K.Kanniamma v. S.V.Govindaraju

executed any pronote and further that she received a sum ofRs.20,000/- and Rs.1,20,000/- in the year 1992 from therespondent/plaintiff. In another notice dated 20.05.1995 theappellant/defendant has mentioned about the business and othertransactions between the respondent/plaintiff and theappellant/defendant's husband. The respondent/plaintiff has conveneda panchayat comprising of Muthukrishnan, Muniyandi VilasRamachandran, Paramasivam, Sadiq, Thennai Ganeshan and others andbefore the Panchayators, the appellant/defendant has agreed to paythe amount but has not paid the amount. Therefore, the suit is filedfor recovery of a principal sum of Rs.4,00,000/- and an interest sumof Rs.1,08,000/- (for the period from 04.9.1992 to 03.9.1995 at 9%per annum for Rs.4,00,000/-) totalling in all a sum of Rs.5,08,000/-together with interest at 9% per annum from the date of filing of thesuit and with costs.4.The appellant/defendant in the written statement has taken thepleas that she has no debts to discharge and not in requirement ofany amount to run the hotel business and further that she has notexecuted the pronote and has not received the sum of Rs.4,00,000/-from the respondent/ plaintiff and that suit pronote is a forgeddocument not a true and genuine one and moreover, the signature ofthe appellant/defendant in the suit pronote is not that of her andthat she has not affixed a signature in the suit pronote and inasmuchas the same is not a valid one, she is not entitled to claim the suitamount etc.5.It is also the stand of the appellant/defendant that therespondent/ plaintiff has no means to pay such a huge amount ofRs.4,00,000/- to her and the fact is that the respondent/plaintiffand her husband Kannan have been running a non-vegetarian hotel aspartners at Hosur and due to some misunderstanding the partnershiphas been desolved in 1987 and the hotel business cannot be continuedand then, her husband Kannan has been running the non-vegetarianhotel in the name of 'Sri Venkateswara Tea Centre' at the nearBangalore Road near the old bus stand and that therespondent/plaintiff has been running a separate non-vegetarian hotelunder the name of 'Poornima' in Hosur Town and that her husbandKannan died on 04.11.1992 and after his demise the appellant and hersons have continued to run the hotel of 'Venkateswara Tea Centre' atthe same place and that she has purchased a house in Survey No.367/1at Mookandavalli Village, Sipcot, Hosur on 29.1.1986 and afterpurchase, she has obtained a loan of Rs.60,000/- from the Co-operative Housing Society and utilising her savings she hasconstructed a terrace house in the building.6.Added further, it is the contention of the appellant /defendant that the respondent/plaintiff's wife has purchased theadjacent site and she has constructed a house therein by obtaining a https://hcservices.ecourts.gov.in/hcservices/ loan and after constructing the said house the appellant at thesuggestion of the respondent/plaintiff has rented it to his brotherin loan and that the appellant and her husband Kannan have beenrepaying the loan to the Co-operative Society in instalments andafter the appellant's husband died on 04.11.1992, his L.I.C. Policywhich has been given to the housing society as security has beenrealised and an amount of Rs.53,000/- therefrom has been credited tothe Co-operative Housing Society and that the appellant's loan hasbeen cleared and subsequently, the appellant has been requesting therespondent/plaintiff to get the house vacated from his brother-in-lawAnbazhagan and that the respondent/plaintiff and his brother-in-lawhave been postponing to do the same and in January 1994 therespondent/plaintiff wanted the appellant/defendant to sell the saidhouse to him and a sale price has been fixed at Rs.2,60,000/- in thepresence of Kumaresan, Anvar Bai, Muniappan and others and therespondent/plaintiff has paid a total sum of Rs.2,00,000/- to theappellant/defendant towards the sale price of the said house and on13.06.1994 he has prepared a document and without reading out thecontents has obtained an appellant's signatures and registered thesame and later the appellant has come to know that the said documenthas been executed for Rs.30,000/- that to in respect of the sitealone and not the building and later the appellant has been demandingthe respondent/plaintiff to pay a sum of Rs.60,000/- to her throughmediators Muthukali, Auditor, Kumaresan and others and inspite of thedemand the respondent/plaintiff has not paid the said sum ofRs.60,000/- to the appellant/defendant and cheated her of the saidsum and to wreck vengence on the appellant/defendant, therespondent/plaintiff appears to have fabricated the suit pronoteshowing as if the appellant has borrowed a sum of Rs.4,00,000/- fromhim. 7.Apart from the above, when the respondent/plaintiff and theappellant/defendant's husband Kannan have been running the hotelbusiness and got separated, accounts have been taken and it has beenfound that the respondent /plaintiff has to owe a sum ofRs.1,40,000/- to the appellant's husband Kannan and further that therespondent/ plaintiff has not paid the sum of Rs.1,40,000/- to theappellant/defendant's husband Kannan and only in October 1991 whenthe appellant's husband has fallen sick and has been admitted inMeerabai Nursing Home, Hosur, the respondent/plaintiff has paid a sumof Rs.20,000/- and he has to pay a balance of Rs.1,20,000/- and inJuly 1992 he has paid the said sum of Rs.1,20,000/- and other thanthe transaction in regard to the sale of the said house, there hasbeen no other transactions between the respondent/ plaintiff and theappellant/defendant and after the appellant's husband's death on04.11.1992, taking advantage of the fact that the appellant/defendantis a young widow without any help etc., the respondent/plaintiff hasbeen trying to get her under his control for which the appellant hasnot been willing and therefore, the appellant has been demanding the https://hcservices.ecourts.gov.in/hcservices/ respondent/plaintiff to pay the balance of sale consideration ofRs.60,000/- for the sale of her house and therefore, therespondent/plaintiff has forged and fabricated the suit pronote andin fact, there has been no occasion for the appellant/defendantborrow a sum of Rs.4,00,000/- in September 1992 and moreover, therespondent/plaintiff has no means to pay Rs.4,00,000/-. 