IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 WP(C).No. 27643 of 2010(O) -------------------------- AGAINST THE ORDER IN IA 5183/2010 IN OS.629/2008 of I ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): ------------------------- 1. JACOB ABRAHAM, AGED 47 YEARS, S/O.ABRAHAM, RESIDING AT ROSE VILLA, ALAPPAT CROSS ROAD, KOCHI. 2. JUJU JACOB, AGED 44 YEARS, S/O.ABRAHAM, RESIDING AT ROSE VILLA, ALAPPAT CROSS ROAD, KOCHI. BY ADVS. SRI.P.SANJAY, SMT.A.PARVATHI MENON, SRI.BIJU MEENATTOOR. RESPONDENT(S): RESPONDENT IN I.A.: ------------------------------------------------------------ ANTONY JOSEPH, S/O.VARKEY JOSEPH, KOLUTHARA HOUSE, MANAPURAM P.O., THAIKKATTUSSERY, CHERTHALA. PIN 686 866. BY ADV. SRI.DENY JOSEPH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.27643/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE I.A.5183/2010. P2: COPY OF THE I.A.5156/2010. P3: COPY OF THE JUDGMENT IN W.P.NO.25626/2010 DTD. `13/08/2010. P4: COPY OF THE ORDER IN I.A.5156/2010 IN O.S.NO.629/08 DTD.04/08/2010. P5: COPY OF THE ORDER IN I.A.5183/2010 IN O.S.NO.629/08 DTD.04/08/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== W.P(C) No.27643 of 2010 ==================================== Dated this the 19th day of August, 2011 J U D G M E N T Exhibit P4, order dated August 04, 2010 on I.A. No.5156 of 2010 in O.S. No.629 of 2008 of the court of learned First Additional Sub Judge, Ernakulam is under challenge. The suit was filed by the respondent for realization of Rupees Four lakhs and odd from the petitioners. 2. Shorn of frills and embroideries, case of petitioners is that they have already paid Rupees Two lakhs to the respondent by way of three cheques – one crossed cheque for Rupees One lakh and two uncrossed cheques for Rupees Fifty thousand each. Payment of the sum of Rupees One lakh as per the crossed cheque is admitted by the respondent. But he disputed receipt of the amount covered by the two uncrossed cheques. He also denied that he encashed the said two cheques. The Manager of the drawee Bank was examined as D.W.1. He proved Exts.X1 and X2, the disputed cheques for Rupees Fifty thousand each and gave his opinion that the signature on the back of those cheques are dissimilar to the admitted signature. At that stage petitioners filed W.P(C) No.27643 of 2010 -: 2 :- I.A. No.5156 of 2010 to send X1 and X2, the disputed cheques along with Ext.B1, acknowledgment card signed by the respondent to the Expert for opinion as to the writing of name on Ext.B1, acknowledgment card and Exts.X1 and X2. That application was resisted by the respondent on various grounds including that attempt of petitioners is to protract the proceeding. Learned Sub Judge considered the contentions and observed that Exts.X1 and X2 did not contain the signature of respondent and since signature found on the back of Exts.X1 and X2 are different, verification of the writings will not improve the case of petitioners. It is also observed that no purpose will be served by sending the documents to the Expert. In the circumstances the request was disallowed. 3. Learned counsel for petitioner asserted that there is no signature on the back of Ext.X1 and X2. What is available is only the writing of name of the person who presented the cheques which according to the petitioner, is the respondent himself. That writing if compared with the writing in Ext.B1, according to the petitioners would show that all the writings are by the same person (respondent). That according to the learned counsel would advance the contention raised by petitioners that they had paid and respondent had received Rupees One lakh as W.P(C) No.27643 of 2010 -: 3 :- per Ext.X1 and X2, cheques. Learned counsel also submitted that it was wrong for the learned Sub Judge to place reliance on the opinion given by D.W.1, the Manager of the Bank as to the similarity of the signatures. 4. Learned counsel for respondent contended that there are signatures on the back of Exts.X1 and X2 which is not in any way similar to the admitted signature of respondent and in the circumstances no useful purpose will be served by sending the disputed cheques to the Expert for opinion. 5. Since photocopies of Exts.X1 and X2 are not before me, I am unable to say whether on the back of the same somebody has put the signature. But it is not disputed that on the back of Exts.X1 and X2, name of one 'Antony Joseph' is written. It is also not disputed that in Ext.B1, acknowledgment card also the name 'Antony Joseph' is written. Certainly there is some merit in the argument of learned counsel for petitioners that those writings could be compared. As to how the finding of the Expert on that matter would help the parties is a matter which the court below has to decide at appropriate stage. If Exts.X1 and X2 contain signature on its back also, the same also could be examined with reference to the signature in Ext.B1, acknowledgment card. In the nature of the contentions raised by W.P(C) No.27643 of 2010 -: 4 :- the by parties I consider it appropriate that petitioners be given an opportunity to get Expert opinion on the disputed writing/signature on the back of Exts.X1 and X2. Otherwise it may amount to shutting out evidence on the side of petitioners. In that view of the matter I am inclined to allow the request. Learned Sub Judge shall take appropriate follow up action with the Forensic Science Laboratory, Thiruvananthapuram (for short, “the FSL”) to which documents are being sent to get the report at the earliest. Resultantly, this Writ Petition is allowed as follows: (a) Exhibit P4, order dated August 04, 2010 on I.A. No.5156 of 2010 in O.S. No.629 of 2008 of the court of learned First Additional Sub Judge, Ernakulam is set aside. That application is allowed. (b) Learned Sub Judge is directed to send Exts.B1, X1 and X2 to the Forensic Science Laboratory, Thiruvananthapuram for opinion as prayed for in I.A. No.5156 of 2010. (c) The Expert shall be directed to examine the writing and signature, if any, on the back of Exts.X1 and X2 with those in Ext.B1 and render his W.P(C) No.27643 of 2010 -: 5 :- opinion in the matter. (d) Necessary expenses for examination by the Expert shall be met by the petitioner, as the learned Sub Judge shall direct. (e) Learned Sub Judge shall also issue necessary direction to the FSL to make available the report of the Expert as early as possible. (f) Further trial of the suit will stand stayed until receipt of the report from the FSL. THOMAS P. JOSEPH, JUDGE. vsv