Friday, 25 December 2015

Whether two finger prints can be declared as non-identical if they differ in their pattern type?

The well known text book i.e. B.L. Saxena's Law and Techniques relating to Identification of Handwriting, Patna High Court FA No.119 of 2010 dt.13-08-2013 Disputed Documents, Fingerprints, Footprints and Detection of Forgeries revised by Atul Kumar Singla at page 249, clause 8 provides that two finger prints can be declared non-identical on even a single point of material difference between them. If all finger prints differ in their main pattern type or sub-pattern type or ridge counting or ridge tracing or in their ridge characteristics they had surely been impressed by different finger prints. The law relating to Handwriting, Fingerprints and Graphology by Dr. Sarla Gupta (Agrawal), Beniprasad Agrawal, 2012 Edition at chapter 21 synopsis 3, the meaning of pattern has been explained that pattern is the factor which presents either similarity or difference at the first sight. So before considering the details, one may, at the outset, look to find out whether the two finger prints under examination show similar pattern or different pattern. If the pattern happens to be similar, the other details need be looked into. In case the pattern differs, then the impressions are not identical and further details need not be looked into.
 In these principles regarding finger prints admittedly in this present case, the pattern was found different, therefore, it was not necessary for the experts to look further details. In such circumstances, I do not find any substance in the submission of the learned counsel for the appellants to the effect Patna High Court FA No.119 of 2010 dt.13-08-2013 that further details should have been given by the expert. It is settled principles of law that more qualified expert's evidence is to be accepted in preference to the less qualified expert and that too a private expert to whom the photographs of the disputed thumb impression were sent by the advocate without the order of the court. 
Patna High Court
Ram Jatan Rai vs Dr. Sita Ram Singh & Ors on 13 August, 2013
Author: Mungeshwar Sahoo
 Citation: 2014(2)PLJR535
 Since both the First Appeals arise out of the same judgment and decree dated 05.06.2010 passed by the learned 3 rd Subordinate Judge, Danapur in Title Suit No.96 of 2008/129 of Patna High Court FA No.119 of 2010 dt.13-08-2013 2010, both the First Appeals are heard together and are disposed of by this judgment.
2. The plaintiff Dr. Sita Ram Singh filed the aforesaid suit through his Power of Attorney Holder Mr. Ranjan Kumar for declaration of title and confirmation of possession over the Schedule-5 property and for declaration that the alleged Power of Attorney dated 19.12.2005 and the registered sale deeds executed on 27.06.2007 and 23.05.2008 pursuant to the said Power of Attorney are fraudulent, collusive, void ab initio and not binding on the plaintiff regarding the property detailed in Schedule-5 of the plaint. The plaintiff also prayed for injunction and cost of the suit.
3. The plaintiff-respondent Dr. Sita Ram Singh claimed the aforesaid relief on the allegation that the suit property belonged to one Chandrika Ram. He had purchased the land by registered sale deed dated 10.07.1965. He died and then his widow, sons and daughters sold the property by registered sale deeds to different purchasers in the year 1981, including the plaintiff Dr. Sita Ram Singh. The plaintiff sold 15 decimals land out of Schedule-4 property to Smt. Nilima Rai and the rest of the property remained with the plaintiff, which is detailed in Schedule-5 of the plaint. The plaintiff is doctor in profession and resides at United Kingdom. He executed the Power of Attorney in favour of Ranjan Kumar for Patna High Court FA No.119 of 2010 dt.13-08-2013looking after the property on 24.05.2007. In September, 2007 the said Power of Attorney Holder Ranjan Kumar heard that Ram Jatan Rai is trying to sell the suit property alleging that he is the Power of Attorney Holder of Dr. Sita Ram Singh. Ranjan Kumar went to the Registry Office and got the information about the so- called fraudulent and fabricated Power of Attorney dated 19.12.2005. Thereafter he gave the necessary information to the Circle Officer and the Registry Office and also got news printed in the daily newspaper 'Dainik Jagaran'. He informed the plaintiff about this fraudulent and fabricated Power of Attorney. The plaintiff came to know about the fabrication after obtaining the certified copy of the Power of Attorney dated 19.12.2005. According to the plaintiff, a photo of another person has been pasted on the Power of Attorney and by impersonating the plaintiff for the purpose of grabbing the plaintiff's land the said Power of Attorney was created fraudulently and collusively. The plaintiff then filed Rupaspur P.S. Case No.26 of 2008 against the concerned persons, including Ram Jatan Rai and his son Jitendra Kumar.