8.A plea has also been taken on the side of theappellant/defendant that the suit pronote is not supported byconsideration and that the respondent/plaintiff cannot enforce thesame. Besides this, there has been no Panchayat and theappellant/defendant never appear before the Panchayators at any timeand she has never agreed to pay the amount in instalments and in anyevent, the Panchayators have not mediated nor held any Panchayat.9.Before the trial Court, on the side of respondent/ plaintiffwitnesses P.W.1 to P.W.3 have been examined and Exs.A.1 to A.8 havebeen marked. On the side of appellant/ defendant witnesses D.W.1 andD.W.2 have been examined and Exs.B.1 to B.8 have been marked. AlsoExs.C.1 to C.3 have been marked.10.The trial Court has framed in all four issues fordetermination of the case. The trial Court on an appreciation of oraland documentary evidence available on record has come to theresultant conclusion that the respondent/plaintiff is entitled to thedecree has prayed for with costs and accordingly, passed a decree. 11.The points that arise for determination in this appeal are:1.Whether the appellant/defendant has executed the Ex.A.1pronote dated 04.09.1992 in favour of the respondent/plaintiff onreceipt of consideration of Rs.4,00,000/- together with interest at18% per annum?2.Whether the suit pronote Ex.A.1 dated 04.09.1992 is aconcocted one?3.Whether the respondent/plaintiff is entitled to claim thesuit amount as prayed for?12.Finding on Point Nos.1 to 3:According to the learned counsel for theappellant/defendant, the trial Court has not taken note of thediscrepancies in the deposition of P.W.1 to P.W.3 in regard to thealleged execution of Ex.A.1 suit pronote by the respondent/plaintiffand further the trial Court has not considered the admission made byP.W.1/plaintiff that he has no means to lend a sum of Rs.4,00,000/-in a proper perspective and added further, the trial Court has notappreciated the appellant/defendant producing the accounts in respectof the partnership hotel business in the name of Venkateswara done bythe appellant/defendant's husband and the respondent/plaintiff and https://hcservices.ecourts.gov.in/hcservices/ the writing are in the name of respondent/plaintiff and as a matterof fact, the P.W.1/plaintiff in his cross examination has admittedthat Ex.B.1 dated 28.07.1989 is in his own handwriting whichprobablises the case of the appellant and further the P.W.1 hasadmitted that the house has been sold by the appellant/defendant tothe respondent/ plaintiff for a sum of Rs.2,60,000/- which alsoprobablises the case of the appellant/defendant that when theappellant/defendant has requested the respondent/plaintiff to pay thebalance of Rs.60,000/- out of Rs.2,60,000/- and therefore, therespondent/plaintiff has got angry with a malafide intention hasfabricated the Ex.A.1 suit pronote and has filed the recovery of thesuit amount and these aspects have not been looked into by the trialCourt in a proper manner and if really the respondent/plaintiff haslent a sum of Rs.4,00,000/- to the husband of the appellant then therespondent/plaintiff ought to have obtained the signature of thehusband of the appellant in the pronote and not from theappellant/defendant alone or the respondent/plaintiff should haveobtained the signature of the appellant/defendant and also herhusband Kannan and not from the appellant/defendant alone and alsothat the P.W.1/plaintiff has made an admission that it is only theappellant/defendant's husband has demanded the amount and therefore,the case of the respondent/plaintiff as if he has obtained thesignature of the appellant/defendant alone in regard to the purportedloan transaction is an unnatural one and in short, there is no clearcut evidence in regard to the date and time of execution of suitpromissory note and in the absence of any evidence that theappellant/ defendant has required any amount from the respondent/plaintiff as on 04.9.1992 then the trial Court ought not to havebelieved the execution of pronote and indeed Exs.B.5 and B.6 BankPassbooks of the appellant have not been appreciated by the trialCourt properly and moreover, the trial Court has committed an errorin rejecting the evidence of D.W.2 the handwriting Expert and thecross examination of D.W.2 an Expert indicates that therespondent/plaintiff has challenged the deposition expert only inregard to subject signature and the trial Court has not not takenjudicial note that D.W.2 is a well known handwriting expert who hastendered evidence in various Courts in Tamil Nadu for the past threedecades and after rejecting the evidence of D.W.2 expert, the trialcourt has taken the role of an expert to come to a wrong conclusionthat the signature in Ex.A.1 pronote is that of theappellant/defendant by means of comparison of the same with thesignatures of the defendant in Exs.A.6 and A.8 and the trial Courthas not considered the legal bar under the I.T. Act for having ittransaction in cash if the same is Rs.20,000/- and therefore, praysfor allowing the appeal in the interest of justice. 