Gummadi Venkata Padma Rani, v. Yellabilli Eswara Rao
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO C.R.P.No.773 of 2015 ORDER:
Heard Sri K.V.Subrahmanya Narusu, learned counsel for the petitioners and Sri V.V.Satish, learned counsel for the respondent.
2. This Revision Petition is filed challenging the Order dt.06-08-2014 in I.A.No.641 of 2014 in O.S.No.142 of 2011 of the Senior Civil Judge, Gajuwaka.
3.
Petitioners herein are defendants in the above suit. The respondent-plaintiff filed the suit for recovery of money against the petitioners on the basis of a promissory note dt.11-05-2008 allegedly executed by the petitioners in favour of the respondent at the respondent's residence in the presence of attestors and scribe for a sum of Rs.2,50,000/- agreeing to repay it with interest @ 24% per annum.
4.
The petitioner took a plea in the written statement that the promissory notes in question were actually given by the petitioners in blank after signing them in connection with a different transaction from one Chowdary and one S.V.S.Appa Rao in the year 2002; although the debt under the 2002 transaction has been discharged by December 2004, the blank promissory notes given by the petitioners had not been returned; and the suit appears to have been filed using one of such
blank promissory notes signed by the petitioners by putting a date 11-05-2008 on it.
5. Issues were framed. Trial commenced and concluded.
6. At that stage when the matter was posted for arguments, petitioners filed I.A.No.641 of 2014 under Section 45 of the Evidence Act, 1872 to refer the suit promissory note to handwriting expert, Central Bureau of Government Examiners at Hyderabad alleging that the handwriting in the body of the promissory note does not belong to them and that it is necessary to ascertain the year in which the signatures were scribed on the said document, since it would assist the petitioners in their defence that the signatures made by them thereon in 2002 were utilized by the respondent by putting a date 1105-2008. 7.
The respondent opposed the said application.
8.
By order dt.06-08-2014, the Court below dismissed the said application. It held that the signature on the said promissory notes having been admitted by the petitioners, forwarding of the signatures of the petitioners for expert opinion does not arise.
As regards the ascertainment of the age of the ink of the signatures of the petitioners are concerned, it held that technology does not exist to determine the age of the ink when the age is only
one or two years.
9. Challenging the same, this Revision Petition is filed.
10. Learned counsel for the petitioners contended that the order passed by the Court below is erroneous; that the defence of the petitioners is that blank suit promissory notes were issued by them to the respondent in the year 2002; and one of such blank promissory notes was filled up by the respondent as bearing a date 11-052008 and then the suit has been filed thereon. He contended that technology exists to determine the age of the ink and that it is also necessary to ascertain whether the other writing on the suit promissory notes belongs to the petitioners or not. He relied upon the judgment of the Madras High Court reported in A.Sivagnana Pandian Vs. M.Ravichandran[1] in that regard.
11. Learned counsel for the respondent on the other hand supported the order passed by the Court below and contended that once the signature on the suit promissory note is admitted, it could be a futile exercise to send the suit promissory note to an expert to ascertain the other writing thereon. He also contended that it is difficult to determine the age of handwriting and relied upon the judgments of Yash Pal Vs. Kartar Singh[2], S.Gopal Vs. D.Balachandran[3] and Kambala Nageswara Rao Vs.
Kesana Bala Krishna[4].
12. I have noted the submissions of both sides.
13. The question whether age of writing on document could be determined with accuracy or not was considered by the Supreme Court Shashi Kumar Banerjee and others vs. Subodh Kumar Banerjee since deceased and after him/his legal representatives and others[5]. In para-23, it held: "23. Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on "Questioned Documents" at p.
464 says even with respect to chemical tests that "the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based". In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances."
Thus in the opinion of the Supreme Court chemical test determining age would be mere excuse to make a guess and do not furnish reliable data upon which a definite opinion can be based.
14. In Yash Pal (2 supra), the said High Court in para-5 held:
"5. A perusal of the aforementioned provision shows that a discretion has been vested in the Civil Court to get any scientific investigation conducted only if it thinks necessary or expedient in the interest of justice. The basic rationale of the provision is that if the opinion of the scientific investigation is going to help in extracting the truth and determining the controversy raised in the dispute before the Court then such an investigation could be permitted. However, in the present case, such investigation is not likely to help to conclusively prove that the writing dated 11-2-1998 was in fact recorded earlier because the age of the ink cannot be determined on the basis of the writing.
If the ink is manufactured five years before the date of the execution of the document and used on 11-2-1998 for the first time then instead of resolving any controversy it would create confusion. Therefore, no useful purpose could be served by allowing such an application. It is true that opinion of expert is relevant under Sections 45 and 46 of the Indian Evidence Act, 1872 but in the present case that has to be read with Order 26. Rule 10A of the Code. The basic rationale is whether such scientific investigation is going to advance the cause of Justice and would be necessary for adjudicating upon the rights of the parties. Therefore, I do not find any ground to interfere in the well reasoned order passed by the learned Civil Judge.
The revision petition does not disclose any irregularity or illegality warranting interference of this Court in exercise of its jurisdiction under Section 115 of the Code."
15. This judgment has been followed by the Madras High Court in S.Gopal (3 supra). The Madras High Court has also taken a view that if an old ink is used by the person, who asssisted the drawer who had already put his signature in the cheque, to fill up the matter, no useful purpose will be served if such a cheque is analysed by the expert for rendering an opinion.
16. In Kambala Nageswara Rao (4 supra), this
Court also considered the said issue and observed that in situations where signature on promissory notes is not disputed but age thereon is required to be determined, complications would arise. It held that mere determination of the age, even if there exists any facility for that purpose, cannot, by itself, determine age of signature, particularly if the ink or the pen was manufactured several years ago before it was used, to put a signature. If there was a gap of 10 years between the date of manufacture of ink or pen, and the date on which the signature was put or document was written, the document cannot be said to have been executed or signed on the date of manufacture of ink or pen. Therefore, it held that forensic evidence of the age would be irrelevant.
17. Learned counsel for the petitioner relied upon the judgment of the Madras High Court in A.Sivagnana Pandian (1 supra), where the Madras High Court has taken a contrary view. In that case also, the Court considered the question of determination of the age of the ink on a promissory note and after referring to certain Journals, came to the opinion that technology exists to determine the age of the ink which was not there when the decision of the Supreme Court in Shashi Kumar Banerjee (5 supra) rendered.
18. Therefore, even assuming that the view taken therein is different, difficulties as pointed out by this Court
in the decision rendered in Kambala Nageswara Rao (4 supra) still remain. So the said decision cannot be basis to send a document to an expert to determine the age of the writings therein.
19. For all these reasons, I do not find any merit in the Civil Revision Petition and the same is accordingly dismissed. No costs.
20. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.
__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 29-06-2015 kvr [1] 2011 Crl.L.J. 4152 [2] AIR 2003 Punjab and Haryana 344 [3] 2008 Law Suit (Mad) 60 [4] 2014 (1) ALD 521 [5] AIR 1964 S.C. 529