Sec.45 of Evidence Act - Evidentiary Value of Expert opinion = In the absence of contemporary admitted signatures and in the absence of Qualified expert , the opinion of the expert can not be considered as a conclusive evidence ; a worker in the shop of plaintiff cannot be considered as interested witness = Sallepalli Narasimha Reddy, S/o.Pulla REddy ... Appellant/Respondent/Defendant Yerram Pedda Subba Reddy, S/o.Chinna Nagi Reddy... Respondent/Appellant/Plaintiff =published in http://judis.nic.in/judis_andhra/chejudis.aspx
Sec.45 of Evidence Act - Evidentiary Value of Expert opinion = In the absence of contemporary admitted signatures and in the absence of Qualified expert , the opinion of the expert can not be considered as a conclusive evidence ; a worker in the shop of plaintiff cannot be considered as interested witness =
Interested witness - A worker in shop is not interested witness on that reason:-
P.W.1 being a party to the proceedings is entitled to depose evidence and
therefore he cannot be treated as interested witness. Simply because P.W.2 is
working in the shop of P.W.1, that itself is not sufficient ground to treat him
as interested witness. P.W.2 will not gain or lose anything if the suit is
decreed or dismissed. Having regard to the facts and circumstances of the case,
I am unable to countenance the argument of learned counsel for the
appellant/defendant that P.W.2 is an interested witness.
Evidentiary value of the Expert Opinion :-
The first appellate court has rightly applied the principles
enunciated in Brij Basi case (5 supra) and Shashi Kumar Banerjee case (6 supra)
and held that opinion of expert cannot outweigh the direct evidence, if the
direct evidence available on record is convincing. Therefore, I am unable to
agree with the findings recorded by the trial court as the same are not based on
sound principles of law.
The evidence of the expert being opinion evidence, cannot falsify the
convincing direct evidence4.
The opinion of the experts cannot outweigh the
direct evidence5.
Before acting on expert evidence, it is usual to see if it is
corroborated either by oral evidence or by circumstantial evidence6.
The opinion of expert is not infallible7.
The evidence given by an expert of handwriting can never a conclusive proof8.
The handwriting expert must compare the disputed signatures on promissory note with the admitted signature and not the signatures on the pleading and vakalat9.
The suit promissory note is dated 30.3.1997.
The signatures of the
defendant were taken in open court on 07.11.2001 to send the same for comparison
with his disputed signature on Ex.A1 promissory note dated 30.3.1997.
This
factual aspect clearly manifest that the contemporary signatures of the
defendant were not sent to the expert for comparison.
It is not in dispute that
the signatures of the defendant on the bank passbook or passport or sale deed
were not sent to the expert for comparison.
The court shall not lose sight of
the relevant facts, in order to appreciate the rival contentions.
Prior to
07.11.2001, the defendant was very much aware that he has taken a specific plea
in the written statement that Ex.A1 does not bear his signature.
Therefore, the
court has to take into consideration the tendency of a human being in getting
over the situation adverse to him.
In such circumstances, the possibility of
changing pattern and style of the signature by the defendant, while putting his
signature in open court, to distinguish his usual signature cannot be ruled out
completely, so as to substantiate his stand in the written statement.
Even as per the testimony of C.W.1, the questioned signatures were signed
with a ball-point pen whereas the admitted signatures S2 to S4 were signed with
a sketch pen.
There is every possibility for variation if the same person puts
his signature with a sketch pen and a ball-point pen.
C.W.1 did not mention the
age of the questioned signatures on Ex.A1.
She further admitted that she has
not mentioned the design of the letters in her reasons.
In the cross-
examination, she has categorically deposed that she obtained Post Graduation in
Zoology in the year 1978.
She further deposed that she is not having diploma in
examination of questioned documents.
As per the expert opinion the disputes signatures are traced forgery.
The person who traced the signature of another
person must be in possession of the signatures of that person.
The defendant
has not placed any material much less cogent and convincing material, to establish that the plaintiff is having signatures of the defendant with him, which enabled him to trace his signature on Ex.A1 promissory note.
Therefore
the opinion of the expert that the disputes signatures are traced forgery is not
supported by any corroborative evidence.
HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.40 of 2005
22-11-2013
Sallepalli Narasimha Reddy, S/o.Pulla REddy ... Appellant/Respondent/Defendant
Yerram Pedda Subba Reddy, S/o.Chinna Nagi Reddy...
