appellate has referred to several judgments in support of his submission that such a comparison by the Court in the absence of the opinion of the

expert cannot be safely relied upon.

Reliance is placed on the judgment of the Supreme Court reported in O. Bharatan Vs. K. Sudhakaran and another, . It was a case arising under

Representation of the Peoples Act, in which the Supreme Court has held that in the judgment under appeal the learned Judge ought not to have

taken the hazardous task of adjudicating upon the genuineness and authenticity of the signatures in question even without the assistance of a skilled

or trained person whose services could have been easily availed of. The Supreme Court relied on an earlier judgment reported in The State (Delhi

Administration) Vs. Pali Ram, . In the said judgment the Supreme Court has held that there was no legal bar to the Judge using his own eyes to

compare the disputed writing with the admitted writing even without the aid of the evidence of any hand writing expert, but the Judge should, as a

matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the case

and that it was therefore, not advisable for a Judge to take upon himself the task of comparing the admitted writing with the disputed one.

Reference was also made to another judgment of the Supreme Court reported in AIR 1967 SC 1326 (Fakhruddin v. State of M.P.). The

Supreme Court after analysing Sections 45, 47 and 73 of the Evidence Act, came to the following conclusion (paras 10 and 11):

Evidence of the identity of handwriting receives treatment in three sections of the Indian Evidence Act. They are Sections 45, 47 and 73.

Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if

it is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert

(Section 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence

which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a

particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the

comparison of handwritings on a scientific basis. A third method (Section 73) is comparison by the Court with a writing made in the presence of

the Court or Emitted or proved to be the writing of the person.

(11) Both u/s 45 and Section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity

resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be

acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the

disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion

in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same

characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and

although relevant to start with becomes probative. Where an expert''s opinion is given, the Court must see for itself and with the assistance of the

expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to any that the Court must

play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe

to accept the opinion whether of the expert or other witness.

Therefore, according to the Supreme Court, comparison of two disputed signatures would depend upon the analysis of the characteristics in the

admitted or proved writing and that the opinion of the deponent whether by expert or otherwise is subject to scrutiny by the Court. Where an

expert''s opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be

held that the two writings are by the same person.

In contrast, Mr. A.K. Kumaraswamy learned Counsel for the respondents, relies on a judgment of a Division Bench of this Court reported in

(1993) I MLW 186 (Muniswamy R. v. P. Pandiarajan) in which the Division Bench has held that it was open to the Court to compare the

disputed signature in a document without calling for an expert witness.

The outcome of the above judgments would be that even though there is no bar for the Court to compare the admitted signatures with the

disputed signatures to come to its conclusion it would be prudent to require assistance of an expert witness. In fact, all the judgments cited by both

the parties related to signatures and not thumb impression. It cannot be disputed that thumb impression would stand on a different footing, when

compared to signatures and the variations in thumb impression cannot be easily Judged by naked eyes. That being so, the caution emphasised in

the judgment of the Supreme Court reported in The State (Delhi Administration) Vs. Pali Ram, and as followed in the subsequent judgment

reported in O. Bharatan Vs. K. Sudhakaran and another, , has to be borne in mind in the present case more so because the dispute is with

reference to a thumb impression. Once it is concluded that the disputed signature is that of the defendant all the other disputes raised by the

defendant in the matter of execution of the promissory note would be naturally thrown out and the plaintiffs would be entitled to a decree as prayed

for. In a case of this type, the lower appellate Court ought not to have resorted to a mere comparison without seeking the assistance of an expert.

In the result, the appeal has to be remanded back to the lower appellate Court for sending the documents for the opinion of the expert and

thereupon take evidence if necessary only in the context of the opinion of the expert and record his findings thereon. The lower appellate Court is

directed to send the document for the opinion of the expert at the expenses of the plaintiffs/respondents and to proceed further.

In the result, the Second Appeal is allowed and remanded back to the lower appellate Court in the above mentioned terms. No costs. The

Appellate Court is directed to dispose the Appeal within 3 months after the receipt of the records in this Appeal.