Kanan vs Nanu

Padmanabhan, J.—The simple question for consideration in this second appeal filed by the defendant is whether the courts below went wrong in rejecting the plea of discharge supported by Ext.B1 receipt ignoring the evidence of DWs.1 and 2 and the opinions of two hand-writing experts.

Execution of Ext.A1 pronote for Rs. 6,000/- and receipt of consideration are admitted. Plea is that Rs. 5,500/- was repaid through his son DW2 and Ext.B1 receipt was obtained. At the instance of the appellant Ext.B1 was originally compared by an expert with the admitted writings of the respondent. They were found to be of the same person. Then another expert examined at the instance of the respondent. He also gave the same opinion. The experts were not examined. DWs.1 and 2 were found unreliable. There were some inherent improbabilities in their evidence. These grounds prompted the trial court and appellate court to reject the plea of discharge which was denied by the respondent.

Burden of proof is undoubtedly on the appellant. Whether he successfully discharged the burden by the evidence on record is a question of fact on which both the courts adjudged against him. Barring Ext.B1 and the opinion of experts, we are having only the testimonies of the appellant as DW.1 and his son as DW2. The present case is that the amount was sent through DW2. In the written statement DW2 or any body else was not specified as the bearer of the amount. Ext.B1 is dated 27.12.1976. The definite case of the appellant as DW1 was that he sold an item of his landed property for Rs. 7,000/- specifically for discharging this debt and Rs. 5,500/- received as advance was sent on that date itself and Ext.B1 also was received on that day. Balance Rs. 1,500/- is claimed to have been received a few days thereafter when the sale deed was executed. If so it is not known why the balance amount was also not paid. A copy of the sale deed claimed to have been executed by the appellant was produced by the respondent as Ext.A2. It is dated 19.11.1975 while Ext.B1 is dated 27.12.1976. If DW1 is believed he received Rs. 5,500/- some time prior to 19.11.1975 and sent it to the respondent and received Ext.B1 on that day itself. But Ext.B1 is more than one year after the sale deed itself. So also the total consideration under it is only Rs. 2,700/-. Though it was argued that Ext.A2 is not the document and there is some other sale deed, none was produced. Appellant had ho case that he raised Rs. 5,500/- in any other manner.

As DW1 the appellant said that Rs. 5,500/- received from his vendee Narayani was entrusted to DVV2 then and there for payment to the respondent in the presence of Kumaran, husband of Narayani. He would have been the best witness, but he was not examined. But DW2 disagreed with DW1 and said that nobody else was present when DW1 gave the amount to him. DW2 said that on payment of the amount he demanded the pronote back. But DW1 has no case that he directed so. Demanding back the pronote is not probable so long as the liability was not fully discharged. While DW1 said that he was not able to make the payment direct because he was ill, DW2 denied the illness. These and other circumstances cutting at the root of the plea of discharge weighed with the courts below in rejecting the plea of discharge. Sitting in second appeal I fail to understand how there could be any substantial question of law on which I could interfere.

Then the only question is the effect of the two expert opinions on the plea of discharge. Both the courts below were not right in rejecting the opinions for the reason that the experts were not examined. The view of the newly introduced Rule 10A to Order 26 CPC read along with Rule 10, the report shall be evidence in the suit and shall form part of the records even without examination of the experts. Examination of the experts is not a condition precedent to admissibility of the report even though the court or with its permission any of the parties may examine the experts Deonandan Rai v. Mahant Pai 1983 All. L.J. 618. That does not mean that with or without the examination of the expert the court is bound to accept the opinion as substantive evidence and act on it.

A writing maybe proved to be in the handwriting of a particular individual by the testimony of an expert competent to the comparison of handwritings on a scientific basis (Section 45 Evidence Act) or by the evidence of a person familiar with the handwriting of that individual (Section 47) or by comparison by court (Section 73). Both under Sections 45 and 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. Final conclusion must be that of the court. In either case the court must satisfy itself by such means as are open that the opinion could be acted upon. 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 of the same individual. One such method is to apply its own observation for a comparison. That does not mean that the court must play the role of an expert. The court must accept the fact as proved only when it has satisfied itself on its own observations that it is safe to accept the opinion whether of the expert or other witness. The Court is only verifying the premises of the expert in one case and appraise the value of the opinion in the other (Fakharuddin v. State of MP. AIR 1967 SC 1326 and Divakaran v. State of Kerala 1981 KLT S.N. 24 Case No. 42).

While dealing with the acceptability of opinion evidence of an expert u/s 45 of the Evidence Act for entering conviction in a criminal case the Supreme Court took the Extreme view in Magan Bihari Lal v. State of Punjab MR 1977 SC 1091, that this type of evidence is very weak and infirm and cannot by itself for the basis of conviction. It was also held that expert opinion must always be received with great caution and the caution should be greater when the opinion is that of a handwriting expert. That may be because as held in Murali Lal v. State of M.P. AIR 1980 SC 531, while the science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher.

But there is no rule of law, nor any rule of caution or 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 regard to the imperfect nature of the science and the consequent risk of mistakes, the approach should be one of caution and prudence. Reasons for the opinion must be carefully probed and examined. All other relevant and available item of evidence and circumstances must be considered alongwith the opinion. In appropriate cases corroboration also must be insisted. There cannot be any inflexible rule in the matter. In a given case where reasons for the opinion are cogent and convincing and there is no reliable evidence throwing a doubt, even the uncorroborated testimony of a handwriting expert by itself could be acted upon. It is only a question of testimonial weight. Though in some or many cases it would be hazardous to act on the testimony of the expert alone, there is no rule of law or rule of caution or justification for condemning the opinion evidence of a handwriting expert and equating it with that of an accomplice in order to insist upon corroboration always. The hazard is not because experts are treated as unreliable witnesses. The quality of credibility or incredibility is one which an expert shares with all other witnesses. The hazard is only because all human judgments are fallible and an expert may also go wrong because of some defect of observation, some error of premises or honest mistakes of conclusions. An expert only deposes and not decides. Decision is that of the court. His duty is only to furnish the court with sufficient scientific criteria for testing the accuracy of his conclusions so as to enable the court to form its own independent judgment.

u/s 3 of the Evidence Act a fact is said to be proved when, after considering the matters before it, the court either believes the fact to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. There is also the presumption u/s 114 of the Evidence Act regarding the existence of facts likely to have happened, regard being had to the common cause of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. The stigma attached to an accomplice under Illustration (b) to 114 evidence Act is not there for an expert. The expert opinion can only aid the court to have a comparison u/s 73 to form opinion. When there is no expert opinion the court will have to seek guidance from some authoritative texts and its own experience and knowledge in resorting to Section 73.

While dealing with the opinion evidence of an expert the court must also have due regard to Section 46 of the Evidence Act which says that facts, no otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. Facts not only supporting the opinion but also inconsistent with it are relevant, the former to give strength to the opinion and the latter to discredit it. In this case both the courts below considered ever so many such relevant facts which are inconsistent with the correctness of the opinion given by the two experts. In such a situation when the two courts below refused to act on the opinion, I do not think that this Court will be justified in interfering especially when there is no independent corroboration from acceptable source.

The second appeal is dismissed with costs.