Respondent/Appellant/Plaintiff
Counsel for the Appellant: Sri C.Damodar Reddy
Counsel for the respondent: Sri P. Veera Reddy
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. (1996) 2 SCC 428
2. (2000) 8 SCC 491
3. (2011) 4 SCC 726
4. 2003(1) ALD 260
5. AIR 1982 All 323
6. AIR 1964 SC 529
7. AIR 1921 Lah 126
8. AIR 1963 SC 1728(1)
9. AIR 2000 Mad 239
THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.40 of 2005
November 22, 2013
JUDGMENT:
This appeal is preferred by the defendant challenging the decree and
judgment dated 11.10.2004 in A.S.No.5 of 2003 on the file of Senior Civil Judge
Court, Allagadda, reversing the decree and judgment dated 10.4.2003 in
O.S.No.174 of 1999 on the file of Junior Civil Judge Court, Allagadda. The
parties are hereinafter referred to as they arrayed in the suit.
The case of the plaintiff is that the defendant borrowed an amount of
Rs.50,000/- from him on 30.3.1997 and executed a promissory note agreeing to
repay the same with interest at 24% per annum. In spite of repeated demands,
the defendant did not choose to repay the amount. On 21.4.1998, the plaintiff
got issued notice directing the defendant to repay the amount. The defendant
issued a reply notice stating that the promissory note is a forged one. Hence,
the suit.
The defendant filed written statement inter alia contending that he did
not borrow any amount from the plaintiff and the suit promissory note might have
been forged and fabricated by the plaintiff keeping in mind the land dispute
between them. The defendant also issued reply to the legal notice got issued by
the plaintiff.
In the trial court, on behalf of the plaintiff, P.Ws.1 to 4 were examined
and Exs.A1 to A3 were marked. On behalf of the defendant, D.W.1 and C.W.1 were
examined and Exs.X1 to X4 were marked.
On the analysis of oral, documentary evidence and other material available
on record, the trial court arrived at a conclusion that the suit promissory note
is forged one and dismissed the suit.
Being aggrieved by the decree and
judgment of the trial court, the unsuccessful plaintiff filed A.S. No.5 of 2003
on the file of Senior Civil Judge Court, Allagadda. The first appellate court,
after reappraising the oral and documentary evidence, arrived at a conclusion
that the suit promissory note is a valid one and the plaintiff is entitled to
recover the suit amount from the defendant. The defendant, being aggrieved by
the decree and judgment of the first appellate court, preferred the present
appeal.
The substantial questions that are pleaded in this appeal are:
(1) Whether the lower appellate court is justified in reversing the judgment of
the trial court by placing reliance on the evidence of P.Ws.1 and 2 who are
interested witnesses?
(2) Whether the lower appellate court is justified in discarding the Ex.X1 along
with Exs.X2 to X4 supported by the evidence of C.W.1?
(3) Whether the lower appellate court is justified in applying the principle
laid down in the judgments reported in AIR 1982 Allahabad 323 and AIR 1964 SC
529 to the facts of the present case?
(4) Whether the lower appellate court properly framed the points for
determination and answered the same properly in reversing the judgment of the
trial court?
To substantiate his case, the plaintiff examined himself as P.W.1 and got
marked Exs.A1 to A3. P.Ws.2 and 3 are the attestors and P.W.4 is the scribe of
Ex.A1 promissory note. To dislodge the case of the plaintiff, defendant
examined himself as D.W.1. C.W.1 is the expert through whom Exs.X1 to X4 were
marked.
Heard the learned counsel for the appellant/defendant and learned counsel
for the respondent/plaintiff.
Point No.4:
A perusal of the record reveals that the first appellate court has framed
the following two points for determination.
(i) Whether the evidence of the expert is conclusive and falsifies the direct
evidence of the attesting witnesses?
(ii) Whether the plaintiff is entitled for decree for recovery of suit amount?
It is needless to say that the appeal is continuation of the suit. A
legal obligation is cast on the part of the first appellate court to answer all
the issues framed by the trial court or should frame the points of law and facts
covering the issues framed by trial court and answer them properly. The trial
court had framed only one issue i.e., whether the suit promissory note is forged
document. The second point framed by the first appellate court covers the issue
framed by the trial court. In point No.1, the first appellate court elaborately
considered the oral, documentary evidence and other material available on
record, before arriving at such conclusion. The manner in which the first
appellate court framed the points for determination would not cause any
prejudice to the rights of the defendant. The first appellate court has
addressed both the points by following due procedure.
Point Nos.1, 2 and 3:
These three points are interrelated with each other and hence I am
inclined to address these points simultaneously in order to avoid repetition and
confusion.