13.Contending contra, the learned counsel for the respondentsubmits that the trial Court has come to the conclusion that theEx.A.1 suit pronote has been supported by a due consideration and the https://hcservices.ecourts.gov.in/hcservices/ same has been executed by the appellant/defendant and in fact thetrial Court has compared the signature found in Ex.A.1 with that ofthe admitted signatures of the appellant/defendant in Exs.A.6 and A.8and in law the trial Court is empowered to compare the signatureswith its own eyes and that the trial Court has considered all thematerials in the case and therefore, the appeal preferred by theappellant has to be dismissed by this Court to promote substantialcause of justice.14.It is useful to refer to the evidence of P.W.1/ plaintiff whohas deposed that the appellant/defendant's husband has worked alongwith him at Bangalore earlier and that he has lent a sum ofRs.4,00,000/- to the appellant/ defendant on 04.9.1992 for which theappellant has executed Ex.A.1 pronote and that the said pronote hasbeen written in his house by one Jayaprakash and that the appellant/defendant's husband has brought the witnesses Ramachandran andParamasivam and that the witnesses have signed the appellant affixinga signature in the pronote and further that the appellant has alsoseen the witnesses signing in the pronote and the appellant/defendanthas asked for the amount from him with a view to purchase a placenear the appellant's house and at that time the appellant and herhusband have been present and after the receipt of money two monthslater the appellant's husband has expired and in 1993 the appellanthas purchased that place and that the witnesses in Ex.A.1 pronote arein Hosur and that the Jayaprakash who wrote the pronote has expiredand that the appellant/defendant has obtained a loan for laying thefoundation to her house and the same has been discharged as perEx.A.6 and since the appellant's husband is a friend to him, he hasclaimed only an interest of 9% per annum even though the agreed rateof interest is at 18% per annum.15.It is the evidence of P.W.1 (during his cross examination)that he has written Ex.B.1 and the house value is mentioned asRs.2.75 lakhs and a sum of Rs.15,000/- has been deducted and thebalance of Rs.2.60 lakhs has been returned and he has not asked theappellant's husband to jointly execute the pronote along with theappellant and further he has not obtained the witness signature ofthe appellant's deceased husband Kannan and no Panchayat has beenconvened requiring him to pay a sum of Rs.60,000/- to theappellant/defendant and that the write of the pronote Jayajprakash onenquiry is said to have died in the year 1996 and the appellant'shusband is the family head and the appellant has come along with herhusband Kannan at the time of asking for the money of Rs.4,00,000/-in connection with the shop expense and towards purchase of the houseand she has asked the same one month prior execution of the pronoteand that he has received a sum of Rs.10,00,000/- in 1992 by sellingthe land and it is in correct to state that the signature in Ex.A.1is not that of the appellant etc. https://hcservices.ecourts.gov.in/hcservices/

16.P.W.2 has deposed that in Ex.A.1 the signature of theappellant is found and that he has also signed in the pronote andwitness Ramachandran has also signed and further the pronote writerhas also signed and he along with Ramachandran (another witness) hasseen the appellant affixing a signature in the pronote and theappellant has seen him when he has signed in the pronote and that therespondent/plaintiff has given the amount to the appellant's husbandand in Muthukrishnan's building a Panchayat has taken place in whichMuthukrishnan, Nandiswaran, Sadiq and himself have participated andin the Panchayat the appellant has agreed to pay the amount. 17.P.W.3 in his evidence has stated that during the month ofSeptember 1992 the appellant's husband Kannan has come and informedhim that towards purchase of land he has to receive money from therespondent/plaintiff and the appellant's husband has received theamount from the respondent/plaintiff and the appellant's husband atfirst has gone to the house of respondent/plaintiff and later he,Paramasivam and Jayaprakash has gone to the house ofrespondent/plaintiff and in the respondent/plaintiff's house, therespondent/ plaintiff, appellant/defendant and her husband Kannanhave been present and the pronote has been written by Jayaprakash asdirected by the appellant's husband Kannan in which the appellant hassigned and he has seen the same and also that Paramasivam has signedand later he has signed and moreover, the pronote writer has alsosigned and the signature of K.Kanniamma in the pronote is written byher and that the respondent/plaintiff has given the money to theappellant's husband at that time the appellant has been present nearher husband Kannan and the rate of interest has been mentioned by thesaid Kannan and that the appellant and her husband after receivingthe money have gone away and in Panchayat the amount has not beensettled.18.D.W.1/appellant in her evidence has stated that she has notreceived any amount from the respondent/plaintiff and it is notcorrect to state that she has received consideration in the presenceof witnesses Ramakrishnan, Paramasivam and executed a pronote and herhusband Kannan has not been present at the time of execution ofpronote and therefore, the pronote has been a fabricated one andmoreover, the respondent/plaintiff has no means to lend a sum ofRs.4,00,000/- in one lumpsum.19.The evidence of D.W.2 is to the effect that in the year 1996at Mukkonda Palli Village she has purchased a house site and at thattime the respondent/plaintiff also has purchased a house site nearher house site and she has obtained a loan of Rs.60,000/- from theCo-operative Housing Society and finished construction of the housein the year 1986 and at that time the respondent/plaintiff has alsoconstructed a house and occupied the same and in her house she https://hcservices.ecourts.gov.in/hcservices/ inducted a tenant Anbazhagan, the respondent/ plaintiff's relativeand she has discharged a loan of Rs.60,000/- with the buildingsociety from and out of the policy amount she has received and shehas received from Chettiar a sum of Rs.50,000/- as loan forconstructing a house and she has also to pay a sum of Rs.50,000/- tothe