4. The further case of the plaintiff is that, he confirmed the unregistered Power of Attorney dated 24.05.2007 in favour of Ranjan Kumar by registering a further Power of Attorney on 11.06.2008 and according to the direction of Patna High Court FA No.119 of 2010 dt.13-08-2013 Additional Chief Judicial Magistrate the finger print of the plaintiff was obtained in presence of Judicial Magistrate and then it was sent for comparison to Forensic Science Laboratory with the disputed finger print occurring in the register of Registry Office, Danapur, which was called for. According to the plaintiff, he never executed any Power of Attorney in favour of Ram Jatan Rai nor he ever directed any scribe to write Power of Attorney nor he ever signed any such Power of Attorney dated 19.12.2005. He also never pasted his own photo on any such Power of Attorney and the alleged Power of Attorney dated 19.12.2005 was got executed by somebody else by committing forgery and fabricating the same. The sale deed executed by Ram Jatan Rai in favour of his son Jitendra Kumar on 27.06.2007 and the sale deed executed in favour of defendant no.3 dated 23.05.2008 are collusive, illegal, inoperative, fraudulent and do not affect the right of the plaintiff on the land mentioned in Schedule-5 of the plaint.
5. The defendant no.1 filed separate written statement. Besides taking various legal and ornamental pleas mainly he contended that the Power of Attorney dated 19.12.2005 was executed by Dr. Sita Ram Singh in favour of him. The Power of Attorney was scribed by the scribe at the dictation of Dr. Sita Ram Singh. He read it over to the plaintiff Dr. Sita Ram Singh and after Patna High Court FA No.119 of 2010 dt.13-08-2013 finding it to be correct Dr. Sita Ram Singh signed the same and also pasted his photo and got it registered. The plaintiff kept the chirkut saying that he will return the same after getting the amount of consideration of the land. Subsequently, the defendant no.1 paid the entire consideration amount and obtained the chirkut and after that he also obtained the Power of Attorney from the Registry Office. The sale deed dated 27.06.2007 was executed in favour of Jitendra Kumar after obtaining full consideration amount and likewise the defendant no.3 also paid full consideration amount. After purchase, the purchasers were put in possession of the purchased land. The defendant no.1 had no knowledge about taking of finger print in presence of the Judicial Magistrate. The defendant no.1 has also paid the consideration amount of the sold land to the plaintiff Dr. Sita Ram Singh.
6. The defendant no.2 supported the case of defendant no.1. According to him, he has purchased the plot no.88, area 03 kathas for Rs.5,52,500.00 and is in possession of the same. According to the defendant no.2, the defendant no.1 has paid Rs.85 lacs as total consideration amount of the plaintiff's land to Dr. Sita Ram Singh and had obtained the chirkut. The finger print of some other person has been taken in presence of the Judicial Magistrate. The Power of Attorney dated 19.12.2005 and the sale deeds dated Patna High Court FA No.119 of 2010 dt.13-08-2013 27.06.2007 and 23.05.2008 are legal and valid.
7. The defendant nos.3 and 4 supported the case of defendant nos.1 and 2. According to them, 08 kathas land of plot no.52 was purchased by them for Rs.29,75,000.00.
8. On the basis of the above pleadings of the parties, the learned court below framed various issues. Out of the said issues, issue no.(iii) was as to whether the Power of Attorney dated 19.12.2005 and the sale deeds dated 27.06.2007 and 23.05.2008 executed pursuant to the Power of Attorney are fraudulent, illegal, fabricated, forged and void ab initio and issue no.(iv) is to the effect that whether the plaintiff has got title and possession over Schedule-5 land.
9. After trial, the learned trial court considering the evidences documentary as well as oral recorded the finding that the thumb impression on the Power of Attorney in question is not of Dr. Sita Ram Singh rather it is of different person. Dr. Sita Ram Singh never executed the Power of Attorney dated 19.12.2005. The signature, photo and thumb impression on the Power of Attorney are not of Dr. Sita Ram Singh. Accordingly, the learned trial court held that the Power of Attorney is void ab initio, forged and fabricated. Thus, the suit was decreed.