In this appeal, the predominant contention of the learned counsel for the
appellant/defendant is that the first appellate court decreed the suit basing on
the testimony of interested witnesses while discarding the expert opinion. To
substantiate his contention, he relied upon the decisions in State (through
CBI/New Delhi) v S.J.Choudhary1,
the principle enunciated is that the opinion of
the typewriter expert is admissible under Section 45 of the Evidence Act;
Praveen Kumar v Suresh Chand2,
the principle enunciated is that the court can
place reliance on the opinion of the expert in respect of fake signature made on
process; and Tatipamula Naga Raju v Pattem Padmavathi3,
the principle enunciated
is that the court can place reliance on the opinion of the handwriting expert
confirming interpolations in the promissory note.
The contention of the learned counsel for the respondent/plaintiff is that
the decree and judgment of the trial court is not legally sustainable as its
findings are based on expert opinion which is a weak piece of evidence.
The
following principles can be deduced from the decisions cited by the learned
counsel for the plaintiff.
The evidence of the expert being opinion evidence, cannot falsify the
convincing direct evidence4.
The opinion of the experts cannot outweigh the
direct evidence5.
Before acting on expert evidence, it is usual to see if it is
corroborated either by oral evidence or by circumstantial evidence6.
The opinion of expert is not infallible7.
The evidence given by an expert of handwriting can never a conclusive proof8.
The handwriting expert must compare the disputed signatures on promissory note with the admitted signature and not the signatures on the pleading and vakalat9.
Let me consider the facts of the case on hand, in the light of the
principles enunciated in the cases cited supra. In the instant case, the
plaintiff has to establish that Ex.A1 promissory note is executed by the
defendant.
Once the plaintiff establishes the execution of promissory note the
onus shifts on the defendant to establish the suit promissory note is forged
one.
As per the testimony of P.W.1, the defendant borrowed an amount of
Rs.50,000/- from him on 30.3.1997 and executed Ex.A1 promissory note. As per
the testimony of D.W.1, he neither borrowed any amount from the plaintiff nor
executed Ex.A1 promissory note and it is a forged one. As seen from the
testimony of P.Ws.2 and 3, they attested the promissory note in the presence of
the plaintiff and defendant. As per the testimony of P.W.4, he scribed Ex.A1
promissory note and P.Ws.2 and 3 are the attestors.
As per the averments in the written statement, the plaintiff fabricated
Ex.A1 promissory note due to land disputes. In the cross-examination, D.W.1
deposed that he has no disputes with the plaintiff. He further deposed he
mentioned in the written statement that the suit promissory note might have been
forged keeping in mind the disputes between him and the plaintiff with regard to
purchasing of pesticides. The defendant has taken one stand in the written
statement and deposed different version with regard to alleged motive for
fabrication of Ex.A1 promissory note by the plaintiff. As per the testimony of
D.W.1, P.Ws.2 to 4 belong to Congress party and he belongs to Telugu Desam
Party. In the cross-examination, no suggestion was put to P.Ws.2 and 4 that
they belong to Congress party. In the cross-examination, P.W.3 denied the
suggestion that he belongs to Congress party. The version putforth by the
defendant, so far as fabrication of Ex.A1 promissory note, is not specifically
elicited from the testimony of P.Ws.1 to 4. In the cross-examination of P.Ws.1
to 4, nothing is elicited to shake their testimony regarding receiving of
consideration and execution of Ex.A1 promissory note by the defendant on
30.3.1997. In the cross-examination P.W.2 categorically deposed that he has
been working as a clerk in the shop of P.W.1. Even if the testimony of P.W.2 is
discarded in toto, still the oral testimony of P.Ws.3 and 4 is fully supporting
the version of the plaintiff. The testimony of D.W.1 clearly reveals that he
has been purchasing pesticides and fertilizers from the plaintiff's shop. It
clearly indicates acquaintance between them prior to Ex.A1 transaction. By
examining P.Ws.2 to 4 and marking Ex.A1, the plaintiff clearly established that
the defendant received an amount of Rs.50,000/- and executed Ex.A1 promissory
note.
P.W.1 being a party to the proceedings is entitled to depose evidence and
therefore he cannot be treated as interested witness. Simply because P.W.2 is
working in the shop of P.W.1, that itself is not sufficient ground to treat him
as interested witness. P.W.2 will not gain or lose anything if the suit is
decreed or dismissed. Having regard to the facts and circumstances of the case,
I am unable to countenance the argument of learned counsel for the
appellant/defendant that P.W.2 is an interested witness.
To prove the stand of the defendant, he mainly relied on the expert
evidence.
As seen from the testimony of C.W.1, after careful examination and comparison of the disputed and standard signatures in the original documents she gave opinion that questioned signatures marked as Q1 and Q2 are traced forgery.
