It is essentially within the judicious discretion of the Court,
depending on the individual facts and circumstances of the case
before it, to seek or not to seek expert opinion as to the comparison of
the disputed handwriting/signature with the admitted handwriting/
signature under Section 45 of the Indian Evidence Act, 1872. The
Court is however not barred from sending the disputed handwriting/
signature for comparison to an expert merely because the time gap
between the admitted handwriting/signature and the disputed
handwriting/signature is long. The Court must however endeavour
to impress upon the petitioning party that comparison of disputed
handwritings/signatures with admitted handwritings/signatures,
separated by a time lag of 2 to 3 years, would be desirable so as to
facilitate expert comparison in accordance with satisfactory
standards. That being said, there can be no hard and fast rule about
this aspect and it would ultimately be for the expert concerned to
voice his conclusion as to whether the disputed handwriting/
signature and the admitted handwriting/signature are capable of
comparison for a viable expert opinion. The view expressed by the
Division Bench in JANACHAITANYA HOUSING LIMITED V/s. DIVYA
FINANCIERS1, as to the stage of the proceedings when an application
can be moved by a party under Section 45 of the Indian Evidence Act,
1872, continues to hold the field and there is no necessity for this
Full Bench to address that issue.
HYDERABAD HIGH COURT
CIVIL REVISION PETITION NOS.1500 of 2010
Dated:18-12-2015
Bande Siva Shankara Srinivasa Prasad .. Petitioner
Ravi Surya Prakash Babu and others Respondents
THE HONBLE SRI JUSTICE R. SUBHASH REDDY
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
THE HONBLE SRI JUSTICE SANJAY KUMAR
Citation:AIR 2016 HYD 118(FB)
By order dated 13.08.2010, a learned Judge directed that
C.R.P.Nos.1500 and 1572 of 2010 be placed before a Bench of two or
more Judges for consideration. On 29.09.2010, the Division Bench
that dealt with the matter opined that it should be considered by a
Full Bench. That is how C.R.P.Nos.1500 and 1572 of 2010 along
with connected C.R.P.Nos.4098 and 5008 of 2010 came to be placed
before this Full Bench.
The operative portion of the reference order dated 13.08.2010
of the learned Judge reads as under:
The conspectus of the precedent law as above would
show that some of the learned Judges of this Court have taken
a view that if there is long time gap between the admitted
signature and disputed signature, no purpose would be served
by referring the disputed handwriting/signature to handwriting
expert. Some other learned Judges have taken a view that in
view of scientific advances, the handwriting expert can compare
the admitted and disputed signatures even if there is a long
time gap between them. The inconsistency between the two
line of cases would certainly create a dilemma for the Courts
below. Of late, there is increasing number of suits for recovery
of money based on promissory notes in which invariably
defendants take a plea that suit promissory note is forged or
fabricated. There is also increasing number of instances where
the parties to the proceedings seek indulgence of the Court to
send disputed documents to handwriting expert at a belated
stage. Therefore, in my considered opinion, it would be
appropriate if the matter is adjudicated by larger Bench to
decide the question whether a civil Court is barred from
sending disputed handwriting/signature to handwriting expert
if the time gap between the admitted signature and disputed
signature is very long.
The office is therefore directed to place both the civil
revision petitions before the Honble the Chief Justice for
constituting a Bench of two or more learned Judges for
deciding the question.
In effect, the question referred for decision by the learned
Judge was whether the Court would be barred from sending the
disputed handwriting/signature to an expert if the time gap between
the admitted signature and the disputed signature was very long.
However, the reference order passed thereafter by the Division Bench,
which led to the matter being placed before us, went a step further.
Significantly, the very same learned Judge who had passed the order
dated 13.08.2010 presided over the said Division Bench. It was
brought to the notice of the Division Bench that another Division
Bench of this Court had held in JANACHAITANYA HOUSING
LIMITED V/s. DIVYA FINANCIERS that there can be no set time
limit for filing an application for sending handwriting/signatures for
comparison and expert opinion. This decision was interpreted by the
Division Bench to mean that even if there were no contemporaneous
signatures, an application under Section 45 of the Indian Evidence
Act, 1872 (for brevity, the Act of 1872) could be moved. Referring to
an earlier decision rendered by a learned Judge dating back to the
year 1960 in ANNAPURNAMMA V/s. B.SANKARARAO , which held to
the effect that a belated application would be of no avail if there was
a lapse of time between the admitted signature and the disputed
signature, the Division Bench opined that these two views needed to
be reconciled, though they had no direct relation but had a bearing
on the question referred to the Division Bench. This was the basis
for the reference to a Full Bench.
