Sec. 45 of Evidence Act - Review of it's own orders -'error apparent on the face of the record' and an 'erroneous decision' - Bankers book Evidence Act - presumption of Bank records valid - Documents called for sending Expert opinion as contemporary documents along with disputed document - lower court allowed - but the high court dismissed as it's genuineness was questioned by defendant against the Bankers Book Evidence Act - High court allowed the revision - the same is reviewed and order of High court set aside and Lower court order was confirmed = Anapalli Bhaskar and others.... Petitioners/Respondents Gudi Venkateswarlu and others.... Respondents/Revision Petitioners= published in judis.nic.in/judis_andhra/filename=10317

Sec. 45 of Evidence Act - Review of it's own orders -'error apparent on the face of the
record' and an 'erroneous decision' - Bankers book Evidence Act - presumption of Bank records valid - Documents called for sending Expert opinion as contemporary documents along with disputed document - lower court allowed - but the high court dismissed as it's genuineness was questioned by defendant against the Bankers Book Evidence Act - High court allowed the revision - the same is reviewed and order of High court set aside and Lower court order was confirmed =
 The plea of the defendants was that they disputed the thumb impressions
alleged to have been affixed by Anapalli Vandanam and Rondla Ademma in the bank  
documents, Exs.A.11 and 12, and that the same could not therefore be the basis
for comparison and verification of the thumb impressions in the disputed sale
deeds. 
Accepting this contention, the learned Judge opined that merely because
Exs.A.11 and 12 were bank documents it would not mean that Anapalli Vandanam and    
Rondla Ademma executed those documents in connection with bank transactions. 
The    
learned Judge concluded that unless there was certainty or there was no
ambiguity, no useful purpose would be served by sending Exs.A.11 and 12 along 
with the disputed sale deeds to an expert for comparison and report. 
The learned
judge observed that instead of proving these thumb impressions it would be
proper to establish the thumb impressions in the disputed sale deeds by
examining the concerned attestors, scribe or any other witness/witnesses. 
The
learned Judge held that the trial Court allowed the I.A. without basis and on
unsustainable surmises. Holding so, the learned Judge allowed the C.R.P. and set
aside the order passed by the trial Court. Hence, this review petition.=
The Supreme Court observed that a judgment may be open to    
review, inter alia, if there is an error apparent on the face of the record;
such an error being self-evident and not requiring a process of reasoning to
detect it. The Supreme Court pointed out that review jurisdiction would not be
applicable to an 'erroneous decision' which needed rehearing and correction and
cautioned that a review petition could not be allowed to be an appeal in
disguise.
        Keeping a clear distinction between an 'error apparent on the face of the
record' and an 'erroneous decision' would thus be essential while exercising
review jurisdiction.    
        The learned Judge, while allowing the C.R.P., did not consider the import
and impact of the presumption in law which attached to the bank documents,
Exs.A.11 and 12, with which the thumb impressions in the disputed documents were  
sought to be compared. 
Consequently, it was not a case where the request for
examination by an expert could be rejected at the threshold on the ground that
the opposite party disputed the genuineness of the thumb impressions in the bank
documents. 
No doubt, the presumption which attaches to these documents is not  
absolute and it would be open to the opposite party to dislodge such presumption
by adducing evidence to the contrary. 
However, such a party cannot shut out
examination of these documents by an expert by a bald assertion that it disputed
the genuineness thereof. This Court therefore finds that the order under review
reflected an error apparent.
        The order passed by the Court below was therefore just and valid in law
and did not brook interference. The order dated 28.01.2013 holding to the
contrary and allowing the C.R.P. is accordingly set aside.

