Vijay Taneja v. Naresh Gureja







































































         

 


























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"8. If those letters are genuine, no doubt, they would reflect the mind of A1 and A2 towards the deceased. PW20 (M.L. Sharma) Government Examiner on questioned documents, after comparing the handwriting in the said letters gave an opinion that both were written by the accused. An attempt was made by the accused, through the evidence of DW1 (N.K. Jain who claimed to be an expert in the science of handwriting) to show that opinion of the Government Examiner is basically faulty. High Court has observed that "there is a natural tendency on the part of an expert witness to support the view of the person who called him" and preferred the opinion of PW20M.L. Sharma. The said observations of the High Court cannot be downstaged, for, many socalled experts have shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them.

9. It must be remembered and expert regarding hand writing is not the only mode by which genuineness of a document can be established. The requirement in Section 67 of the Evidence Act is only that the handwriting must be







































































 proved to be that of the person concerned. In order to prove the identity of the handwriting any mode not forbidden by law can be resorted to. Of course, two modes are indicated by law in Sections 45 and 47 of the Evidence Act. The former permits expert opinion to be regarded as relevant evidence and the latter permits opinion of any person acquainted with such handwriting to be regarded as relevant evidence. Those and some other provisions are subsumed under the title "opinion of third persons, when relevant". Opinions of third persons, other than those enumerated in the fasciculus of provisions, would have been irrelevant. Among the permitted opinions those mentioned in Sections 45 and 47 are also included.

So it cannot be said that identity of handwriting of a document can be established only by resorting to one of those two sections. There can be other modes through which identity of the handwriting can be established. Citing an example, if a letter is seized from the possession of 'A' and the letter contains the name of the sender as well as the name of the sendee and if such sendee happens to be 'A' himself, those circumstances even without resorting to the mode indicated in Sections 45 and 47 of the Evidence Act, would be sufficient to draw an inference that the author or even scribe of that letter is the sender and 'A' is the sendee of it.




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"12. In view of Tarak Nath (supra), the Court is not an handwriting expert. The Court does it only through its visual experience. Ordinarily, the Court should not take upon itself the responsibility of comparing signatures when disputed, as in such matters technical expertise is necessary. In view of the above discussion and the fact that







































































 the trial Court has to determine a fact and to give weight and see credibility of experts' opinion, the opinion of third Government expert which may be an independent opinion may help the Court to break the stalemate and mitigate the conflict between the opinions of private experts giving conflicting opinions. Although the opinion of the third expert is not binding upon the Court, yet the trial Court being a Court of fact has to arrive at independent decision and opinions of experts are not binding upon the trial Court as the Court is undoubtedly an expert of experts The conflicting opinions from equal number of experts between two sides is a common scenario in our legal system.

It is true that a party having a weak case concentrates on discrediting the witness by old tricks of "playing the man and not the ball". In the present case, since the parties are not opposed to the appointment of an independent handwriting expert, this Court in the peculiar facts and circumstances of the case deems it fit and appropriate that opinion of an expert of SFSL/Central Forensic Science Laboratory, Chandigarh (in short `CFSL), which is a Government agency would be necessary to resolve the conflict.

13. In view of above discussion as well as to do substantial justice and in the interests of justice, the impugned order dated 07.05.2013 is set aside, the instant petition is allowed and application moved by the petitionerdefendant for sending the pronote and receipt in dispute for comparison to the SFSL/CFSL is allowed. The trial Court can summon the SFSL/CFSL expert for comparison of the questioned documents i.e. pronote and receipt with standard writing/signature and to check alteration or addition or may direct the authorities of the Laboratory to inspect the pronote and receipt in Court and submit report. The expenses to be assessed by the trial Court for comparison







































































 of the pronote and receipt in dispute shall be borne by the petitionerdefendant.

14. Before parting with this order, it would be appropriate to mention that often a court is faced with conflicting opinions given by handwriting experts. The spirit of Sections 45 and 47 of the Act is that the expert whose opinion is sought on a questioned document, should indeed be an expert/skilled person in the field concerned. In Indian Courts, the procedure is adversarial as opposed to the inquisitorial. The role of a Judge is to preside over the proceedings and rule on the points of law. The expert's overriding duty is to the Court, not to who call him. The opinion of the expert is very important and the court has to determine the lis keeping in view his opinion. Any lapse or mistake due to lack of skill by the expert can lead to grave and manifest injustice to a party.

Keeping this in view, this Court is of the opinion that since the opinions of handwriting and fingerprint expert who examine the questioned documents, thumb impressions, signatures, forged documents etc. is very important and has a direct bearing on the credibility of evidence. The need of hour is to control, regulate, certify, accredit and devise means for registering expert witnesses who appear in Courts.







































































 experts or forensic questioned documents examiners, who are qualified and skilled to practice this profession on full time basis. The State Governments should check their qualifications and credentials and confirm their credibility in this field. A register of such practitioners should be drawn and rules be framed. A Code of ethics and conduct for their working should also be framed. Besides this, regulatory authority comprising of qualified concerned registered professionals and others related to field be also established to deal with the situations where there are conflicting opinions of experts and the consensus opinion of the Board of experts under the supervision of expert regulatory authority should be binding on the contesting parties.

   

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"7. The defence of the petitioner is that the cheque in question was a security cheque which was misused by the complainant. He thus, wants to submit that the hand writing on the cheque leave was not his and in order to substantiate the said defence the present application has been moved. It has further come on record that earlier the complainant moved an application seeking permission to examine the hand writing expert for comparison of signatures of the accused. In the said application, the accused had taken a positive stand "that the signatures may kindly be ordered to be compared through FSL, Madhuban (government agency) as private expert tend to favour party calling the said expert."

8. It is admitted position that the said application was allowed. The private expert was examined by the complainant though the expert was crossexamined at







































































 length and that too with the aid of hand writing expert by the accused.

9. As per settled law, doors cannot be closed on the face of the accused. He has a right to prove his defence. However, keeping in view the conduct of the accused as noticed hereinabove, in order to balance the equities, the application moved by the petitioner is allowed. The impugned order dated 20.7.2022 (Annexure P4) is set aside subject to payment of costs of Rs.50,000/ which shall be paid by the accused to the complainant.

   

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