Canara Bank and therefore, to discharge the said loans in theyear 1989 she indulged in sale tax for selling her house forconsideration of Rs.2,65,000/- and in connection with the same therespondent/plaintiff has given Ex.A.2 chit and she has not sold herhouse to the respondent/ plaintiff and she has sold the said house inthe year 1994 to the respondent/plaintiff, in the name of respondent/plaintiff's wife's name as per Ex.A.7 and in Ex.A.7 it is mentionedas house site which is not correct and she has been asking therespondent/plaintiff to pay the amount of Rs.60,000/- due to her andwhen her husband has been under treatment in Meerabai Hospital atthat time the respondent/plaintiff has given her a sum of Rs.20,000/-and in July 1992 he has paid her a sum of Rs.1,20,000/-.20.D.W.1 in her cross examination has stated that she knowsEnglish to put a signature only and that she cannot read English andthe signature in Ex.A.6 and A.8 are not in same fashion and after thedeath of her husband the respondent/plaintiff has compelled her tocome under his control and during the year 1993 therespondent/plaintiff has to give her a sum of Rs.60,000/-.21.D.W.2 (Handwriting and Finger Print Expert) in her evidencehas deposed that she is a Handwriting and Finger Print Expert with anexperience of 28 years and that she has received training from herfather who has also done the same and she has taken a photo of thesignature found in Ex.A.1 suit pronote and she has also taken photosof the admitted signatures in Exs.A.6 and A.7 and also that she hasreceived the sample signatures sent from the Court and the samplessent from the Court is Ex.C.1 and the disputed signature in Ex.A.1when compared with that of the admitted signatures has not beensigned by the appellant and therefore, the signature in the disputeddocument is a forged one and the report is Ex.C.3 and the signaturesin S.1 to S.16 as Kanniamma has not signed the signature in Ex.A.1. 22.The trial Court in para 10 of its judgment has opined that'D.W.2 (Expert) has not stated that basically she has expertknowledge and therefore, she cannot be construed as a handwritingexpert and further that the Ex.A.1 pronote has been proved as per theevidence of P.W.2 and P.W.3 and moreover, the admitted signatures ofthe appellant/defendant when compared with the signature of Ex.A.1pronote with that of the signature of the appellant in otherdocuments since the aforesaid signatures have been affixed with aninterval of few years the signature of the appellant/defendant inEx.A.1, A.6 and A.8 has been signed by the same person viz., theappellant/defendant and decided accordingly.' At this stage, the https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the appellant contends that D.W.2 (HandwritingExpert) has 28 years of experience in the handwriting and fingerprint field and that she has taken training from her father who hasalso practised the same avocation and therefore, the observation ofthe trial Court that D.W.2 has not stated that she is in possessionof expert knowledge is incorrect one in the eye of law. Addedfurther, it is the submission of the learned counsel for theappellant/ defendant that no suggestion has been put to D.W.2 Expertthat she is not a competent handwriting expert and her veracity ofevidence has not been suspected and in fact, D.W.2 the Expert in areport in Ex.C.3 has come to the categorical conclusion that thedisputed signature D has been compared with that of the admitted andspecimen signatures S.1 to S.16 mentioned in the report and oncomparison the disputed signature shows signs of forgery and thisevidence of the D.W.2 ought to have been taken note of by the trialCourt and moreover, the trial Court should have dismissed the suitafter holding that the suit pronote is a forged one, but the same hasnot been resorted to by the trial Court and therefore, the view ofthe trial Court in this regard has to be corrected by this Court.23.In support of his contention that D.W.2 Expert's evidenceought to have been taken into account by the trial Court whiledeciding the case, the learned counsel for the appellant cites thedecision of Hon'ble Supreme Court in State of Maharashtra V. SukhdeoSingh and another AIR 1992 Supreme Court 2100 wherein it is interalia held as follows:"A handwriting expert is a competent witness whoseopinion evidence is recognised as relevant underthe provisions of the Evidence Act and has notbeen equated to the class of evidence of anaccomplice. It would, therefore not be fair toapproach the opinion evidence with suspicion butthe correct approach would be to weigh the reasonson which it is based. The quality of his opinionwould depend on the soundness of the reasons onwhich it is founded. But the court cannot affordto overlook the fact that the science ofidentification of handwriting is an imperfect andfrail one as compared to the science ofidentification of finger-prints; courts have,therefore, been wary in placing implicit relianceon such opinion evidence and have looked forcorroboration but that is not to say that it is arule of prudence of general application regardlessof the circumstances of the case and the qualityof expert evidence. No hard and fast rule can belaid down in this behalf but the court has todecide in each case on its own merits what weightit should attach to the opinion of the expert. In https://hcservices.ecourts.gov.in/hcservices/ the instant case the opinion evidence ofhandwriting expert was not so high as to commendacceptance without corroboration."24.He also seeks in aid of the decision of Hon'ble Supreme Courtin Fakhruddin V. State of Madhya Pradesh 1967 MLJ at page 925 and 926whereby it is observed as follows:"Evidence of the identity of handwriting canbe adduced in one of three ways. Proof of awriting by the admission of the writer or by theevidence of some one in whose presence he wrote iscalled direct evidence and is the best method ofproof and if such evidence is