As the crucial question referred for consideration to this Full
Bench was whether contemporaneity of signatures was an essential
pre-requisite for the Court to direct comparison thereof for expert
opinion, the Full Bench constituted earlier, comprising Honble Sri
Justice G.Raghuram and two of us (RR,J and SK,J), passed a detailed
order on 21.09.2012 soliciting expert opinion through the aegis of the
Central Forensic Science Laboratory, Ramanthapur, Hyderabad, on
three issues. It would be useful to extract this order in its entirety:
The issue referred for consideration of and resolution by
this Bench is: whether a Civil Court may not send a disputed
handwriting/signature to a handwriting expert (under Section
45 of the Evidence Act) if the time gap between the admitted
signature and the disputed signature is very large.
During the course of hearing, we are informed that there
are instances where handwritings or signatures referred for
expert opinion; either the Govt. Examiner of Questioned
Documents or a private expert are being returned to the
referring Court for furnishing contemporaneous
handwritings/signatures. The Judicial precedents placed
before us also do not throw much light on the essential issue
whether a contemporaneity is a non-derogable substrate for
furnishing expert opinion of questioned handwritings/
signatures.
In the circumstances, the following issues are, in our
view relevant to be considered before proceeding to answer the
reference.
a) Are contemporaneous handwritings/signatures always or
normally necessary for comparison and report;
b) What is the meaning of contemporaneous; and what is
the measure of contemporaneity;
c) Why are Examiner of Questioned Documents frequently
returning documents sent to them for opinion, to the
referring Court for contemporaneous signatures/
handwritings? Is current handwriting science/expert
protocols in the area incapable of comparing
handwritings/signatures without contemporaneous
models for comparison; whether in all circumstances or
only in specific situations; and if in specific situations,
what are the range of circumstances where
contemporaneous handwritings/signatures required for
rendering an opinion
As the above issues are more appropriately addressed by
an expert in the field, we direct the Director of Central Forensic
Science Laboratory, Ramanthapur, Hyderabad to call upon the
Government Examiner of Questioned Documents or any other
appropriate expert in the field to draw up a report on the three
issues referred to above, enclosing any scientific/academic
material to support the conclusions of such expert. The
Director, Central Forensic Science Laboratory, Ramanthapur,
Hyderabad shall furnish to this Court the report as above
directed within four weeks from today.
A copy of this order shall be forthwith communicated by
the Registry to the Director, Central Forensic Science
Laboratory, Ramanthapur, Hyderabad and to the learned Govt.
Pleader for Home.
Print the name of the learned Govt. Pleader for Home.
Post after four weeks.
Pursuant to the above order, the Central Forensic Science
Laboratory, Hyderabad, submitted Report dated 22.11.2012, titled
Importance of Contemporaneous Handwritings/Signatures. This
Report was prepared by the Chairman and two members of the
Central Forensic Science Laboratory, Hyderabad. As regards the
three queries posed by this Court under the order dated 21.09.2012,
the Report addressed specific comments vis--vis each of them. The
queries and the comments made thereon are extracted hereunder:
a) Are contemporaneous handwritings /
signatures always or normally necessary for
comparison and report
Comment: Document Experts prefer to have writings /
signatures that are contemporaneous which are as
close to the document in question and where
possible of a similar nature.
It is not always necessary to have the
contemporaneous writing for comparison purpose.
However, handwritings/signatures are normally
necessary for better evaluation of the writing
habits and establish the range of natural variation
of the writer during the period.
b) What is the meaning of contemporaneous;
and what is the measure of contemporaneity
Comment: Contemporaneous means occurrence at same
period of time. No specific measure could be
assigned to the element of contemporaneity. One
of the famous authors in the field of examination of
documents, Ordway Hilton, in his famous book
Scientific Examination of Questioned Documents,
states that material written two or three years
before or after the disputed writing serve as
satisfactory standards and the same is
enunciated in page 11 of Annexure enclosed.
