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1971 Supreme(Gau) 26
GAUHATI HIGH COURT
B.N.Sarma, J.
Joeendra Prasad Singh -Appellant
Versus
Joy Kanta Roy -Respondent
Second Appeal No. 220 of 1968
Decided On : 28-04-1971
K.P.Bhattacharjee, K.P.Sen
The court cannot play the role of an expert in comparing handwriting without the assistance of an expert and ignoring the direct evidence of witnesses.
Headnote:
COMPARISON OF HANDWRITING - EXPERT OPINION - EVIDENCE ACT, 1872 - SECTIONS 45, 47 - COURT'S ROLE - INTERPRETATION - ADMISSIBILITY OF EVIDENCE - BURDEN OF PROOF - CIVIL CASES - PREPONDERANCE OF PROBABILITIES.
Fact of the Case:
Plaintiff sued defendant for recovery of Rs. 2000/- borrowed by the defendant on 12-11-1965. Defendant denied the loan and receipt of the amount. Trial court decreed the suit, but the lower appellate court reversed the decree and dismissed the suit.
Finding of the Court:
The lower appellate court erred in assuming the role of a handwriting expert without any other assistance and in not considering the evidence of the defendant properly on a misconception of the law relating to the burden of proof.
Issues: 1. Whether the court below erred in playing the role of an expert by comparing the signatures in the receipt with the admitted signatures of the defendant without the assistance of any expert and ignoring the direct evidence of witnesses that the signatures were not of the defendant? 2. Whether the lower appellate court ignored material evidence, namely the document and the admission of the defendant in his cross-examination that he had taken a loan of Rs. 2000/- from the plaintiff? 3. Whether the learned lower appellate court proceeded on a misconception of the law relating to the burden of proof in the case?
Ratio Decidendi: 1. A comparison of handwriting as a mode of proof is always hazardous and inconclusive, especially when made by one not conversant with the subject and without any guidance or assistance that may be derived from the evidence of some expert. 2. The court must satisfy itself by such means as are open that the opinion of an expert or a person familiar with the handwriting and signature of a person may be acted upon. 3. The court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness. 4. When each of the parties adduces evidence in the case, the question of burden of proof loses all importance. 5. Even if the plaintiff fails to discharge the burden of proof by his evidence, but the defendant in his evidence admits the material fact or the evidence led by him tends to prove the plaintiff's case, there is no bar for any decree on the basis of such admission or evidence. 6. In civil cases, unlike criminal cases, the benefit of reasonable doubt must not necessarily go to the defendant. A preponderance of probabilities may be the basis for a decree.
Final Decision: Appeal allowed. The judgment and decree appealed against are set aside. The appeal is remanded to the court below for fresh disposal after hearing the learned lawyers of both the parties and in the light of the observations made hereinabove.
2. The case of the plaintiff was that the defendant borrowed a sum of Rs. 2000/- from him on 12-11-65 by giving a stamped receipt signed by him. stipulating to repay the same within a week. As the defendant did not repay the money as stipulated, the plaintiff instituted a criminal case under Section 420 of the Indian Penal Code against him. but in that case, plaintiff was directed to seek his remedy in the civil court and so he filed the present suit.
3. The defendant filed a written statement and contested the suit. He denied having borrowed Rs. 2000/- or any other amount from the plaintiff on 12-11-65 or on any other date. He also denied having granted any receipt with his signature as alleged. It was however alleged by the defendant that he used to have monetary transactions with the plaintiff in the past and that at that time the plaintiff might have obtained his signature on some blank paper, but he never signed on any revenue stamp, as in the document relied on by the plaintiff.
4. In support of his case, the plaintiff examined himself and 4 other witnesses. The plaintiff (P. W. 3) and P. W. 4 Mafiiudddin Sheikh gave evidence to prove that the defendant executed the receipt Ex. 2 which was written by one Jadab Das. since dead, and received Rs. 2000/- from the plaintiff. P. W. 5 Hemendra Nath Rov is a petition writer who proved that the receipt Ex. 2 is in the hand of deceased Jadab Chandra Das. who was also a petition writer and whose hand-writing he knows. P. W. 1 Rafiqulla Sheikh who was the President of Kisamat Hasdah Gaon Sabha proved that the defendant filed a petition Ex. 1 (dated 20-2-64) before him making some allegations against the plaintiff, where, inter alia it was stated that he (defendant) borrowed a sum of Rs. 2000/-from the plaintiff signing on a blank paper and that he had since repaved this amount. P. W. 2 Birendra Naravan Roy proved that he wrote the Ex. 1 at the instance of the defendant and that the defendant put his signature there in his presence.
5. The defendant examined himself and no other witness. In his examination-in-chief, he denied having borrowed from the plaintiff and also the fact that he had given the receipt Ex. 2. The two signatures on the revenue stamps in the said receipt purported to be his were also denied. The 3rd signature at the bottom of Ex. 2 marked Ex. 2 (3) was however neither denied nor admitted. In his cross-examination, he admitted that he had taken a loan of Rs. 2000/- from the plaintiff, but he said that it was without any receipt. He said that this amount was repayed to the plaintiff within 2/3 days. but without any receipt or witness. The disputed signatures were not sent to any expert for opinion.
6. On a consideration of the evidence, the learned Munsiff held that the defendant borrowed Rs. 2000/- from the plaintiff as alleged and that he has not repayed the same. With this finding, he decreed the suit with costs. The defendant then took an appeal before the Assistant District Judge. The learned Assistant District Judge after hearing the parties, reversed the decree of the learned Munsiff and dismissed the suit. Hence the plaintiff has come up with this second appeal.
7. Mr. Sen, the learned counsel for the appellant attacked the decree of the lower appellate court on the following grounds:
(1) That the court below erred in law by playing the role of an expert by comparing the signatures Exs. 2 (1) and 2 (2) in the receipt with the admitted signatures of the defendant. Exs. 2 C3) and 1 (1) and coming to a conclusion from such comparison, without the assistance of any expert and ignoring the direct evidence of P. Ws. 3 and 4. that the signatures in Exts. 2 (1) and 2 (2) were not of the defendant.
(2) That some material evidence, namely the document Ex. 1 and the admission of the d