As per the testimony of C.W.1, questioned documents exhibit inherent signs of
forgery such as slow and drawn movement, detective line quality, poor skill,
slow speed, hesitations, unnatural breaks and consciousness in writing.
She
issued Ex.X4 two dia positives containing the questioned signatures.
Ex.X1 is
the opinion given by C.W.1 along with file No.DCV/309, dated 25.1.2002,
Ex.X2 is
the photo chart containing questioned and standard signatures as Q1 and Q2 and
S1 to S4, and Ex.X3 is two negatives of Ex.X4 dia positives.
The rule of prudence requires the court to send the admitted and
contemporary signatures of the person to the expert to compare the same with his
disputed signatures on the document. According to Cambridge Advanced Learner's
Dictionary "Contemporary" means belonging to the same or a stated period in the
past. It is needless to say that admitted signatures means the signatures on
the documents maintained by any authority in course of its business such as
signatures on a passport, income-tax returns, bank passbook or registered sale
deed.
Let me consider the facts of the case on hand, in the light of the above
principles.
The suit promissory note is dated 30.3.1997.
The signatures of the
defendant were taken in open court on 07.11.2001 to send the same for comparison
with his disputed signature on Ex.A1 promissory note dated 30.3.1997.
This
factual aspect clearly manifest that the contemporary signatures of the
defendant were not sent to the expert for comparison.
It is not in dispute that
the signatures of the defendant on the bank passbook or passport or sale deed
were not sent to the expert for comparison.
The court shall not lose sight of
the relevant facts, in order to appreciate the rival contentions.
Prior to
07.11.2001, the defendant was very much aware that he has taken a specific plea
in the written statement that Ex.A1 does not bear his signature.
Therefore, the
court has to take into consideration the tendency of a human being in getting
over the situation adverse to him.
In such circumstances, the possibility of
changing pattern and style of the signature by the defendant, while putting his
signature in open court, to distinguish his usual signature cannot be ruled out
completely, so as to substantiate his stand in the written statement.
Even as per the testimony of C.W.1, the questioned signatures were signed
with a ball-point pen whereas the admitted signatures S2 to S4 were signed with
a sketch pen.
There is every possibility for variation if the same person puts
his signature with a sketch pen and a ball-point pen.
C.W.1 did not mention the
age of the questioned signatures on Ex.A1.
She further admitted that she has
not mentioned the design of the letters in her reasons.
In the cross-
examination, she has categorically deposed that she obtained Post Graduation in
Zoology in the year 1978.
She further deposed that she is not having diploma in
examination of questioned documents.
As per the expert opinion the disputes signatures are traced forgery.
The person who traced the signature of another
person must be in possession of the signatures of that person.
The defendant
has not placed any material much less cogent and convincing material, to establish that the plaintiff is having signatures of the defendant with him, which enabled him to trace his signature on Ex.A1 promissory note.
Therefore
the opinion of the expert that the disputes signatures are traced forgery is not
supported by any corroborative evidence.
A perusal of the testimony of C.W.1 reveals that out of experience she
learnt comparison of the handwriting. The fact remains that C.W.1 is not having
any diploma or degree in handwriting comparison.
All these facts create doubt
in the mind of the court whether the opinion expressed by C.W.1 is infallible.
In such circumstances, it is not safe to dismiss the suit, basing on
uncorroborated opinion of the expert (C.W.1).
In the instant case, there is convincing and legally admissible direct
evidence so far as execution of Ex.A1 promissory note by the defendant.
When
there is a conflict between the direct evidence and the expert opinion, the
court ought to have placed reliance on the direct evidence.
The decisions cited
by the defendant are no way helpful to substantiate his case. On the other
hand, the decisions cited by the plaintiff's counsel squarely apply to the facts
of the case on hand.
The trial court dismissed the suit on the premise that the court can place
reliance on uncorroborated opinion of the expert by discarding the direct
evidence.
The trial court has not given a specific finding that the testimony
of P.Ws.1 to 4 is not trustworthy for consideration. On the other hand, the
first appellate court in para-14 of its judgment, made an observation that there
are no discrepancies in the testimony of P.Ws.1 to 4 with regard to date, time
and place of execution of Ex.A1 promissory note and their evidence was not at
all shaken during their cross-examination. Having regard to the facts and
circumstances of the case, I have no hesitation to hold that the testimony of
P.Ws.1 to 4 inspires confidence of the court so far as Ex.A1 transaction is
concerned. The first appellate court has rightly applied the principles
enunciated in Brij Basi case (5 supra) and Shashi Kumar Banerjee case (6 supra)
and held that opinion of expert cannot outweigh the direct evidence, if the
direct evidence available on record is convincing. Therefore, I am unable to
agree with the findings recorded by the trial court as the same are not based on
sound principles of law.