c) i) Why are Examiners of Questioned Documents
frequently returning documents sent to them
for opinion, to the referring Court for
contemporaneous signatures / handwritings
Comment: Document Experts examine carefully and
thoroughly the disputed writings and the standard
writings and compare them like-with-like. There
are two kinds of standards, informal which mean
documents previously executed in routine course
and formal which is request writing. In case of
request writing the writer may intentionally
disguise his or her own writing in order to avoid
detection. In some cases the writing may be
executed with the non-dominant hand in order to
change the appearance of the handwriting as well
as the request writings may be genuinely written in
simplified manner so that some writing features
may not be accountable when compared with the
corresponding questioned writings/ signatures. In
such instances it becomes necessary to have the
normal and naturally written contemporaneous
writing which exhibits sufficient individuality and
accountable features to reach a meaningful opinion
of authorship. Depending upon the nature of the
documents under examination, in some cases, the
expert may consider that all the writing habits as
occurring in the disputed writings could not be
collectively accounted for from the standard
writings supplied, and if some more standard
material/writings written over period of time of
execution of the disputed writings are supplied,
facilitates further examination, which may lead to
a definite opinion regarding the authorship or
otherwise of the disputed writings/signatures.
C ii) Is current handwriting science / expert
protocols in the area incapable of comparing
handwritings / signatures without
contemporaneous models for comparison;
whether in all circumstances or only in specific
situations; and if in specific situations, what
are the range of circumstances where
contemporaneous handwritings / signatures
required for rendering an opinion
Comment: Even in the absence of contemporaneous models
for comparison, examination of documents could
be carried out which may lead to one of the three
following conclusions, depending upon the nature
and data afforded by the exhibits of the
documents:
i) The person who wrote the standard writings /
signatures also wrote the disputed writings /
signatures.
ii) The person who wrote the standard writings /
signatures did not write the disputed writings /
signatures.
iii) It has not been possible to express any opinion
regarding the authorship or otherwise of the
disputed writings / signatures as all the writing
habits as occurring in the disputed writings /
signatures could not be collectively accounted for
from the standard writings / signatures supplied
for comparison.
Only in specific circumstances, the document
examiners seek for contemporaneous admittedly
genuine writings/signatures to form a definite
opinion to the extent possible.
The experts thereafter explained the technical issues involved
in undertaking comparison of handwritings/signatures and
concluded the Report, stating thus:
Identification of handwriting is based on like-with-like
comparison. During the process of identification consideration
must be given to the writing variation. No two samples of
writing written by any individual are identical in every detail,
since variation is an integral part of natural writing.
Nature and extent of variation differs from person to person
and, in its way, forms an important element in identification
process. Writing variation is due to various factors external
factors like writing position, writing instrument, care of
execution, etc; physical and mental conditions like fatigue,
intoxication, drug use, illness, nervousness, etc. These factors
produce a varying degree of variation. The variation is
commensurable in its degree with the intensity of the cause.
The advanced age of the writer and the quality of writing he
prepares in the course of time may introduce greater variation
between writings written at widely separated dates.
Variation does not preclude identification of the writing. In
fact, it forms an additional factor that serves to personalize the
writing.
Thus, handwriting can be most accurately identified when the
standard writings and the questioned writings were written
under comparable conditions.
It is necessary to demonstrate that not only the disputed
writing has the qualities and habits of the standard writing,
but also that the deviations from the basic patterns (nature
and extent of variations) that occur in the disputed writings are
such as can be predicted from the variations in the standards.
Limited comparable standards sometimes complicate the
matter of identification / non-identification. As such, adequate
and suitable standards be supplied.
If questioned writing purports to be by an aged writer, it is
especially desirable that the standards should not only be near
the date of the writing in question but it should also, if
possible, be shown that they were written under similar health
conditions.
In cases involving forged signatures not only should
comparison signatures be obtained from documents of similar
importance, but if possible also from documents which are
roughly contemporary with those in question.
Writing of an adult will show an obvious steady change with
passage of time. In these circumstances provision of a whole
set of signatures written over a period of years will prove of
inestimable value to the document examiner.
When serious illness occurs, a signature often undergoes a
remarkable change in a very short period and if a suspect will
is dated near the day of death, standard (admittedly genuine)
signatures covering this period are essential if reliable evidence
of the authenticity or otherwise of the signature is to be
established.
Normally, in the case of a typical adult, basic writing habits
change gradually. Therefore, material written two or three
years before or after the disputed writing serve as satisfactory
standards, but as the lapse of years between the date of
standards and questioned material becomes greater, the
standards have a tendency to be less representative.