10. The defendant no.1 Ram Jatan Rai filed First Patna High Court FA No.119 of 2010 dt.13-08-2013 Appeal No.119 of 2010 against the said judgment, whereas the purchaser-defendant Jai Shanker Prakash has filed First Appeal No.127 of 2010.
11.The learned senior counsel Mr. S.S. Dwivedi appearing on behalf of the appellant in First Appeal No.119 of 2010 and learned senior counsel Mr. Dhruv Narayan appearing on behalf of the appellant in First Appeal No.127 of 2010, both argued the case in the same line. According to the appellants the thumb impression said to have been taken in the court of Judicial Magistrate was not taken in presence of defendant no.1. Therefore, it is not admitted thumb impression. The report of the expert was filed in the said criminal case which was called for by this court from the criminal court and the same was exhibited in the present case which is not admissible in this suit and cannot be read against the appellants because the appellants had no knowledge about the thumb impression as to whether it was of Dr. Sita Ram Singh or of different person. The learned counsel further submitted that the report which has been proved in this suit is not admissible because the basis for the report is not there. Only one line opinion has been given. In such circumstances, the trial court could not have decreed the plaintiff's suit finding that the thumb impression is of different person. The trial court was duty bound to appoint an expert for Patna High Court FA No.119 of 2010 dt.13-08-2013 comparing the disputed thumb impression or finger prints with the admitted thumb impression or finger prints in this suit but instead of doing so the report in criminal case was called for, which was prepared behind the back of the appellants. The learned counsel further submitted that so far the signature is concerned, instead of getting an expert opinion, the trial court itself compared the same and came to the conclusion that the signature occurring in the Power of Attorney is not of Dr. Sita Ram Singh and likewise without getting an expert report the trial court wrongly comparing the photograph occurring on the Power of Attorney recorded the finding that the photo is not of Dr. Sita Ram Singh. The learned counsel further submitted that the court should not act as an expert and give finding without the help of the opinion of expert because if it is done so by the court, the other party will be debarred from cross-examining the court. In the present case, the court without obtaining the expert report compared himself the signature and the photograph.
12. The learned counsel further submitted that it is admitted in the evidence by the plaintiff himself that the thumb impression was taken in the court of Judicial Magistrate in the criminal case when the appellants were not present and, therefore, the report is inadmissible against the appellants. Moreover, the Patna High Court FA No.119 of 2010 dt.13-08-2013 expert proceeded to compare the disputed thumb impression with the so-called signature of Dr. Sita Ram Singh assuming that the said thumb impression is admitted thumb impression, therefore, also the judgment is vitiated.
13. An interlocutory application being I.A. No.4187 of 2012 has been filed in First Appeal No.119 of 2010 praying for permission to adduce additional evidence and the finger prints, signatures and photograph of Dr. Sita Ram Singh may be obtained in the High Court itself in presence of both the parties and the High Court may appoint an expert for comparison. The learned counsel further submitted that in the court below various such applications were filed but the learned court below kept the applications pending and passed the judgment which amounted to refusal of the prayer. A statement to this effect has also been made at paragraph- 11 of the interlocutory application. According to the learned counsel, the fate of the case rests on the finding regarding the genuineness of the photograph, finger print and signature of Dr. Sita Ram Singh on the disputed document, Power of Attorney dated 19.12.2005. Since the court below without taking the assistance of an expert, himself acted as an expert without disclosing his knowledge on the subject, it is serious error in the present facts and circumstances of the case. Therefore, the expert Patna High Court FA No.119 of 2010 dt.13-08-2013 may be appointed and the finger print, the signature and the photograph be compared by an expert. On these grounds, the appellants submitted that the impugned judgments are liable to be set aside.
14. On the other hand, learned senior counsel Mr. P.N. Shahi submitted that the thumb impression taken by the Judicial Magistrate in the criminal case is not disputed by the appellants. Their case is that in their absence it was taken. In the criminal case the thumb impression was taken which was compared with the original register after calling for the same from the Registry Office. Merely because the defendants were absent, there cannot be any presumption that in fact the thumb impression of a different person than Dr. Sita Ram Singh was obtained by the Magistrate or the investigating agency. Moreover, the plaintiff denied his signature, his thumb impression and also even the photograph on the Power of Attorney dated 19.12.2005. The appellants themselves got the said thumb impression of Dr. Sita Ram Sngh, which was taken before the Judicial Magistrate, compared with the disputed thumb impression occurring in the Power of Attorney. The defendant no.1 never disputed that it is not the thumb impression of Dr. Sita Ram Singh and his expert gave an opinion to the effect that the thumb impression obtained before the Judicial Magistrate and the thumb Patna High Court FA No.119 of 2010 dt.13-08-2013impression occurring in the disputed Power of Attorney are of the same person. Had the defendant no.1 disputed the thumb impression of Dr. Sita Ram Singh, he would not have got the same compared with the disputed thumb impression occurring on the Power of Attorney. Now, therefore, on mere technical ground the appellants cannot be permitted to adduce additional evidence. It is not the case that on the basis of the evidence available on record no finding can be recorded on the question of controversy between the parties.
