Diligence in prosecuting applications, contemporaneity of sample signatures for comparison, and the prohibition of parallel investigation in civil suits while a criminal case is pending.

R. BANUMATHI, J.

1. Being aggrieved by the dismissal of the application in A.No.6092 of 2009 in C.S.No.879 of 2003 and declining to send the xerox copies of the Cheques for obtaining handwriting expert's opinion, appellant has preferred this appeal.

2. The respondent/plaintiff filed the suit in C.S.No.879 of 2003 on the file of this Court for recovery of a sum of Rs.26,80,583/- together with interest on Rs.21,50,000/-. Case of respondent/plaintiff is that plaintiff is carrying on business inter alia in financing. Appellant/1st Defendant Company availed the loan from the plaintiff on various dates (i) 2.1.2002 a sum of Rs.4,50,000/-; (ii) 22.5.2002 a sum of Rs.12,00,000/- and (iii) 10.7.2002 a sum of Rs.5,00,000/-, totally Rs.21,50,000/-. The said loan amounts were disbursed by the plaintiff by way of cheques in favour of the 1st defendant Company drawn on M/s.Tamilnadu Mercantile Bank Limited, Mandvi Branch, Mumbai. In consideration for the said loan availed, the 1st defendant Company, through its Directors, is said to have executed demand promissory note in favour of the plaintiff concern on the dates of availment of loan agreeing to repay the aforesaid loan on demand from the plaintiff. Calling upon the 1st defendant to repay the loan amount with interest, plaintiff issued legal notice dated 6.6.2003 and 1st defendant Company has sent its reply notice dated 11.7.2003 denying borrowal interlinking the transaction with another concern - M/s.Ganesh International. Thereafter, the respondent/plaintiff filed suit for recovery of Rs.26,80,583/- together with interest at 18% per annum.

3. On receipt of notice of application in the suit seeking for furnishing security, appellant/1st defendant entered appearance through its counsel. Appellant/1st Defendant had filed A.No.6092 of 2009 stating that the plaint documents No.1 to 4, which are allegedly executed by the Managing Director, are forged and demonstrably not the signatures of the Managing Director and that even the rubber stamp of the Company have been duplicated. Stating that the plaint documents 1 to 4 are forged, the appellant/1st defendant filed the application seeking to send the plaint documents No.1 to 4 for forensic examination along with appellant/1st defendant's admitted signatures in Cheques mentioned in the Schedule for the purpose of comparison and obtaining the opinion of the handwriting expert.

4. Upon consideration of the submissions, the learned single Judge held that all admitted signatures filed in the enclosures are only xerox copies and that comparison of disputed documents cannot be made with the signatures found in the xerox copies of the documents. The learned Judge further held that if at all any opinion is given by the handwriting expert, it is nothing but an opinion given by the Forensic Science Department, which is not a positive science and therefore held that referring the documents containing disputed signatures along with admitted signatures to the Forensic Science Department is unnecessary exercise and on those findings dismissed the application.

5. Challenging the impugned order, the learned counsel for the appellant Mr.Seethapathy submitted that the appellant was disputing the signature on his behalf and that even the rubber stamp of the appellant Company was not genuine and had been duplicated and the learned Judge ought to have appreciated the contention of the appellant and the application ought to have been allowed. It was further contended that the signatures of the appellant's Managing Director were forged and fabricated and the Managing Director offered to present himself before the Handwriting Expert of the Forensic Science Department and to sign in front of the expert so that the same could be compared with the disputed signatures and while so learned Judge erred in saying that the enclosures were only xerox copies and therefore the comparison could not be made.

6. Reiterating the findings in the impugned order, the learned cou