Consequently, an effort should always be made to procure
some standards (admittedly genuine writings / signatures)
written near in date to the disputed matter.
The gist of the experts opinion, emerging from the above
Report, is to the effect that it is not always necessary to have
contemporaneous handwritings/signatures for comparison.
However, as a general rule, it would be desirable to undertake
comparison of admitted handwritings/signatures with disputed
handwritings/signatures which fall within the range of 2 or 3 years
from each other. Therefore, there can be no hard and fast norm as to
when comparison can or cannot be undertaken owing to the time lag
between the two sets of handwritings/signatures. Various other
factors would have to be taken into consideration, as opined by the
experts, quoted hereinbefore. Each case would turn upon its own
facts and circumstances relating to the time lag, the change in the
handwriting/signature, the capability of correlating the two sets and
ultimately, the opinion of the expert himself as to whether the two
sets can be compared. It is therefore not open to the Court to refuse
to entertain an application seeking comparison of disputed
handwritings/signatures with admitted handwritings/ signatures on
the ground of a long lapse of time between the two sets of
handwritings/signatures.
Sri T.S. Anand, learned counsel appearing for the petitioners in
C.R.P.Nos.1500 and 1572 of 2010, would submit that the question
referred for consideration by the learned Judge was widened in scope
and import by the Division Bench and therefore, that aspect of the
matter also needs to be addressed. According to the learned counsel,
apart from the issue of contemporaneity of handwritings/signatures,
the other question referred for consideration to this Full Bench is as
to the stage at which an application for expert opinion on disputed
handwritings/signatures should be made. He would rely upon the
reference order of the Division Bench in this regard and invite us to
go into this issue also.
It is no doubt true that the reference order passed by the
Division Bench not only spoke of the issue of contemporaneity of the
handwritings/signatures to be compared by the expert but also
adverted to the perceived inconsistency between two earlier decisions
of this Court, one by a Division Bench and the other, by a learned
Single Judge. However, even if there is a conflict between the two,
the view expressed by the Division Bench would invariably prevail
over that expressed by the learned Single Judge. The question of
reconciling the two views would therefore not arise in our considered
and respectful view. However, as Sri T.S. Anand, learned counsel,
brought up this issue and the Division Benchs reference order also
adverted to it, we deem it appropriate to examine the two decisions.
In ANNAPURNAMMA2, the learned Single Judge was dealing
with comparison of signatures by the trial Court in exercise of powers
under Section 73 of the Act of 1872. The signatures so compared
were of the years 1944 and 1950. In this context, the learned Single
Judge observed as under:
There is hardly a correct method of approach. In the
first place, it is not of much use to compare a signature of a
person said to have been made in 1950 with that made six
years earlier in 1944 as there is likely to be some change in the
signature. That apart, in the absence of any marked
differences between the two signatures, which indicated prima
facie that the disputed signature could not, in any
circumstances, have been that of the same person whose
admitted signature had been produced, a Court could not be
justified in rejecting the disputed signatures as not genuine. I
have been taken through the reasons given by the trial Court
which are set out in paragraphs 25 and 26 of the lower courts
Judgment.
It is only too well-known that the appearance of a
signature depends on many factors. The type of pen used, the
ink, the quickness of the flow of the pen, the paper on which it
was written, the place where the signature is put e.g., a
signature on a rough paper would not be exactly the same as
that on a smooth paper. In the same way, a signature written
with a rough pen would not be the same as a signature with a
good smooth-writing pen. Similarly if some smooth pad or
some such object is used for resting the paper at the time of
the signature, then that signature would be different from the
signature put on a paper resting on a rough surface.
There are many factors which have to be taken into
consideration in effecting a comparison of the two signatures,
and although a Court could apply its own eyes and its own
mind to determine whether a particular signature is resembling
another it would be going beyond the ordinary limits of the
capacity of a Court to constitute itself as a Handwriting Expert
and try to compare the signature without all the gadgets and
devices which are available to a Handwriting Expert, besides
the lack of expert knowledge which a Handwriting Expert
possesses.