15. So far the comparison by the court himself is concerned, the learned counsel submitted that the court has the jurisdiction to compare the same according to section 73 of the Evidence Act. The report submitted by the expert in the criminal case is an evidence and that evidence was called for in the present suit, which was proved by one of the experts, who compared the thumb impression. Now, therefore, after the evidence of expert in the present suit the report became evidence in the present suit, which is admissible. According to the learned counsel, in view of Order XIII Rule 10 of the Code of Civil Procedure the court has the power to call for records of any other proceedings and inspect the same and in exercise of the jurisdiction under this Rule the court called for the said report, which was proved by the expert, Patna High Court FA No.119 of 2010 dt.13-08-2013 P.W.10. In such circumstances, the report cannot be thrown out on the ground that the thumb impression was not taken in presence of the appellants. The learned counsel further submitted that for comparing photograph, the expert is not all necessary. The defendant no.1 himself in his evidence admitted the photograph of plaintiff Dr. Sita Ram Singh in the passport. He also identified Dr. Sita Ram Singh in the court and on his admission the photograph has been marked exhibit and anybody can compare the photograph of Dr. Sita Ram Singh, which is admitted by defendant no.1 with the photograph pasted in the last page of Power of Attorney. The photograph in the Power of Attorney is not small photograph rather it is passport size and anybody, who is able to see even a little, can say that the photograph occurring in the Power of Attorney is not of Dr. Sita Ram Singh pasted in the passport, voter identity card, etc. When there is a doubt in the mind of the court regarding comparison of two signatures, the court should not act as an expert but when the signatures are so different that even anybody can say it is of different person then in that case the court should not insist for opinion of an expert. If it is apparent from the face of the signatures, the court has jurisdiction to compare the same and the court has in this case compared the same. In such circumstances, the report of the expert is being Patna High Court FA No.119 of 2010 dt.13-08-2013 corroborated by difference of photograph and signature. In view of the above, the trial court has rightly held that the thumb impression or the photograph or the signature on Power of Attorney dated 19.12.2005 is not of Dr. Sita Ram Singh.
16.The learned counsel further submitted that Ext.D has been produced to show that Rs.85 lacs was paid to the plaintiff by the defendant no.1 and the receipt has been granted but there is no pleading to this effect in the W.S. of defendant no.1, therefore, this document is created document. The court below has found that this is also a forged document. The learned counsel further submitted that the Power of Attorney could not have been registered at Patna particularly when in the Power of Attorney dated 19.12.2005 the address of Dr. Sita Ram Singh has mentioned in United Kingdom and permanent address is of different place and according tosection 32 read with section 33 of the Registration Act the same is required to be registered by the Registry Office where the plaintiff Dr. Sita Ram Singh resided. Therefore also the defendant no.1 fraudulently got the Power of Attorney registered at Patna. On these grounds, learned counsel submitted that the interlocutory application and the First Appeals are liable to be dismissed.
17. In view of the above rival contentions of the Patna High Court FA No.119 of 2010 dt.13-08-2013 parties, the only point arises for decision in these First Appeals is as to whether the disputed Power of Attorney, Ext.A (original) is forged, fabricated registered Power of Attorney or Dr. Sita Ram Singh executed and registered the same and the signature, thumb impression and photograph occurring in the said Power of Attorney are of Dr. Sita Ram Singh?