available evidenceof any other kind becomes unnecessary. But thelaw makes relevant two other modes. A writing maybe proved to be in the handwriting of a particularindividual by the evidence of persons familiarwith the handwriting of that individual (section47) or by the testimony of an expert (section 45).A third method (section 73) is comparison by theCourt with a writing made in the presence of thecourt or admitted or proved to be the writing ofthe person. Both under sections 45 and 47 of theEvidence Act the evidence is an opinion, in theone case by scientific comparison and in the otherby familiarity resulting from frequent observationand experience. In either case the Court mustsatisfy itself by such means as are open that theopinion may be acted upon. One such means open tothe Court is to apply its own observation to theadmitted or proved writing and to compare thenwith the disputed ones in order to satisfy itselfon its own observation whether it is safe toaccept the opinion of the expert or otherwitnesses. Thus in such cases the Court is notitself playing the role of an expert but is onlycoming to its own conclusion, with the assistanceof the expert, whether it can safely be held thatthe two writings are by the same person. (In the instant case the supreme court itselfsent for the different writings to verify by itsown observation whether the conclusions of thehandwriting expert were proper or not)"25.Continuing further, he draws the attention of this Court tothe decision of Hon'ble Supreme Court in Murarilal V. State of MadhyaPradesh AIR 1980 Supreme Court 531 at page 532 wherein it is laiddown as follows: https://hcservices.ecourts.gov.in/hcservices/ "There is no rule of law, nor any rule ofprudence which has crystallised into a rule oflaw, that opinion evidence of a handwriting expertmust never be acted upon, unless substantiallycorroborated. But, having due regard to theimperfect nature of the science of identificationof handwriting, the approach should be one ofcaution. Reasons for the opinion must becarefully probed and examined. All otherrelevant evidence must be considered. Inappropriate cases, corroboration may be sought.In cases, where the reasons for the opinion areconvincing and there is no reliable evidencethrowing a doubt, the uncorroborated testimony ofa handwriting expert may be accepted. Therecannot be any inflexible rule on a matter which inthe ultimate analysis, is no more than a questionof testimonial weight."26.Also he cites the decision of Hon'ble Supreme Court inO.Bharathan V. K.Sudhakaran AIR 1996 Supreme Court 1140 wherein it isamong other things held that 'comparing of disputed signatures oncounterfoils by High Court Judge without aid of expert or personconversant with disputed signatures is illegal.'27.Per contra, the learned counsel for the respondent submitsthat D.W.2 though she has 28 years experience in the field ofhandwriting and finger print and further that she has undergonetraining with her father yet she is not possessing the qualificationof an Expert and therefore, rightly the trial Court has notconsidered. D.W.2 as an Handwriting and Finger Print Expert.28.It is to be noted that a Court of law ought not to blindlyaccept a report of an expert. Admittedly, an opinion of handwritingExpert is not conclusive but it cannot be brushed aside so lightly.No wonder, the ingredients of Section 45 of the Indian Evidence Actdo not say that an Expert must hold an academic degree or belong to aparticular profession. However, a specialised knowledge or experienceacquired will suffice in the considered opinion of this Court. It isto be borne in mind that an evidence of an Expert is only an opinionand cannot take the place of substantive evidence, unlesscorroborated by a direct or circumstantial evidence. Also it is opento a Court of law to prefer the evidence of one Expert to that ofanother and moreover, it will not be improper to act on an opinion ofone Expert, although it is contradicted by another Expert. No doubt,an Expert evidence must be received with caution a conclusion basedon mere handwriting is generally indecisive. An handwriting Expertopinion like any other Expert opinion must be given weight and https://hcservices.ecourts.gov.in/hcservices/ considered when it is corroborated by other evidence.29.In Ex.C.3 opinion report dated 27.8.1998 of D.W.2-Expert, itis mentioned as follows:"I have carefully examined the admitted and specimensignatures of the Defendant K. Kanniamma.In the mortgage deed marked as S1, S2, S3, S4 signatures inthe registered document as S5, S6 in the other registereddocument as S7, S8, specimen and admitted signatures arecompared inter se.Admitted signatures S1 to S4 are made in the year 1986,signatures S5 to S8 in the year 1994, specimen signaturesin the year 1998.The disputed signature in the year 1992.The disputed signature is carefully examined and marked asD.The disputed signature D is made in the revenue stamps.The disputed signature D, admitted and specimen signaturesS1 to S6 are photographed and enlarged the same. Enlargedphotographs are herewith enclosed.On inter se comparison of the admitted and specimensignatures S1 to S16 shows that there is fluency in thesignatures marked S5 to S16 due to lapse of time.The disputed signature D is compared with that of theadmitted and specimen signatures S1 to S16.On comparison the disputed signature shows signs offorgery.There is drawn and unnatural movement in D.There is no freedom of movement in D.The signature D is made slowly and consciously.There is hesitation in D.The pictorial appearance of D is different from that of S1to S4.In the signer D the individuals characteristic differs fromthat of S1 to S4. https://hcservices.ecourts.gov.in/hcservices/ There are calligraphic differences in D with that of S1 toS16.There are significant differences in D with that of S1 toS16.In the initial letter 'K' the initial stroke is straight inD but slanting in S1 