THE HON'BLE SRI JUSTICE SANJAY KUMAR      

REVIEW CRP MP NO.1362 OF 2013 AND BATCH        


DATED 16TH SEPTEMBER, 2013    

Anapalli Bhaskar and others.... Petitioners/Respondents

Gudi Venkateswarlu and others.... Respondents/Revision Petitioners


Counsel for petitioners:  Sri Srinivas Karra

Counsel for respondents:  Sri T.C.Krishnan

<GIST:

>HEAD NOTE:  


THE HON'BLE SRI JUSTICE SANJAY KUMAR      

REVIEW CRP MP NO.1362 OF 2013    
IN
C.R.P.NO.6291 OF 2012

O R D E R


C.R.P.No.6291 of 2012 was allowed by a learned Judge of this Court, since
retired.  The respondents in the CRP seek review of the said order.
         The petitioners in the C.R.P. are the defendants in O.S.No.744 of 2007 on
the file of the learned I Additional Senior Civil Judge, Nellore.
The
respondents in the CRP, the review petitioners, are the plaintiffs therein.
This
suit was instituted seeking cancellation of three sale deeds dated 13.08.1990
said to have been executed by late Anapalli Vandanam and late Rondla Ademma. 
The   
case of the plaintiffs is that they are the legal heirs of Anapalli Vandanam and
Rondla Ademma and that the defendants had forged their thumb impressions in the 
three sale deeds and got them registered.
        After closure of their evidence, the plaintiffs filed I.A.No.718 of 2012
in the suit to reopen the case. This I.A. was dismissed by the trial Court and
C.R.P.No.4911 of 2012 was filed before this Court assailing the same. By order
dated 01.10.2012, this Court held that a reasonable opportunity should be
granted to the plaintiffs to let in their whole evidence and the trial Court was
directed to accord them an opportunity to do so.
        Thereupon, having got two bank documents marked in evidence as Exs.A.11   
and 12 through the bank manager concerned, the plaintiffs filed I.A.No.1184 of
2012 under Section 45 of the Indian Evidence Act, 1872 (for brevity, 'the Act of
1872') read with Section 151 C.P.C to send the disputed sale deeds for expert
opinion as to the thumb impressions therein in comparison with those affixed by
Anapalli Vandanam and Rondla Ademma in the bank documents, Exs.A.11 and 12. By      
order dated 03.12.2012, the trial Court allowed the I.A and directed the
documents to be forwarded to the finger print expert for obtaining an opinion.
This order was called in question in the present C.R.P.No.6291 of 2012 by the
defendants.
        The plea of the defendants was that they disputed the thumb impressions
alleged to have been affixed by Anapalli Vandanam and Rondla Ademma in the bank  
documents, Exs.A.11 and 12, and that the same could not therefore be the basis
for comparison and verification of the thumb impressions in the disputed sale
deeds. 
Accepting this contention, the learned Judge opined that merely because
Exs.A.11 and 12 were bank documents it would not mean that Anapalli Vandanam and    
Rondla Ademma executed those documents in connection with bank transactions. 
The    
learned Judge concluded that unless there was certainty or there was no
ambiguity, no useful purpose would be served by sending Exs.A.11 and 12 along 
with the disputed sale deeds to an expert for comparison and report. 
The learned
judge observed that instead of proving these thumb impressions it would be
proper to establish the thumb impressions in the disputed sale deeds by
examining the concerned attestors, scribe or any other witness/witnesses. 
The
learned Judge held that the trial Court allowed the I.A. without basis and on
unsustainable surmises. Holding so, the learned Judge allowed the C.R.P. and set
aside the order passed by the trial Court. Hence, this review petition.
        Heard Sri K.S.Gopala Krishnan, learned counsel appearing for Sri
T.C.Krishnan, learned counsel for the review petitioners/plaintiffs, and Sri
Karra Srinivas, learned counsel for the respondents/defendants.
        Section 4 of the Banker's Books Evidence Act, 1891 (for brevity, 'the Act
of 1891') is relied upon by the review petitioners/plaintiffs. 
This Section
relates to the mode of proof of entries in banker's books and reads as under:
"4.     Mode of proof of entries in banker's books.--
Subject to the provisions
of this Act, a certified copy of any entry in a banker's book shall in all legal
proceedings be received as prima facie evidence of the existence of such entry,
and shall be admitted as evidence of the matters, transactions and accounts
therein recorded in every case where, and to the same extent as, the original
entry itself is now by law admissible, but not further or otherwise."