18. From the pleadings as well as the submissions of the parties, the only dispute is regarding this Ext.A i.e. the Power of Attorney. So far the title of Dr. Sita Ram Singh is concerned, it is not disputed. The defendant no.1 admittedly had sold a portion of suit property to his son and other purchasers on the basis of this Power of Attorney, Ext.A. The plaintiff in the plaint specifically pleaded that he never executed any such Power of Attorney in favour of Ram Jatan Rai. He never signed any such document or put his thumb impression and also pasted his photograph. On the contrary, according to the defendants it is the Power of Attorney executed by the plaintiff Dr. Sita Ram Singh. The finger print, signature and photograph are of Dr. Sita Ram Singh. In support of their respective cases, both the parties have adduced oral as well as documentary evidences. The certified copy of Power of Attorney has been proved by the plaintiff as Ext.5, whereas the original has been produced by the defendants, which has been marked as Ext.A. Patna High Court FA No.119 of 2010 dt.13-08-2013 The plaintiff Dr. Sita Ram Singh has been examined as P.W.1 in this case. In his evidence, he has stated that he executed the Power of Attorney in favour of Ranjan Kumar for the purpose of looking after the suit property and he informed abut the forged and fabricated Power of Attorney dated 19.12.2005 in favour of defendant no.1 Ram Jatan Rai. On the basis of the said Power of Attorney, Ram Jatan Rai had sold a portion of the property in favour of his son. At paragraph-21, he has specifically stated that when he came to know about this forgery he filed Rupaspur P.S. Case No.26 of 2008 against Ram Jatan Rai, his son and other. At paragraph-23, he specifically denied that he ever executed any such Power of Attorney in favour of Ram Jatan Rai. He never went to Danapur Registry Office nor he ever signed or pasted his photograph nor put his finger print. At paragraph-27, he has specifically stated that an application was filed by the Investigating Officer in the court of Chief Judicial Magistrate, Danapur for obtaining finger print of Dr. Sita Ram Singh and on the order of the court he put his signature in presence of Sri B.K. Srivastava, Judicial Magistrate, 1st Class. The said report was sent to the Government Forensic Science Laboratory which was compared with the register, which was called from the Registry Office. The report was obtained in that case that to the effect that the finger Patna High Court FA No.119 of 2010 dt.13-08-2013prints do not resemble. In cross-examination, the defendant never confronted the signature to this witness for identification. From cross-examination, it appears that the defendant cross-examined him on various points. At paragraph-71, he has specifically stated that he got the thumb impression compared by the expert and if the defendant wants to get the same compared he may do so. It appears that there is no suggestion even to this witness that in fact the thumb impression or finger print which was taken in presence of the Judicial Magistrate was not of this witness rather it was of different person. The other witness P.W.2 is Raushan Kumar. He has also stated that the photograph occurring in the Power of Attorney dated 19.12.2005 is not of Dr. Sita Ram Singh and the Power of Attorney is forged and fabricated. P.W.4 is the Power of Attorney Holder of Dr. Sita Ram Singh, namely Ranjan Kumar. He has fully supported the case made out in the plaint. P.W.10 is Lakhan Lal (an expert), who has proved the report which has been marked as Ext.21. According to this witness, he and other members of the Board of Experts including the Director examined the thumb impression of Dr. Sita Ram Singh with the disputed thumb impression occurring in the register and the report has been sent. According to him, the pattern of thumb impression did not resemble. P.W.11 is the photographer, who took the photograph of Patna High Court FA No.119 of 2010 dt.13-08-2013 the disputed thumb impression and the admitted photograph i.e. the thumb impression of Dr. Sita Ram Singh given in presence of Judicial Magistrate on the application filed by the Investigating Officer in the criminal case.
19. P.W.6 is the Pleader Commissioner. The plaintiff has also produced Ext.13, which is the Voter Identity Card of Dr. Sita Ram Singh with photograph and Ext.14 is the residential certificate with photograph of Dr. Sita Ram Singh. Ext.24 is the photograph of Dr. Sita Ram Singh on the passport. All these evidences have been produced by the plaintiff in support of the fact that the photograph appearing on the original Power of Attorney is of a fake person and is not of Dr. Sita Ram Singh and the signature or the thumb impression is not of Dr. Sita Ram Singh.
20. On the contrary, the defendants have also produced oral as well as documentary evidences. D.W.1 is defendant no.1 Ram Jatan Rai. D.1-W.11 is Rekha Prem Samaiyar, who is the expert, was examined on behalf of the defendants in support of the fact that the thumb impression of Dr. Sita Ram Singh obtained in presence of Judicial Magistrate is of the same person, who put the thumb impression in the register of the Registry Office. Ext.I is the report of the expert. Ext. J series are the photographs. Various witnesses have been examined, who are either formal or have Patna High Court FA No.119 of 2010 dt.13-08-2013 proved the possession of the parties. However, the main question as has been stated above is regarding the genuineness of the Power of Attorney.