In the light of the foregoing reasons, there is no question of law much
less substantial question of law in this case, which warrants interference of
this court, to set aside the decree and judgment of the first appellate court.
The second appeal is, therefore, dismissed. No costs.
The miscellaneous petitions, if any, pending in this appeal shall stand
closed.
__________________________
T.SUNIL CHOWDARY, J)
November 22, 2013
Interested witness - A worker in shop is not interested witness on that reason:-
P.W.1 being a party to the proceedings is entitled to depose evidence and
therefore he cannot be treated as interested witness. Simply because P.W.2 is
working in the shop of P.W.1, that itself is not sufficient ground to treat him
as interested witness. P.W.2 will not gain or lose anything if the suit is
decreed or dismissed. Having regard to the facts and circumstances of the case,
I am unable to countenance the argument of learned counsel for the
appellant/defendant that P.W.2 is an interested witness.
Evidentiary value of the Expert Opinion :-
The first appellate court has rightly applied the principles
enunciated in Brij Basi case (5 supra) and Shashi Kumar Banerjee case (6 supra)
and held that opinion of expert cannot outweigh the direct evidence, if the
direct evidence available on record is convincing. Therefore, I am unable to
agree with the findings recorded by the trial court as the same are not based on
sound principles of law.
The evidence of the expert being opinion evidence, cannot falsify the
convincing direct evidence4.
The opinion of the experts cannot outweigh the
direct evidence5.
Before acting on expert evidence, it is usual to see if it is
corroborated either by oral evidence or by circumstantial evidence6.
The opinion of expert is not infallible7.
The evidence given by an expert of handwriting can never a conclusive proof8.
The handwriting expert must compare the disputed signatures on promissory note with the admitted signature and not the signatures on the pleading and vakalat9.
The suit promissory note is dated 30.3.1997.
The signatures of the
defendant were taken in open court on 07.11.2001 to send the same for comparison
with his disputed signature on Ex.A1 promissory note dated 30.3.1997.
This
factual aspect clearly manifest that the contemporary signatures of the
defendant were not sent to the expert for comparison.
It is not in dispute that
the signatures of the defendant on the bank passbook or passport or sale deed
were not sent to the expert for comparison.
The court shall not lose sight of
the relevant facts, in order to appreciate the rival contentions.
Prior to
07.11.2001, the defendant was very much aware that he has taken a specific plea
in the written statement that Ex.A1 does not bear his signature.
Therefore, the
court has to take into consideration the tendency of a human being in getting
over the situation adverse to him.
In such circumstances, the possibility of
changing pattern and style of the signature by the defendant, while putting his
signature in open court, to distinguish his usual signature cannot be ruled out
completely, so as to substantiate his stand in the written statement.
Even as per the testimony of C.W.1, the questioned signatures were signed
with a ball-point pen whereas the admitted signatures S2 to S4 were signed with
a sketch pen.
There is every possibility for variation if the same person puts
his signature with a sketch pen and a ball-point pen.
C.W.1 did not mention the
age of the questioned signatures on Ex.A1.
She further admitted that she has
not mentioned the design of the letters in her reasons.
In the cross-
examination, she has categorically deposed that she obtained Post Graduation in
Zoology in the year 1978.
She further deposed that she is not having diploma in
examination of questioned documents.
As per the expert opinion the disputes signatures are traced forgery.
The person who traced the signature of another
person must be in possession of the signatures of that person.
The defendant
has not placed any material much less cogent and convincing material, to establish that the plaintiff is having signatures of the defendant with him, which enabled him to trace his signature on Ex.A1 promissory note.
Therefore
the opinion of the expert that the disputes signatures are traced forgery is not
supported by any corroborative evidence.
HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.40 of 2005
22-11-2013
Sallepalli Narasimha Reddy, S/o.Pulla REddy ... Appellant/Respondent/Defendant
Yerram Pedda Subba Reddy, S/o.Chinna Nagi Reddy...
Respondent/Appellant/Plaintiff
Counsel for the Appellant: Sri C.Damodar Reddy
Counsel for the respondent: Sri P. Veera Reddy
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. (1996) 2 SCC 428
2. (2000) 8 SCC 491
3. (2011) 4 SCC 726
4. 2003(1) ALD 260
5. AIR 1982 All 323
6. AIR 1964 SC 529
7. AIR 1921 Lah 126
8. AIR 1963 SC 1728(1)
9. AIR 2000 Mad 239
THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.40 of 2005
November 22, 2013
JUDGMENT:
This appeal is preferred by the defendant challenging the decree and
judgment dated 11.10.2004 in A.S.No.5 of 2003 on the file of Senior Civil Judge
Court, Allagadda, reversing the decree and judgment dated 10.4.2003 in
O.S.No.174 of 1999 on the file of Junior Civil Judge Court, Allagadda. The
parties are hereinafter referred to as they arrayed in the suit.
