The court ruled that there is no legal requirement under the Evidence Act for documents to be strictly contemporaneous to be referred to a handwriting expert. Denying such an examination based on mere apprehension of manipulation is incorrect, as expert analysis provides objective scientific verification that avoids prejudice to the defense.

JUDGMENT

(1) By filing this petition, the petitioner seeks to assail the order of the learned Judicial Magistrate, East Sikkim at Gangtok, dated 22-12-2010, in Criminal Case No. 10 of 2009, by which an application filed by the petitioner under Section 45 read with Sections 67 and 73 of the Evidence Act, 1872 was rejected.

(2) The petitioner states that the allegation against him in the criminal case before the learned Judicial Magistrate is that the sale deed and money receipt executed by him in respect of a land situated at Ranipool in favour of the respondent is fraudulent, as it is the very same property which had been sold by him earlier to some other persons also. Mrs. L. Chakraborty. learned counsel appearing on behalf of the petitioner, submits that it has been the case of the petitioner all through that the documents alleged to be the sale deed and the money receipt said to be executed by him were not signed by him and that the signature appearing in those documents were forged. It is further submitted that by the application dated 20-12-2010, the petitioner had prayed forwarding the questioned documents for the opinion of the hand writing expert under Section 45 of the Evidence Act, for the purpose of which 4 documents had been requested to be considered as he did not possess any other documents contemporaneous to the questioned documents.

(3) Mr. Ajay Rathi, the learned counsel appearing on behalf of the respondent, submits that having regard to the fact that the respondent has already led evidence and proved the signature appearing in the questioned documents as his, it would not now be permissible in law to send the documents for examination under Section 45 of the Evidence Act in view of the provisions of Sections 47 and 67.

(4) Mrs. L. Chakraborty, on the other hand, submits that the petitioner also has adduced evidence by producing witnesses and have proved that the petitioner had not appended the signatures appearing on the questioned documents. It is her submission that considering the overall circumstances, the learned trial Court ought to have allowed the petition and sent the documents for the opinion of the hand writing expert as prayed for. She placed reliance upon the decision in the case of Gaudiya Mission v. Shobha Bose, AIR 2008 SC 1012. I have considered the rival contentions of the parties and have perused the impugned order of the learned Judicial Magistrate. It appears that the learned Judicial Magistrate has rejected the application principally on the ground that the petitioner was unable to produce documents contemporaneous to the questioned documents, and that no useful purpose would be served to compare the signatures appearing in the said documents made more than 3 years earlier to the disputed documents, considering the possibility of the respondent disguising his style of signature/writings so as to make them dissimilar with the disputed signature/writings. The decision of Smt. Renu Devi Kedia v. Smt. Seetha Devi, AIR 2005 AP 180 and Vadrevu Annapurnamma v. Vadrevu Bhima Shankararao, AIR 1970 AP 359 were cited by him to arrive at his decision.

(5) In my view, the approach of the learned Judicial Magistrate has not been correct. Under the Evidence Act, two direct methods of proving hand writing of a person have been provided i.e. (i) by an admission of a person who wrote the document and (ii) by the evidence of some witness who saw it being written by that person. Besides this, there are other methods of proving hand writing.