21. In view of the controversy between the parties the genuineness or otherwise of Ext.A, the Power of Attorney, cannot be decided on the basis of oral evidence only. The witnesses examined on behalf of the plaintiff stated that the signature and the photograph also are not of Dr. Sita Ram Singh. The plaintiff as P.W.1 stated that he never executed any Power of Attorney in favour of defendant no.1. He specifically stated that the Power of Attorney is forged, fabricated. His signature is not there and photograph is not his photograph. In such circumstances it is necessary to examine the fact as to whether the defendants have been able to prove the fact that the signature is of Dr. Sita Ram Singh or the photograph is also of Dr. Sita Ram Singh. So far the finger print is concerned, the expert has been examined by both the parties. P.W.10 has proved the expert report, which has been marked as Ext.21. On the contrary, the defendants have also examined the private expert D.1-W.11 Rekha Prem Samaiyar. The report has been proved, which has been marked as Ext.I. According to the expert of defendants, she has examined the thumb impression on the request of the learned counsel Mr. Lavinya Patna High Court FA No.119 of 2010 dt.13-08-2013 Singh. She compared the thumb impression of Dr. Sita Ram Singh occurring in the Power of Attorney dated 19.12.2005 with the thumb impression which was taken in presence of the Judicial Magistrate in Rupaspur P.S. Case No.26 of 2008. Further in the cross-examination, she admitted that she has not mentioned anything about the Power of Attorney in her report and the photographs of thumb impression were sent to her by Sri Laxman Singh, which were not identifiable separately i.e. no separate identification mark was given. She also admitted that it is not clear as to whether the photographs sent to her are the left thumb impression or right thumb impression. She has also admitted that no order was obtained from the court for comparison. The materials were sent by the advocate whereas she sent the report to the court of Subordinate Judge, Danapur.
22. On the contrary, according to the evidence of P.W.10, he is an expert in the office of Angulak Bureau Apradh Anusandhan Shakha, Bihar. In Rupaspur P.S. Case No.26 of 2008, the register of the Registry Office (the relevant portions thereof which were marked as 'X' and 'Y') was sent for comparison. In the Bureau Sri Ashutosh Kumar, Smt. Shakuntla Kumari and he himself i.e. Lakhan Lal compared the thumb impression of Dr. Sita Ram Singh on the direction of Director Patna High Court FA No.119 of 2010 dt.13-08-2013 Smt. Anjana Kumari and submitted the report.
23. In view of the evidence of P.W.10 and D.1-W.11, the question will be as to whether whose report will prevail and which report is to be accepted. Learned counsel for the appellants submitted that the basis for giving this report (Ext.21) has not been submitted before the court and only an opinion was given, therefore, this report is not reliable. Moreover, the report was obtained in criminal case, therefore, it is not admissible in civil case. So far this submission is concerned, it may be mentioned here that the report is being proved by one of the experts, who is P.W.10. The report was called for from the said criminal court which is being proved here. In such circumstances the evidence, which was collected during the course of investigation in criminal case, was called for by the court and when the expert proved the report in civil case, the said report became the evidence in this civil case.
24. Order XIII Rule 10 of the Code of Civil Procedure reads as follows:
10.Court may send for papers from its own records or from other Courts.-
(1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same.
Patna High Court FA No.119 of 2010 dt.13-08-2013 (2) Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.
(3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit.
25. This provision of the Code of Civil Procedure has been interpreted by the Hon'ble Supreme Court in the case of Lakshmi and another Vs. Chinnammal alias Rayyammal and others reported in (2009) 13 Supreme Court Cases 25. The Hon'ble Supreme Court at paragraph 17 has held that in a civil suit where a document is to be proved, the report of an expert may be brought on record in terms of the provisions of the Evidence Act. Having regard to the provisions contained in Order XIII Rule 9(1) first proviso (a) (i) of the Code, the Civil Court would furthermore be entitled to substitute the original document by a certified copy. It appears that in that case in the civil suit the concerned officer refused to call for the report of the expert. Hon'ble Supreme Court set aside the order and held that if bringing on record a document is essential for proving the case by Patna High Court FA No.119 of 2010 dt.13-08-2013 a party, ordinarily the same should not be refused; the court's duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged though the court in the said process would not encourage any fishing enquiry. In that case also it appears that the Forensic Science Laboratory Report was called for. Here, therefore, it cannot be said that the report of the expert submitted in the criminal case cannot be called for. Here, the expert himself has proved the report and, therefore, in my opinion, the court had the jurisdiction to call for the same and, therefore, rightly the document was also considered after admitting it in evidence.
