IMPORTANT POINT
Some delay in taking steps for referring document to wisdom of expert cannot be a legal embargo for entertaining the plea.

S. Palanivelu, J.— The petitioner is defendant in O.S.No.220 of 2008 on the file of the First Additional District Munsif Court, Thirukoilur. The respondent has filed the suit on a pro-note against this petitioner for recovery of a sum of Rs.40,000 along with interest and costs. The suit was taken for trial and when it is in part-heard stage, the petitioner filed an application under Section 151 of CPC praying the Court to send the suit pro-note to the expert to ascertain the difference between the inks which were utilised for signing his signatures in the suit pro-note and other signatures contained in the printed form which is a filled up pro-note.

2. In the affidavit, he has alleged that while PW3, one Rajavel was examined in cross, he has admitted that inks used for signatures of the defendant and one Gopal are similar and the ink used for signatures of others have difference. However, in the re-examination, he has stated that Kali and Elumalai signed, exerting pressure and the difference occurred due to this. Hence, the suit pro-note has to be sent for ascertaining whether there are differences between the inks used for signatures in the suit pro-note and other printed form.

3. In the counter filed by the respondent, it is stated that the petition is not maintainable and that by means of document examination, the period of writing could not be accurately ascertained. The petitioner has not produced any registered documents of contemporaneous period to that of the suit pro-note for comparison of ink. The petition has been filed to procrastinate the proceedings. On 30.6.2008, the suit was filed. The plaintiff’s witnesses were examined and the case was posted for defendant’s witness on 18.6.2009. There is no explanation in the affidavit, for what reason this petition has been filed one year after the date of filing of the suit. The opinion of the handwriting expert is not conclusive. Hence, the petition may be dismissed.

4. The Court below dismissed the application by observing that no valid grounds are made out to refer the disputed document to the expert. Hence, the petitioner is before this Court.

5. The learned counsel for the petitioner Mr. T. Dhanyakumar would contend that the evidence adduced by PW3 by name Rajavel constitutes a good ground for supporting the contention projected by this petitioner, that by means of comparison and opinion of the expert, the respondent will not be prejudiced and that it is permissible under law to refer the disputed document to ascertain the difference in the inks utilised for different handwritings in a disputed document. Even though it is presumed that the document is true, invoking Section 118(a) of the Negotiable Instrument Act, sufficient opportunities must be given to the person who is stated to have delivered the negotiable instrument.

6. The learned counsel for the petitioner in support of his contention placed reliance upon a decision of the Honourable Supreme Court in T. Nagappa v. Y.R. Mudaliar1, in which it is held as follows:

“7. When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118 (a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it.”

7. In this decision, the Supreme Court has extracted Section 20 of the Negotiable Instruments Act and made an observation that the proviso to Section 20 has a rider, namely, no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid therein. Though a presumption could be drawn under the Act, it is a rebuttable presumption and as per the mandate in the above said decision, the party has to be accorded with ample opportunity to rebut the same.

8. In the above noted decision, earlier decision of the Su