J!MlWiEI!ti:'.:.;iA: HIGH COURT OF CHHATTISCrARH AT BILASPUR APPELLANT F.A. No. 193 OF 2006 Bahadur Singh RESPONDENT Versus Brijmohan Agrawal ORDER !. \. Postfor^S-4-2010 Sd/- N.K. Agrawa! Judge *to«ssawwii( ••••i^S^^tl^Kkf,:. ^ 1 / i ^&fc^ 1 ,"mV-t HIGH COURT OF CHHATTISGARH AT BILASPUR •(...- APPELLANT DEFENDANT RESPONDENT PLAINTIFF F.A. No. 193 OF 2006 Bahadur Singh, S/o late Jagmohan Singh, Constable No. 65, R/o Chhote Attarmuda, Tehsil and Distt. Raigarh .(CG) Versus Brijmohan Agrawal, S/o late Kali Charan Agrawal, resident of Danipara Tehsil and Distt. Raigarh SB:- Hon. Shri N.K. Agarwal, J. PRESENT: 2. Shri R.P. Tripathi, Adv. for the appellant. Shri Vipin Punjabi, Adv. for the respondent. ORD.ER ( 2-3-4-2010) This is defendant's appeal under Section 96 of the Code of Civil Procedure against thejudgment and decree dated 17- 8-2004 passed in Civil Suit No. 6B/2002 by the District Judge, Raigarh. Facts of the case in brief are as under:- The plaintiff instituted a suit for recovery of Rs. 1,21,264/- against the defendant. According to the plaintiff, on defendant's showing his need, he advanced Rs. 60,000/- to defendant on 19-4-98. By executing receipt (Ex. P-1) the defendant assured repayment within a period of 3 months along with interest at the rate of 2% per month. Despite assurances, the defendant did not repay the amount advanced nor paid any interest therefor. The defendant filed his written- statement, denied execution of document Ex. P-1, denied his signature over it, pleaded Ex. P-1 as forged document, denied any advance made by the plaintiff to him, prayed for dismissal of the suit with heavy cost. Learned trial Court framed following issues:- 7. 8. 'ss^s ':^^^ "T. . i^fPratm^^^B Hajar Rupye Karj Liya ? 2. Kya Prativadi Ne 2 Pratishat Mahwar Ki Dar Se Byaj Ada Kame Ka Karar Kiya ? 3. Kya Vadi 1.21.264/- Rupye Prapt Karne Ka Adhikari Hai ? 4. Sahayata avm Vyay ? Atirikt Vad_Prashna 1. Kya Vadi Ka Dava Kanunan Poshniya Nahin Hai? 1 .A Kya Vadi Sahukari Ka Vyavsay Karta Hai ? A.B Kya Vadi Ke Pas Ukt Vyavsay Ke Liye Anugyapti Nanih Hai ? Yadi Han To Prabhav ? Leamed trial Court on appi-eciation of the evidence led, documents placed and submissions made, decided issues in plaintiff's favour and decreed the suit. Hence this appeal. Shri Tripathi, learned counsel for the appellant would submit that learned trial Court has fallen in error in holding document P-1 as genuine without there being any expert evidence adduced by the plaintiff merely on the basis of casual coinparison of the signature by the trial Court itself under Section 73 of the Evidence Act. He would further contend that the evidence on record clearly suggests the parties are in inimical terms, it is highly improbable that the defendant will take loan or the plaintiff will advance loan to the defendant in such circumstances. On fhe ofher hand, Shri Vipin Pubjabi, leamed counsel appearing for the respondent supported the judgment and decree impugned and vehemenfly argued that thejudgment and decree is based on proper appreciation of the evidence available on record and the same deserves to be upheld. I have heard learned counsel for the parties and perused the judgment and decree impugned and the record of the trial Court. 11. .-^6 3 ~~? The plaintiff's case is based on document Ex. P-1 said to be executed by the appellant/defendant. According to the plaintiff, loan of Rs. 60,000/- was taken by the defendant by executing the document Ex. P-1. The defendant categorically denied his signature over it, also pleaded the document as forged and fabricated. Burden was on the plaintiff to prove that the defendant-had executed the above document and not on the defendant to prove the negative. Indisputably the parties did not examine any handwriting expert to prove its genuineness or otherwise. Leamed Trial Court in para 13 of its judgment held document Ex. P-1 contains signature of the defendant on the basis of comparison made by it. As per the finding recorded by the learned Trial Court, the signature over the disputed document Ex. P-1 appears to be similar to the signature over admitted document. The