Evidence Act, 1872 – Section 73 empowers the Court to compare the disputed signature with the admitted one. But decisions on the point say that Court shall not based its decision with naked eye alone. Opinion of the expert is not conclusive but certainly is a circumstance which can be taken into account.

# 2011 (3) KLT SN 27 (C.No.27) : 2011 (3) KHC 565


Hon’ble MR Justice THOMAS P. JOSEPH

Dated this the 1st Day of August, 2011

O. P. (C) No. 2399 of 2011

For Petitioner: Rajesh P. Nair


1. Ext. P4, order passed by the Court of learned Additional Sub Judge-I, Thiruvananthapuram on 16/06/2011 on I.A. No. 1847 of 2011 in OS No. 830 of 2007 is under challenge in this proceeding. Petitioner filed the suit against respondent for recovery of money based on a dishonoured cheque alleging that respondent borrowed Rupees Eight lakhs from him in the year, 2007 and executed the cheque in question. Respondent denied allegations and contended that she has not executed any cheque as alleged for repayment of Rupees Eight lakhs and claimed that in connection with borrowal of Rupees Ten thousand petitioner had obtained signed blank cheque and blank stamp paper which has been misused. She has specifically contended that there was no occasion for her to borrow Rupees Eight lakhs nor has petitioner the capacity to pay such amount. Parties went to trial and petitioner was examined as PW 1. When respondent was in the box Ext. P1, letter allegedly written by her to her mother was put to her obviously with intend to prove that she had borrowed Rupees Eight lakhs from the petitioner as mentioned in the said letter. Respondent denied that she has sent such letter to her mother. Thereon petitioner filed I.A. No. 1847 of 2011 to send Ext. P1, to expert for opinion and for the said purpose to obtain specimen handwriting of the respondent in the Open Court. Leaned Sub Judge directed respondent to give her specimen handwriting in Open Court and that was taken. However, learned Sub Judge dismissed I.A. No. 1847 of 2011 by the impugned order.

2. Learned counsel for petitioner contends that the main reason stated by learned Sub Judge to disallow Interlocutory Application No.1847 of 2011 is that report of expert is not conclusive and considerable time has elapsed since institution of the suit. It is contended by leaned counsel that petitioner being plaintiff would not in the normal course attempt to protract the proceeding to his disadvantage. It is also contended that learned Munsiff has observed that report of the expert is not conclusive. It is contended that the report is a reliable piece of evidence. Reliance is placed on the decision in

# Damara Venkata Murali Krishna Rao Vs. Gurujupalli Satvathamma, (2008) 12 SCC 170

where it is held that opinion of the expert is certainly a piece of evidence in support of the alleged execution of the document.

3. Learned counsel for respondent contended that attempt of petitioner is only to harass respondent who is a poor widow, her husband, an Army man having expired in the War against terrorists. It is submitted that she lost her only son and now she is a hapless widow. It is pointed out that she was abducted by petitioner and others and her signature was forcibly obtained for which police has registered a case. Further contention is that even in Ext. P1 sought to be sent to the expert for opinion was not produced along with the plaint or at a time petitioner was examined as PW 1 so that, respondent did not get opportunity to cross-examine petitioner with reference to the disputed document (Ext. P1). It is also the contention of learned counsel that the letter is allegedly sent to the mother of respondent but no attempt was made to examine the mother of respondent as a witness. It is contended that the postal cover in which the letter was allegedly received by the mother was not produced. Further contention is that it is not shown that ‘Kumar’ mentioned in Ext. P1 is the petitioner. It is pointed out that at any rate if at all it is necessary it is within the power of the Court below to invoke Section 73 of the Evidence Act (for short, “the Act”).

4. The document in question was produced, undoubtedly for cross-examination of respondent when examined as DW 1. Court can permit the opposite party to produce a document for cross-examination. Here the suit is based on a dishonoured cheque which was produced along with the plaint. Therefore it cannot be contended that the document made use of to contradict the version of respondent as DW 1 in the course cross-examination could not be admitted in evidence.

5. Now the question is whether Ext. P1 should be sent to the expert for opinion. The question whether ‘Kumar’ mentioned in Ext. P1 is petitioner or any other person is a matter which the Court below has to decide at the appropriate stage. I leave that matter there.

6. On the question whether Ext. P1 is required to be sent to the expert, learned counsel for petitioner has invited my attention to the reference in Ext. P1 as if respondent is indebted to the petitioner for more than Rupees Nine lakhs. According to the respondent she has not borrowed any amount as claimed by the petitioner (Rupees Eight lakhs) nor issued any cheque for the said amount. In the circumstances I am inclined to think that there is some relevance in the document in question and whether the said document was actually written by the respondent.

7. True that Section 73 of the Act (Evidence Act, 1872) empowers the Court to compare the disputed signature with the admitted one. But decisions on the point say that Court shall not based its decision with naked eye alone. Opinion of the expert is not conclusive but certainly is a circumstance which can be taken into account.

8. I must also bear in mind that learned Sub Judge had directed the respondent to appear in Court and give specimen handwriting and accordingly specimen handwriting was taken. I find no reason to think that petitioner-plaintiff stands to gain by prolonging the litigation by sending the handwriting to the expert. However, if as contended by respondent that she has not sent any letter like Ext. P1 that fact also could be ascertained through the expert and that would only go to the advantage of the respondent. Bearing these aspects in mind I am not inclined to think that an opportunity to the petitioner to adduce evidence should be shut out. Hence the impugned order is liable to be set aside.

9. Resultantly, Original Petition is allowed. Ext. P4, order dated 16th June, 2011 is set aside and lA No. 1847 of 2011 (in OS No. 830 of 2007) is allowed. Learned Sub Judge is directed to pass follow up orders to get the report at the earliest and dispose of the case as provided under law. Petitioner has to bear expenses to get the report. I make it clear that I have not made any observation as to the manner in which disputed document in question is to be proved in evidence.

C. Sreekumar Vs. D. Indira Devi [Kerala High Court, 01-08-2011]


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