        Under the above provision a presumption as to the genuineness of the
matter/transaction/account recorded in an entry in the banker's books would
arise upon a certified copy of such entry being adduced as prima facie evidence
of the existence of such entry.
This presumption, as is clear from the
provision, would apply to all legal proceedings. 
A 'Legal Proceeding' is defined
under Section 2(4) of the Act of 1891 in the widest possible terms to include,
amongst others, any proceeding or enquiry in which evidence is or may be given.
        Banker's Books, under Section 2(3) of the Act of 1891, are defined as
under:
(3)     "bankers' books" include ledgers, day-books, cash-books, account-books and 
all other records used in the ordinary business of the bank, whether these
records are kept in written form or stored in a micro film, magnetic tape or in
any other form of mechanical or electronic data retrieval mechanism, either
onsite or at any offsite location including a back-up or disaster recovery site
or both;
        
        Thus, any record maintained of its ordinary business by the bank in the
written form or on micro film etc., would fall within the ambit of this
definition.
        Ex.A.11 is the certified copy of a proforma obtained by the Vavveru
Cooperative Rural Bank Limited from Rondla Ademma wherein she declared that the  
bank rules had been read by her and that she accepted it as being binding upon
her. This declaration was executed on 22.04.1993 and bore her left thumb
impression. Again, in the column specified for specimen signatures, a thumb
impression with the endorsement 'LTI of Rondla Ademma' is found. Ex.A12 is the
proforma 'Declaration creating charge' obtained by the Vavveru Cooperative Rural
Bank Limited from Anapalli Vandanam, wherein he admitted his membership in the  
Bank and created a charge on his property towards securing a loan. The schedule
in this proforma, bearing the details of the land mortgaged, is appended with a
thumb impression with the inscription 'LTI of Anapalli Vandanam'. The second
page of this proforma again bears a thumb impression with the endorsement 'LTI
of Anapalli Vandanam'.
        These documents, being a record of the bank's usual and ordinary business
transactions, fall squarely within the ambit of banker's documents as defined in
Section 2 (3) of the Act of 1891.
In terms of Section 4 of the said Act, a
presumption therefore attaches to the certified copies of these documents as
prima facie evidence of the transactions recorded therein.
        Even under general law, a special status attaches to bank documents.
Section 74 of the Act of 1872 defines 'public documents'. Documents forming the
acts or records of the acts of, amongst others, public officers are included in
this definition. 
As long back as in the year 1904, a learned Judge of the
Calcutta High Court
  in CHANDI CHARAN DHAR V/s. BOISTAB CHARAN DHAR1 held that a          
loan register maintained by a bank is a public document within the meaning of
Section 74 of the Act of 1872. 
Section 76 of the Act of 1872 provides that
certified copies of such public documents can be proved by the officer having
custody thereof. In the present case, Exs.A.11 and 12 were produced from proper
custody and were marked in evidence upon examination of the bank officer
concerned. Section 77 of the Act of 1872 provides that such certified copies may
be received as proof of the contents of the public documents of which they
purport to be copies. Section 79 of the Act of 1872 attaches a presumption as to
genuineness of the certified copies of public documents admissible as evidence.
        Sri Karra Srinivas, learned counsel for the respondents/defendants, would
however contend that his clients deny that Anapalli Vandanam and Rondla Ademma   
executed Exs.A.11 and 12 and affixed their thumb impressions therein. 
But once a
presumption of genuineness attaches to the transactions recorded in Exs.A.11 and
12, they cannot be partly accepted and then doubted in part owing to a mere
denial that the documents were not entered into by the persons who allegedly
executed them. 
Once the document records that the transaction reflected therein
was between the bank and the person who affixed his/her thumb impression, prima 
facie, a presumption would operate to the effect that the thumb impression was
that of the person who allegedly entered into the transaction. 
This presumption
however, as is clear from Section 4 of the Act of 1891, would be a rebuttable
one.
It is for the respondents/defendants to adduce necessary evidence to rebut
this presumption but at the outset, the thumb impressions in these bank
documents cannot be discarded on the bald assertion of the defendants that they
disputed the genuineness thereof. The presumption arising in law would negate
such a claim.
        Expert evidence on fingerprint verification would invariably rank higher
than that on signature comparison as fingerprints would not be subject to the
vagaries and inconsistencies inherent to signatures.
In this regard, it may be
noticed that
in SUNIL CHOWDHURY V/s. ARUP KUMAR GHOSH2,
a Division Bench of the      
Calcutta High Court observed that the opinion of a handwriting expert, unlike
that of a finger print expert, is generally of a frail character and that its
fallibilities had been quite often noticed.
In so far as comparison of fingerprints by the Court is concerned the Supreme
Court, 
in THIRUVENGADAM PILLAI V/s. NAVANEETHAMMAL3, observed as under:        
"16. While there is no doubt that court can compare the disputed
handwriting/signature/finger impression with the admitted handwriting/
signature/finger impression, such comparison by court without the assistance of
any expert, has always been considered to be hazardous and risky. When it is
said that there is no bar to a court to compare the disputed finger impression
with the admitted finger impression, it goes without saying that it can record
an opinion or finding on such comparison, only after an analysis of the
characteristics of the admitted finger impression and after verifying whether
the same characteristics are found in the disputed finger impression. The
comparison of the two thumb impressions cannot be casual or by a mere glance. 
Further, a finding in the judgment that there appeared to be no marked
differences between the admitted thumb impression and disputed thumb impression, 
without anything more, cannot be accepted as a valid finding that the disputed
signature is of the person who has put the admitted thumb impression. Where the
court finds that the disputed finger impression and admitted thumb impression
are clear and where the court is in a position to identify the characteristics
of fingerprints, the court may record a finding on comparison, even in the
absence of an expert's opinion. But where the disputed thumb impression is
smudgy, vague or very light, the court should not hazard a guess by a casual
perusal."
        