to S16.In the initial letter 'K' there is penlift at the rightside stroke in D but not so in S1 to S16.The length of the initial stroke is shorter in D then thelength in S1 to S16.The ending stroke of the letter 'K' ends blunt in D but notso in S1 to S16.In the letter 'K' (K in the signature) the right sidestroke is longer than the left side stroke then thesignatures S1 to S16.In the letter 'a' there is a pen lift at the ending strokein D but not so in S1 to S16.The formation of the letter 'n' (both 'n') in D differsfrom that of S1 to S16.In the letter 'r' there is retraceing in D but not so in S1to S16.In the letter 'a' there is a bend the left side in D butnot so in S1 to S16.In the letter 'a' the ending stroke ends blunt in D but notso in S1 to S16.In the letter 'm' the formation in D differs from that ofS1 to S16.In the letter 'm' the right side stroke is a curve D butnot so in S1 to S16.In the letter 'a' there is a tremor in the ending strokebut not so in S1 to S16.The signature D is a freehand forgery.For the above said reasons, I am of the opinion that the https://hcservices.ecourts.gov.in/hcservices/ signature D is not made by the person who made the admittedand specimen signatures S1 to S16 namely K. Kanniamma." Signed (EXPERT)"30.This Court recalls the decision in Devaraju Padayachi V.Sivasanakara Padayachi (2004) 4 M.L.J. at page 604 at 605 wherein itis observed that 'in cases where signatures in a document aredisputed, expert opinion will give much more clarity for arriving ata decision upon the truth and genuineness on the disputed document.'31.In another decision of this Court in Venkatalakshmiah V.Venkatappa and another AIR 1991 Madras 399 it is held as follows:"It is not essential that the handwritingexpert must be examined to prove or disprove awriting and that the Court is competent tocompare the disputed writing with an admittedwriting. But that does not mean that in no case,the Court can allow a party to establish his caseby having the disputed handwriting examined by aHandwriting Expert. May be the Court can also dothe comparison of the disputed signature with anyadmitted signature and arrive at a decision inthat regard. But, when the defendants choose tohave the benefits of the Handwriting Expert alsoto prove their case, they cannot be preventedunless their attempt is very much belated or withany ulterior motive, particularly so, if theattestor has gone to the extent of disposing thatthe signatures found in his Vakalat and plaintare not his."32.In the decision in M.Molayappa Gounder V. M.Subramanian(2007) 6 MLJ 1014 at 1015 it is laid down as follows:"When the opinion of the handwriting expert, whichis done is a scientific manner, is adverse to theplaintiff in the suit for recovery of money on thebasis of a promissory note and the evidence of theattesting witness also does not support the caseof the plaintiff, then the suit is liable to bedismissed."33.In the decision D.Pandi V. The Dhanalakshmi Bank Limited byits Manager, Madras (2001) 1 MLJ at page 750 at page 751 it is heldas follows: https://hcservices.ecourts.gov.in/hcservices/ "It is true that in order to find out thegenuineness of the signature, it is but proper forthe Court to get the opinion of the expert.However, the court is of the view that Sec.73enables the Court to compare the disputedsignature with the other admitted or provedsignature. No doubt, the Court can also direct theconcerned person present in the Court to writeany words or figures for the purpose of enablingthe Court to compare the words or figures for thepurpose of enabling the Court to compare the wordsor figures so written with any words or figuresalleged to have been written by such person. [Para. 13]It is clear that though, normally the Court shouldnot take upon itself the responsibility ofcomparing the disputed signature with that of theadmitted signature, undoubtedly the Court iscompetent to compare the disputed signature withthe admitted signature in view of Sec.73 of theAct. However, if the Court has any doubt, it isincumbent on it to leave the matter to the opinionof an expert. The learned counsel for theappellant has contended that P.W.1 is not familiarwith the signature of the 2nd defendant. Therequirement of Sec.67 of the Act is only thathandwriting of a person must be proved to be hishandwriting. In order to prove the identity ofthe handwriting any mode not forbidden by law canbe resorted to. Two modes are indicated by law inSecs45 and 47 of the Act. Sec.45 permits expertopinion to be regarded as relevant evidence andSec.47 permits opinion of any person acquaintedwith such handwriting to be regarded as relevantevidence." 34.In (2000) II MLJ at page 154 Jabirunnisa Bi V. Kasi Naickerthis Court has held that 'Court cannot compare the signatures andcomparison to be made on the basis of admitted signatures.'35.It is apt for this Court to point out the decision in G.VasuV. Syed Yassen Sifuddin Quadri AIR 1987 Andra Pradesh 139 at page 148and 149 it is observed as follows:"... where in a suit on a promissory note,the case of the defendant as to the circumstancesunder which the promissory note was executed isnot accepted, it is open to the defendant to https://hcservices.ecourts.gov.in/hcservices/ prove that the case set up by the plaintiff onthe basis of the recitals in the promissory note,or the case set up in suit notice or in theplaint is not true and rebut the presumptionunder S.118 by showing a preponderance ofprobabilities in his favour and against theplaintiff. He need not lead evidence on allconceivable modes of consideration forestablishing that the promissory note is notsupported by any consideration whatsoever. Thewords 'until the contrary is proved 'in S. 118 donot mean that the defendant must necessarily showthat the document is not supported by any form ofconsideration but the defendant has the option toask the Court to consider the non-existence ofconsideration so probable that a