26. Learned counsel for the appellants submitted that the basis for giving opinion is not in the Ext.21. From perusal of Ext.21 it appears that after examining the thumb impression, report has been given to the effect that the thumb impression of Dr. Sita Ram Singh does not resemble with the thumb impression appearing on the register of Registry Office. It appears that the thumb impression of both the thumb impression of Dr. Sita Ram Singh was compared. In the report it is mentioned that the patterns of the thumb impression are different.
27. The well known text book i.e. B.L. Saxena's Law and Techniques relating to Identification of Handwriting, Patna High Court FA No.119 of 2010 dt.13-08-2013 Disputed Documents, Fingerprints, Footprints and Detection of Forgeries revised by Atul Kumar Singla at page 249, clause 8 provides that two finger prints can be declared non-identical on even a single point of material difference between them. If all finger prints differ in their main pattern type or sub-pattern type or ridge counting or ridge tracing or in their ridge characteristics they had surely been impressed by different finger prints. The law relating to Handwriting, Fingerprints and Graphology by Dr. Sarla Gupta (Agrawal), Beniprasad Agrawal, 2012 Edition at chapter 21 synopsis 3, the meaning of pattern has been explained that pattern is the factor which presents either similarity or difference at the first sight. So before considering the details, one may, at the outset, look to find out whether the two finger prints under examination show similar pattern or different pattern. If the pattern happens to be similar, the other details need be looked into. In case the pattern differs, then the impressions are not identical and further details need not be looked into.
28. In these principles regarding finger prints admittedly in this present case, the pattern was found different, therefore, it was not necessary for the experts to look further details. In such circumstances, I do not find any substance in the submission of the learned counsel for the appellants to the effect Patna High Court FA No.119 of 2010 dt.13-08-2013 that further details should have been given by the expert. It is settled principles of law that more qualified expert's evidence is to be accepted in preference to the less qualified expert and that too a private expert to whom the photographs of the disputed thumb impression were sent by the advocate without the order of the court. So, here, the preference to the report (Ext.21) is to be given over the report of private expert of the defendants. In my opinion, Ext.21 is admissible and reliable in the facts of the present case and the court below has, therefore, rightly relied upon the same.
29. The submission of the learned counsel for the appellants that the thumb impression of Dr. Sita Ram Singh was not obtained in presence of the defendants is concerned, it may be mentioned here that this is only a technical ground. On the contrary, he himself got the said thumb impression of Dr. Sita Ram Singh compared with the Power of Attorney by private expert (D.1-W.11). This point was not raised before the court that the thumb impression taken before the Magistrate by the investigating agency on the order of Chief Judicial Magistrate is not the thumb impression of Dr. Sita Ram Singh. In my opinion, therefore, this point raised by the appellants is only a technical objection and on that ground alone the report cannot be discarded. It appears that in cross-examination of the witnesses even no Patna High Court FA No.119 of 2010 dt.13-08-2013 suggestion has been given that the thumb impression obtained by the Judicial Magistrate is not of Dr. Sita Ram Singh. Now, therefore, I do not find any merit in the submission of the learned counsel that it is not admitted thumb impression.