        By and large, it would be advisable that the Court seek assistance of an
expert under Section 45 of the Act of 1872 for examining finger prints as the
same involves a scientific study and forensic analysis which the Court would be
incapable of undertaking independently. On the same lines, a learned Judge of
this Court,
in CHITYALGUNDAMEEDE RAMALAKSHMAMMA V/s. EDIGA RANGAMMA (DIED) PER                    
L.RS4, observed that it would not be possible for the Court to undertake
comparison of thumb impressions and it would be appropriate in the interest of
justice to permit a party to substantiate his/her case by securing the opinion
of a forensic expert.
        The next issue is
whether this Court should exercise review jurisdiction
in the matter. 
The scope of a review under Section 114 C.P.C read with Order 47
Rule 1 C.P.C fell for consideration before the Supreme Court in 
PARSION DEVI V/s. SUMITRI DEVI5. 
The Supreme Court observed that a judgment may be open to    
review, inter alia, if there is an error apparent on the face of the record;
such an error being self-evident and not requiring a process of reasoning to
detect it. The Supreme Court pointed out that review jurisdiction would not be
applicable to an 'erroneous decision' which needed rehearing and correction and
cautioned that a review petition could not be allowed to be an appeal in
disguise.
        Keeping a clear distinction between an 'error apparent on the face of the
record' and an 'erroneous decision' would thus be essential while exercising
review jurisdiction.    
        The learned Judge, while allowing the C.R.P., did not consider the import
and impact of the presumption in law which attached to the bank documents,
Exs.A.11 and 12, with which the thumb impressions in the disputed documents were  
sought to be compared. 
Consequently, it was not a case where the request for
examination by an expert could be rejected at the threshold on the ground that
the opposite party disputed the genuineness of the thumb impressions in the bank
documents. 
No doubt, the presumption which attaches to these documents is not  
absolute and it would be open to the opposite party to dislodge such presumption
by adducing evidence to the contrary. 
However, such a party cannot shut out
examination of these documents by an expert by a bald assertion that it disputed
the genuineness thereof. This Court therefore finds that the order under review
reflected an error apparent.
        The order passed by the Court below was therefore just and valid in law
and did not brook interference. The order dated 28.01.2013 holding to the
contrary and allowing the C.R.P. is accordingly set aside. Review CRP MP No.1362 
of 20013 is allowed and the Civil Revision Petition is dismissed. No order as to
costs.


-------------------------------------------
SANJAY KUMAR, J.  
16TH SEPTEMBER, 2013.

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