prudent manought, under the circumstances of the case, toact upon the supposition that consideration didnot exist. Though the evidential burden isinitially placed on the defendant by virtue ofS.118 it can be rebutted by the defendant byshowing a preponderance of probabilities thatsuch consideration as stated in the pronote, orin the suit notice or in the plaint does notexist and once the presumption is so rebutted,the said presumption 'disappears'. For thepurpose of rebutting the initial evidentialburden, the defendant can rely on direct evidenceor circumstantial evidence or on presumptions oflaw or fact. Once such convicting rebuttalevidence is adduced and accepted by the court,having regard to all the circumstances of thecase and the preponderance of probabilities, theevidential burden shifts back to the plaintiffwho has also the legal burden. Thereafter, thepresumption under S.118 does not again come tothe plaintiff's rescue. Once both parties haveadduced evidence, the Court has to consider thesame and the burden of proof loses all itsimportance..... merely because of the plaintiff comesforward with a case different from the onementioned in the promissory note it will not becorrect to say that the presumption under S.118does not apply at all. In our view thepresumption applies once the execution of thepromissory note is accepted by the defendant butthe circumstance that the plaintiff's case is at https://hcservices.ecourts.gov.in/hcservices/ variance with the one contained in the promissorynote or the notice can be relied upon by thedefendant for the purpose of rebutting thepresumption and shifting the evidential burden tothe plaintiff who has also the legal burden. Tothe above extent, we agree with the view of theBombay High Court in Tarmahomed's case, (AIR 1949Bom 257) (supra). Our dissent is only to theextent of the principle laid down in that casethat even when the case of the plaintiff and thatof the defendant is disbelieved still the suit isto be decreed on the basis of the presumptionunder S.118 of the Negotiable Instruments Act."36.Be that as it may, the term 'Expert' has been indirectlydefined as 'persons specially skilled' in foreign law, science or artor in question as to identity of handwriting or finger impressions.It is not out of place for this Court to point out that in thedecision Sri Chand Batra V. State of Uttar Pradesh AIR 1974 SC 639the Hon'ble Supreme Court has held that 'an Exercise Inspector whohas put in 21 years service as such and had tested lacs of samples ofliquor could be treated as an Expert within the meaning of Section 45of the Indian Evidence Act. Indeed, Article 49 of Stephen's Digestruns as follows: 'when there is a question as to any point of science orart, the opinions upon that point of persons speciallyskilled in any such matter are deemed to be relevantfacts.'Such persons are hereinafter called Experts. As a matter of fact, thewords 'science or art' include all subjects on which a course ofspecial study or experience is necessary to the formation of anopinion, and amongst others the examination of handwriting.37.It is needless to state that an Expert is one who hasacquired special skill or knowledge or experience in any branch ofscience, trade, art or profession. This Court recalls theobservations made in the decision U.S. Shipping Board V. St. AlbansAIR 1931 PC 189 whereunder it is held that 'a person can be acceptedas an Expert if he has made a special study of the subject oracquired a special experience therein.' After all, a Court oflaw/Judge has to decide where an individual propose to be an Expertis really so taking into account his skill, special study andexperience. He may not have acquired the same professionally (In reOil 1976 Crl.J 1339). However, one can acquire expert knowledge in aparticular sphere through repeated contact with it in the course ofone's work not withstanding that the expertise is covered fromexperience and not from formal training as per decision R V. Murphy(1980) 1 QB 434. All the attending circumstances will have to beborne in mind before the opinion of any Expert is accepted. Opinion https://hcservices.ecourts.gov.in/hcservices/ of other of the two Experts ought not to be preferred based onconjectural reasons. But if the difference between the two experts ispurely of scientific character, a Court of law before accepting one,must characterise the other as partial after assigning scientificreasons as held in F. Hector V. R AIR 1937 All 182. It is always opento a Court/Judge to prefer the evidence of one Expert to that ofanother and it would not be improper to act on the opinion of oneExpert although it is contradicted by another Expert as laid down inJoyce V. Yeomars (1981) 1 W.L.R. 549.38.It is true that an Expert witness in an adversary litigationcan furnish information to the Judge on matters calling forexpertise, in the considered opinion of this Court. It is useful torefer to the decision of Hon'ble Supreme Court between State (DelhiAdministration) V. Pali Ram AIR 1979 SC 14 whereunder it is held asfollows:'It is not the province of the expert to act asJudge or Jury. The real function of the expert isto put before the Court all the materials,together with reasons which induce him to come tothe conclusion, so that the Court, although not anexpert, may from its own judgment by its ownobservation of those materials. Ordinarily, it isnot proper for the Court to ask the expert to givehis finding upon any of the issues, whether of lawor fact, because, strictly speaking, such issuesare for the Court or jury to determine. Thehandwriting expert's function is to opine after ascientific comparison of the disputed writing withthe proved or admitted writing with regard to thepoints of similarity and dissimilarity in the twosets of writings. The Court should then comparethe handwritings with its own eyes for a properassessment of the value of the total evidence.'When the evidence of handwriting expert is not corroborated, theCourt can furnish corroboration by comparing the handwriting and cometo a conclusion, in the considered opinion of this Court. When anExpert opinion is given, it is the paramount duty of the Court to seefor itself and with the assistance of an Expert come to its ownconclusion whether it can safely be held that the two writings are bythe same person. The handwriting expert's function is to opine afterscientific comparison of the disputed writing with the proved oradmitted writing in regard to the points of similarity anddissimilarity in the two sets of writing, the Court must then comparethe handwriting with its own eyes for a proper assessment of thevalue of the total evidence. https://hcservices.ecourts.gov.in/hcservices/