The case of the plaintiff is that the defendant borrowed an amount of
Rs.50,000/- from him on 30.3.1997 and executed a promissory note agreeing to
repay the same with interest at 24% per annum. In spite of repeated demands,
the defendant did not choose to repay the amount. On 21.4.1998, the plaintiff
got issued notice directing the defendant to repay the amount. The defendant
issued a reply notice stating that the promissory note is a forged one. Hence,
the suit.
The defendant filed written statement inter alia contending that he did
not borrow any amount from the plaintiff and the suit promissory note might have
been forged and fabricated by the plaintiff keeping in mind the land dispute
between them. The defendant also issued reply to the legal notice got issued by
the plaintiff.
In the trial court, on behalf of the plaintiff, P.Ws.1 to 4 were examined
and Exs.A1 to A3 were marked. On behalf of the defendant, D.W.1 and C.W.1 were
examined and Exs.X1 to X4 were marked.
On the analysis of oral, documentary evidence and other material available
on record, the trial court arrived at a conclusion that the suit promissory note
is forged one and dismissed the suit.
Being aggrieved by the decree and
judgment of the trial court, the unsuccessful plaintiff filed A.S. No.5 of 2003
on the file of Senior Civil Judge Court, Allagadda. The first appellate court,
after reappraising the oral and documentary evidence, arrived at a conclusion
that the suit promissory note is a valid one and the plaintiff is entitled to
recover the suit amount from the defendant. The defendant, being aggrieved by
the decree and judgment of the first appellate court, preferred the present
appeal.
The substantial questions that are pleaded in this appeal are:
(1) Whether the lower appellate court is justified in reversing the judgment of
the trial court by placing reliance on the evidence of P.Ws.1 and 2 who are
interested witnesses?
(2) Whether the lower appellate court is justified in discarding the Ex.X1 along
with Exs.X2 to X4 supported by the evidence of C.W.1?
(3) Whether the lower appellate court is justified in applying the principle
laid down in the judgments reported in AIR 1982 Allahabad 323 and AIR 1964 SC
529 to the facts of the present case?
(4) Whether the lower appellate court properly framed the points for
determination and answered the same properly in reversing the judgment of the
trial court?
To substantiate his case, the plaintiff examined himself as P.W.1 and got
marked Exs.A1 to A3. P.Ws.2 and 3 are the attestors and P.W.4 is the scribe of
Ex.A1 promissory note. To dislodge the case of the plaintiff, defendant
examined himself as D.W.1. C.W.1 is the expert through whom Exs.X1 to X4 were
marked.
Heard the learned counsel for the appellant/defendant and learned counsel
for the respondent/plaintiff.
Point No.4:
A perusal of the record reveals that the first appellate court has framed
the following two points for determination.
(i) Whether the evidence of the expert is conclusive and falsifies the direct
evidence of the attesting witnesses?
(ii) Whether the plaintiff is entitled for decree for recovery of suit amount?
It is needless to say that the appeal is continuation of the suit. A
legal obligation is cast on the part of the first appellate court to answer all
the issues framed by the trial court or should frame the points of law and facts
covering the issues framed by trial court and answer them properly. The trial
court had framed only one issue i.e., whether the suit promissory note is forged
document. The second point framed by the first appellate court covers the issue
framed by the trial court. In point No.1, the first appellate court elaborately
considered the oral, documentary evidence and other material available on
record, before arriving at such conclusion. The manner in which the first
appellate court framed the points for determination would not cause any
prejudice to the rights of the defendant. The first appellate court has
addressed both the points by following due procedure.
Point Nos.1, 2 and 3:
These three points are interrelated with each other and hence I am
inclined to address these points simultaneously in order to avoid repetition and
confusion.
In this appeal, the predominant contention of the learned counsel for the
appellant/defendant is that the first appellate court decreed the suit basing on
the testimony of interested witnesses while discarding the expert opinion. To
substantiate his contention, he relied upon the decisions in State (through
CBI/New Delhi) v S.J.Choudhary1,
the principle enunciated is that the opinion of
the typewriter expert is admissible under Section 45 of the Evidence Act;
Praveen Kumar v Suresh Chand2,
the principle enunciated is that the court can
place reliance on the opinion of the expert in respect of fake signature made on
process; and Tatipamula Naga Raju v Pattem Padmavathi3,
the principle enunciated
is that the court can place reliance on the opinion of the handwriting expert
confirming interpolations in the promissory note.