Supreme Court in case of Thiruveaeadam Pillai —v- Navaneethaninial and another1 observed in para 16 and 17 as under:- "16. While there is no doubt that court can compare the disputed handwriting/signature/ finger impression with the admitted handwriting/ signature / finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardaus and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the adndtted finger impression, it goes without saying that it can record an opinion or finding on such comparison , only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same '• characteristic are found in the disputed finger impression. The comparison of the two thumb vnpression cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is oftheperson who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and adrrdtted tkumb ' (2008) 4 SCC 530 m ) ! 'Ssf^S*'»^. I '^^^^ 1 ""a"aicSft S^f 12. 13. <^ impression are clear and uihere the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression zs smudgy, vague or very light, the court should not hazard a guess by a casual perusal. 17. The dedsion in Murari Lal2 and Lalit Popli3 should not be construed as laying a proposition that the court is bound to compare the disputed and adnutted finger impressions and record a finding thereon, irrespective ofthe condition ofthe disputed finger impression. When tkere is a positive denial by the person who is said to have afjvced his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impression. Further, even in case where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristic, sirrdlarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance orperusal." Learned trial Court on the basis of casual perusal of the dpcument Ex. P-1 recorded a finding that it bears signature of defendant without there being any analysis of the characteristics of the admitted sigriature and after verifying whether the same characteristics are found in the disputed signature. . It is no doubt true that the Court has power to compare the disputed signature wifh the admitted signature as this power is clearly available under Section73 ofthe Evidence Act, however, while exercisihg such power, the Court is obliged to analyse the characteristics of the admitted signature with the characteristics of the disputed signature. Court should not form an opinion by a casual 2 (1980)1 SCC704 3 (1997)78cc 110 ,^"f" ''-• yl;ss^ \ lt'> •s •^--7. <--*'• perusal. The law laid down by the Supreme Court in the above referred case can be summarized as under:- (i) While recording a finding by comparing the disputed signature with the admitted signature under Section 73 of the Evidence Act, the Court should analyse the characteristics of the admitted signature and after verifying whether the saine characteristics are found in the disputed signature. (ii) Comparison of two signatures cannot be casual or by a raere glance. (iii) The Court should hesitate to venture a decision based on its own comparison of the disputed and admitted signature. (iv) As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. 14. By applying fhe aforesaid proposition of law in the facts and circumstances of the present case, it is crystal clear that the trial Court has held disputed signature to be of defendant only on the basis of its casual perusal, which in the considered opinion of this Court, is unsafe to hold the document as genuine. 15. For the foregoing, in the considered opinion of this Court, learned trial Court has erred in deciding the issues in plaintiffs favour on the basis of comparison of signature under Section 73 of the Evidence Act by mere casual perusal and therefore -has fallen in error in decreeing the suit and the judgment and decree deserves to be and is hereby set aside and the matter is remitted back to the trial Court for decision afresh after affording opportunity of examining handwriting expert to the plaintiff and thereafter B'ill •l '^' :1> :', ~'9 WY 'feaa'-"^' ^;^T^^^^^^^^B^^^^^^^ -0 in rebuttal to the defendant and to decide the suit in accordance with law. 16. In view of above, there shall be no order as to costs. Sd/- N.K. Agrawa! Judge