39.Suffice it to point out that the opinion of HandwritingExpert may be relied upon along with various items of external andinternal evidence pertaining to a document in issue. Notwithstandingthe fact that there is no legal bar to a Judge employing his own eyeto compare the disputed writing with the admitted writing, evenwithout the aid of the evidence of any Handwriting Expert, the Judgemust as a matter of prudence and caution hesitate to cement hisfindings in regard to the identity of handwriting and as such, it isnot advisable that a Judge who take upon himself the task ofcomparing the admitted writing with the disputed one in order to findout whether the two agree with each other and prudent course is toget the opinion and assistance of an Expert.40.As far as the present case is concerned, the observation ofthe trial Court in its judgment in Para 10 to that effect that 'D.W.2(Expert) has not stated that basically she has expert Knowledge andtherefore, she cannot be construed as an Expert' and this observationis per se an incorrect one, in the eye of law, in the consideredopinion of this Court since D.W.2 has acquired 28 years experience inthe field of identifying handwriting and finger impressions andtherefore, she can safely be treated as an Expert because of thesimple fact that she has acquired a special skill in issues as to theidentity of handwriting or finger impressions and to offer heropinion in this regard. 41.Besides this, D.W.2 in her Ex.C.3 report has opined that 'theSignature D is a free hand forgery' and therefore, in such a contextthis Court opines that as a matter of prudent course, therespondent/plaintiff should have taken steps for appointment of anExpert on his side or upon his failure in this regard, then the trialCourt should have issued a direction to the respondent/plaintiff toexamine the Expert atleast as a Court witness for comparing thedisputed signature of the appellant/defendant in Ex.A.1 pronote withthat of her admitted signatures and after obtaining the said expertopinion's report ought to have evaluated the evidence of D.W.2 andthe Ex.C.3 report and then must have arrived at a conclusion ofaccepting the one of the two reports after ascribing the scientificreasoning. It is always open to a Court of law to prefer the evidenceof one Expert to that of another one and it is not improper to act onthe opinion of one Expert though that is contradicted by anotherExpert.42.However, such a procedure has not been resorted to in thepresent case on hand. Hence, this Court, without going into themerits of the case, comes to the inevitable conclusion that theappeal deserves to be allowed to prevent an aberration of justice andaccordingly, the same is allowed in the interest of justice andresultantly, the matter is remitted back to the trial Court for https://hcservices.ecourts.gov.in/hcservices/ reconsideration in accordance with law leaving all thepoints/disputes in controversy between the parties open (withoutdetermining the same) and the points are answered accordingly. 43.In fine, the Appeal is allowed. The Judgment and Decree ofthe trial Court dated 28.8.2001 are set aside. The matter is remittedback to the trial Court for reconsideration of thedisputes/controversies (over the subject matter of the suit) inaccordance with the law and the parties are given the liberty toexamine additional witnesses and mark documents if they so desire andthe trial Court shall permit them in this regard. The respondent/plaintiff is directed to take steps by means of filing of anInterlocutory Application before the trial Court within one week fromthe date of receipt of copy of this order praying for appointment ofHandwriting Expert on his side to send/examine the disputed signatureof the appellant/ defendant in Ex.A.1 pronote with that of her provedor admitted signatures and in the event of filing such anapplication, the trial Court shall provide an opportunity to theappellant/defendant to file a counter and then the trial Court is topass orders on merits in the manner known to law. It is open to thetrial Court to fix remuneration for the Expert to be appointed on theside of the respondent/plaintiff. Further, the trial Court afterreceiving the report of the said Expert can also direct him to adduceevidence and also to receive the objection if any to be filed on theside of the appellant/defendant and to decide the subject matter ofsuit on merits and in accordance with law by disposing of the mainsuit within a period of five months from the date of receipt of copyof this order and to report compliance to this Court without fail.Considering the facts and circumstances of the case, the parties aredirected to bear their own costs in this appeal. Consequently,connected miscellaneous petition is closed. Sd/Asst.Registrar/true copy/Sub Asst.Registrarsgl To1.The Subordinate Judge, Hosur. https://hcservices.ecourts.gov.in/hcservices/

2.The Sub Assistant Registrar, Judicial Section, High Court, Madras.(To watch and report)Copy toThe Section Officer,V.R.Section, High Court, Madras1 cc To Mr.R.Margabandhu, Advocate, SR.32223.1 cc To Mr.V.Nocholas, Advocate, SR.31929.A.S.No.50 of 2002 SSN(CO)RVL 06.08.2009