The contention of the learned counsel for the respondent/plaintiff is that
the decree and judgment of the trial court is not legally sustainable as its
findings are based on expert opinion which is a weak piece of evidence.
The
following principles can be deduced from the decisions cited by the learned
counsel for the plaintiff.
The evidence of the expert being opinion evidence, cannot falsify the
convincing direct evidence4.
The opinion of the experts cannot outweigh the
direct evidence5.
Before acting on expert evidence, it is usual to see if it is
corroborated either by oral evidence or by circumstantial evidence6.
The opinion of expert is not infallible7.
The evidence given by an expert of handwriting can never a conclusive proof8.
The handwriting expert must compare the disputed signatures on promissory note with the admitted signature and not the signatures on the pleading and vakalat9.
Let me consider the facts of the case on hand, in the light of the
principles enunciated in the cases cited supra. In the instant case, the
plaintiff has to establish that Ex.A1 promissory note is executed by the
defendant.
Once the plaintiff establishes the execution of promissory note the
onus shifts on the defendant to establish the suit promissory note is forged
one.
As per the testimony of P.W.1, the defendant borrowed an amount of
Rs.50,000/- from him on 30.3.1997 and executed Ex.A1 promissory note. As per
the testimony of D.W.1, he neither borrowed any amount from the plaintiff nor
executed Ex.A1 promissory note and it is a forged one. As seen from the
testimony of P.Ws.2 and 3, they attested the promissory note in the presence of
the plaintiff and defendant. As per the testimony of P.W.4, he scribed Ex.A1
promissory note and P.Ws.2 and 3 are the attestors.
As per the averments in the written statement, the plaintiff fabricated
Ex.A1 promissory note due to land disputes. In the cross-examination, D.W.1
deposed that he has no disputes with the plaintiff. He further deposed he
mentioned in the written statement that the suit promissory note might have been
forged keeping in mind the disputes between him and the plaintiff with regard to
purchasing of pesticides. The defendant has taken one stand in the written
statement and deposed different version with regard to alleged motive for
fabrication of Ex.A1 promissory note by the plaintiff. As per the testimony of
D.W.1, P.Ws.2 to 4 belong to Congress party and he belongs to Telugu Desam
Party. In the cross-examination, no suggestion was put to P.Ws.2 and 4 that
they belong to Congress party. In the cross-examination, P.W.3 denied the
suggestion that he belongs to Congress party. The version putforth by the
defendant, so far as fabrication of Ex.A1 promissory note, is not specifically
elicited from the testimony of P.Ws.1 to 4. In the cross-examination of P.Ws.1
to 4, nothing is elicited to shake their testimony regarding receiving of
consideration and execution of Ex.A1 promissory note by the defendant on
30.3.1997. In the cross-examination P.W.2 categorically deposed that he has
been working as a clerk in the shop of P.W.1. Even if the testimony of P.W.2 is
discarded in toto, still the oral testimony of P.Ws.3 and 4 is fully supporting
the version of the plaintiff. The testimony of D.W.1 clearly reveals that he
has been purchasing pesticides and fertilizers from the plaintiff's shop. It
clearly indicates acquaintance between them prior to Ex.A1 transaction. By
examining P.Ws.2 to 4 and marking Ex.A1, the plaintiff clearly established that
the defendant received an amount of Rs.50,000/- and executed Ex.A1 promissory
note.
P.W.1 being a party to the proceedings is entitled to depose evidence and
therefore he cannot be treated as interested witness. Simply because P.W.2 is
working in the shop of P.W.1, that itself is not sufficient ground to treat him
as interested witness. P.W.2 will not gain or lose anything if the suit is
decreed or dismissed. Having regard to the facts and circumstances of the case,
I am unable to countenance the argument of learned counsel for the
appellant/defendant that P.W.2 is an interested witness.
To prove the stand of the defendant, he mainly relied on the expert
evidence.
As seen from the testimony of C.W.1, after careful examination and comparison of the disputed and standard signatures in the original documents she gave opinion that questioned signatures marked as Q1 and Q2 are traced forgery.
As per the testimony of C.W.1, questioned documents exhibit inherent signs of
forgery such as slow and drawn movement, detective line quality, poor skill,
slow speed, hesitations, unnatural breaks and consciousness in writing.
She
issued Ex.X4 two dia positives containing the questioned signatures.
Ex.X1 is
the opinion given by C.W.1 along with file No.DCV/309, dated 25.1.2002,
Ex.X2 is
the photo chart containing questioned and standard signatures as Q1 and Q2 and
S1 to S4, and Ex.X3 is two negatives of Ex.X4 dia positives.