When oral evidence clearly established that a person
executed a certain document it would be completely
unnecessary for the Court to embark upon an investigation
into the signatures by comparison. Having regard to the
opinion expressed by the Court below, I had to take the trouble
of comparing the signatures in Ex.B-3 with the signatures
contained in Ex.A-1, although it was not quite correct to do so
having regard to the long interval of time between the two
signatures. I find that the two prominent letters B and Z are
almost exactly similar.
It is clear from the above extract that the case before the
learned Single Judge was not one arising under Section 45 of the Act
of 1872 relating to expert opinion on disputed handwritings/
signatures. The learned Judge was not dealing with the issue of
capability of an expert to compare signatures which were six years
apart and on the other hand, found upon his own comparison that
the signatures tallied. The learned Judge, no doubt, added the
caveat that the comparison undertaken by him was not quite correct
having regard to the long interval of time between the two signatures,
but this observation need trouble us no longer in the light of the
expert opinion tendered by the Central Forensic Science Laboratory,
Hyderabad, which is to the effect that there can be no hard and fast
rule as to a time lag definitively rendering comparison of
handwritings/signatures futile.
The Division Bench judgment in JANACHAITANYA HOUSING
LIMITED1 was rendered upon a reference made by a learned Single
Judge of this Court on the question as to whether an application
under Section 45 of the Act of 1872 for expert opinion on disputed
signatures could be entertained at a later stage of the suit, including
when the suit was coming up for arguments after the entire trial.
Contemporaneity of the signatures in dispute and the admitted
signatures was not even in issue before the Division Bench. Upon
due consideration of the case law on the point, the Division Bench
answered the reference as under:
For the reasons aforementioned, we answer the reference
thus: No time could be fixed for filing applications under
Section 45 of the Indian Evidence Act for sending the disputed
signature or writings to the handwriting expert for comparison
and opinion and same shall be left open to the discretion of the
court; for exercising such discretion when exigencies so
demand, depending upon the facts and circumstances of the
each case.
Pertinent to note, merely because an application seeking expert
opinion is filed belatedly, it would not automatically mean that the
signatures sent for comparison are not contemporaneous. In effect,
there is no real conflict between the learned Single Judges opinion in
ANNAPURNAMMA2 and the decision of the Division Bench in
JANACHAITANYA HOUSING LIMITED1. The ratios of these two
judgments operate in wholly different fields and do not impinge upon
each other. The view expressed by the Division Bench in
JANACHAITANYA HOUSING LIMITED1 still continues to hold the
field and there is no dissenting view expressed by a co-ordinate
Bench warranting examination thereof by this Full Bench.
It may however be noted that an expert opinion under Section
45 of the Act of 1872 is not binding on the Court as it is only advisory
in nature. Whether such an opinion should be admitted and how
much weight should be given to it are aspects which would ultimately
lie within the domain of the Court, as evidence of an expert is liable
to be interpreted like any other evidence (MALAY KUMAR GANGULY
V/s. DR. SUKUMAR MUKHERJEE ).
We accordingly answer the reference as under:
It is essentially within the judicious discretion of the Court,
depending on the individual facts and circumstances of the case
before it, to seek or not to seek expert opinion as to the comparison of
the disputed handwriting/signature with the admitted handwriting/
signature under Section 45 of the Indian Evidence Act, 1872. The
Court is however not barred from sending the disputed handwriting/
signature for comparison to an expert merely because the time gap
between the admitted handwriting/signature and the disputed
handwriting/signature is long. The Court must however endeavour
to impress upon the petitioning party that comparison of disputed
handwritings/signatures with admitted handwritings/signatures,
separated by a time lag of 2 to 3 years, would be desirable so as to
facilitate expert comparison in accordance with satisfactory
standards. That being said, there can be no hard and fast rule about
this aspect and it would ultimately be for the expert concerned to
voice his conclusion as to whether the disputed handwriting/
signature and the admitted handwriting/signature are capable of
comparison for a viable expert opinion. The view expressed by the
Division Bench in JANACHAITANYA HOUSING LIMITED V/s. DIVYA
FINANCIERS1, as to the stage of the proceedings when an application
can be moved by a party under Section 45 of the Indian Evidence Act,
1872, continues to hold the field and there is no necessity for this
Full Bench to address that issue.
The matters may be posted before the Court concerned for
adjudication on merits.
______________________
R. SUBHASH REDDY, J
_______________________
RAMESH RANGANATHAN, J
_________________
SANJAY KUMAR, J
18th DECEMBER, 2015
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