The rule of prudence requires the court to send the admitted and
contemporary signatures of the person to the expert to compare the same with his
disputed signatures on the document. According to Cambridge Advanced Learner's
Dictionary "Contemporary" means belonging to the same or a stated period in the
past. It is needless to say that admitted signatures means the signatures on
the documents maintained by any authority in course of its business such as
signatures on a passport, income-tax returns, bank passbook or registered sale
deed.
Let me consider the facts of the case on hand, in the light of the above
principles.
The suit promissory note is dated 30.3.1997.
The signatures of the
defendant were taken in open court on 07.11.2001 to send the same for comparison
with his disputed signature on Ex.A1 promissory note dated 30.3.1997.
This
factual aspect clearly manifest that the contemporary signatures of the
defendant were not sent to the expert for comparison.
It is not in dispute that
the signatures of the defendant on the bank passbook or passport or sale deed
were not sent to the expert for comparison.
The court shall not lose sight of
the relevant facts, in order to appreciate the rival contentions.
Prior to
07.11.2001, the defendant was very much aware that he has taken a specific plea
in the written statement that Ex.A1 does not bear his signature.
Therefore, the
court has to take into consideration the tendency of a human being in getting
over the situation adverse to him.
In such circumstances, the possibility of
changing pattern and style of the signature by the defendant, while putting his
signature in open court, to distinguish his usual signature cannot be ruled out
completely, so as to substantiate his stand in the written statement.
Even as per the testimony of C.W.1, the questioned signatures were signed
with a ball-point pen whereas the admitted signatures S2 to S4 were signed with
a sketch pen.
There is every possibility for variation if the same person puts
his signature with a sketch pen and a ball-point pen.
C.W.1 did not mention the
age of the questioned signatures on Ex.A1.
She further admitted that she has
not mentioned the design of the letters in her reasons.
In the cross-
examination, she has categorically deposed that she obtained Post Graduation in
Zoology in the year 1978.
She further deposed that she is not having diploma in
examination of questioned documents.
As per the expert opinion the disputes signatures are traced forgery.
The person who traced the signature of another
person must be in possession of the signatures of that person.
The defendant
has not placed any material much less cogent and convincing material, to establish that the plaintiff is having signatures of the defendant with him, which enabled him to trace his signature on Ex.A1 promissory note.
Therefore
the opinion of the expert that the disputes signatures are traced forgery is not
supported by any corroborative evidence.
A perusal of the testimony of C.W.1 reveals that out of experience she
learnt comparison of the handwriting. The fact remains that C.W.1 is not having
any diploma or degree in handwriting comparison.
All these facts create doubt
in the mind of the court whether the opinion expressed by C.W.1 is infallible.
In such circumstances, it is not safe to dismiss the suit, basing on
uncorroborated opinion of the expert (C.W.1).
In the instant case, there is convincing and legally admissible direct
evidence so far as execution of Ex.A1 promissory note by the defendant.
When
there is a conflict between the direct evidence and the expert opinion, the
court ought to have placed reliance on the direct evidence.
The decisions cited
by the defendant are no way helpful to substantiate his case. On the other
hand, the decisions cited by the plaintiff's counsel squarely apply to the facts
of the case on hand.
The trial court dismissed the suit on the premise that the court can place
reliance on uncorroborated opinion of the expert by discarding the direct
evidence.
The trial court has not given a specific finding that the testimony
of P.Ws.1 to 4 is not trustworthy for consideration. On the other hand, the
first appellate court in para-14 of its judgment, made an observation that there
are no discrepancies in the testimony of P.Ws.1 to 4 with regard to date, time
and place of execution of Ex.A1 promissory note and their evidence was not at
all shaken during their cross-examination. Having regard to the facts and
circumstances of the case, I have no hesitation to hold that the testimony of
P.Ws.1 to 4 inspires confidence of the court so far as Ex.A1 transaction is
concerned. The first appellate court has rightly applied the principles
enunciated in Brij Basi case (5 supra) and Shashi Kumar Banerjee case (6 supra)
and held that opinion of expert cannot outweigh the direct evidence, if the
direct evidence available on record is convincing. Therefore, I am unable to
agree with the findings recorded by the trial court as the same are not based on
sound principles of law.
In the light of the foregoing reasons, there is no question of law much
less substantial question of law in this case, which warrants interference of
this court, to set aside the decree and judgment of the first appellate court.
The second appeal is, therefore, dismissed. No costs.
The miscellaneous petitions, if any, pending in this appeal shall stand
closed.
__________________________
T.SUNIL CHOWDARY, J)
November 22, 2013
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