30. The signature on the disputed Power of Attorney has also been denied by Dr. Sita Ram Singh. In his evidence he specifically denied the signature. It may be mentioned here that the document (Ext.A) was in custody of the defendant but in the witness box the defendant never confronted him the signature. He did not get it identified by P.W.1. None of the parties filed any application for comparison of signature of Dr. Sita Ram Singh with the disputed signature on Ext.A. Learned counsel for the appellants submitted that the court below himself compared the signature of Dr. Sita Ram Singh signed by him in his deposition before the court with the disputed signature on Ext.A and found that the signature on Ext.A is not of Dr. Sita Ram Singh. The learned counsel for the appellants relying on the decision of the Hon'ble Supreme Court in the case of O. Bharathan Vs. K. Sudhakaran (A.I.R. 1996 SC 1140) submitted that the comparison of the disputed signature by the Judge without aid of expert or person conversant with the disputed signature is illegal. From perusal of the decision of the Hon'ble Supreme Court it Patna High Court FA No.119 of 2010 dt.13-08-2013 appears that in that case the election petition was under consideration. The witnesses examined on the side of the election petitioner had either admitted that they had voted two times or they must be deemed to have voted two times in view of similarity of signatures on two counterfoils alleged to be related to those witnesses and Hon'ble Judge proceeded to compare the signature found in the counterfoils to find out whether both the signatures were to be by the same person. Therefore, the fact of the said case is not similar. Here, in the present case none of the parties prayed for comparison of the signature. The plaintiff specifically denied his signature. The plaintiff also put his signature in the deposition. The Power of Attorney in favour of Ranjan Kumar has also been produced, Ext.10.
31. From a bare perusal of the signature occurring in these documents and Ext.A, anybody can say that the signature occurring in Ext.A is not of Dr. Sita Ram Singh. When the signature is apparent on the face value why the court will insist for the examination of an expert. Here, had there been any resemblance in the signature of Dr. Sita Ram Singh (admitted) and the signature in Ext.A (disputed) the question of examination of expert was necessary to find out whether which one is the real signature. I may reiterate here that when there is no doubt in the Patna High Court FA No.119 of 2010 dt.13-08-2013 mind of the court that the signatures are of different persons and cannot be the signature of same person why the court will not exercise the jurisdiction under section 73 of the Evidence Act.
32. In the case of Murarilal Vs. State of M.P. (A.I.R. 1980 SC 531), the Hon'ble Supreme Court at paragraph 12 has held as follows:-
12. The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.
Patna High Court FA No.119 of 2010 dt.13-08-2013
33. I myself compared the signatures and found that the signatures are entirely different and it cannot be said that the signature on Ext.A is of Dr. Sita Ram Singh. I, therefore, find that the learned court below on this point also has rightly exercised the jurisdiction under section 73 of the Evidence Act and found the same, which in my opinion, is correct.
34. So far the photograph is concerned, Dr. Sita Ram Singh specifically stated that the photo pasted in the Power of Attorney, is not of Dr. Sita Ram Singh. The photograph of plaintiff on the passport has been marked as Ext.24. The defendant no.1 himself identified this photograph to be of Dr. Sita Ram Singh. The photograph of Dr. Sita Ram Singh on Voter Identity Card is Ext.B and likewise the residential certificate with photo of Dr. Sita Ram Singh is marked as Ext.14. These photographs are not disputed at all rather as stated above, D.1 himself identified the photograph of plaintiff Dr. Sita Ram Singh on the passport. The photographs of Dr. Sita Ram Singh on passport, Voter Identity Card and residential certificate are same. If these photographs are compared with the photograph of Ext.A, no prudent person can say that the colour photograph of passport size pasted on Ext.A is of Dr. Sita Ram Singh. Below the said photograph, a colour photograph of defendant no.1 is also pasted. Patna High Court FA No.119 of 2010 dt.13-08-2013For identification of photograph no expert is necessary. Any person can compare the photograph. The lower court also after comparing the photograph of Dr. Sita Ram Singh on those exhibits with passport size colour photograph on Ext.A in the last page opined that the photograph is not of Dr. Sita Ram Singh. I also compared and found that this photograph is not of Dr. Sita Ram Singh. During the course of hearing of First Appeals Dr. Sita Ram Singh was present all along before the court. The original passport was produced at the time of hearing of the appeals. Therefore, I also compared the photograph of Ext.A with the plaintiff Dr. Sita Ram Singh, who was present physically before this court. I again repeat here that the photograph is not of Dr. Sita Ram Singh.
35. So far the submission of learned counsel that the court should not act as an expert is concerned, it may be mentioned here that the court has the jurisdiction to compare the signature in view of the provision as contained in section 73 of the Evidence Act. Likewise, the court can compare the photograph also. Why the court only, anybody can compare. Had there been any resemblance or had there been any doubt in the mind of the court, the court has the jurisdiction to refer the matter to the expert but when it is apparently visible even without magnifying glass, Patna High Court FA No.119 of 2010 dt.13-08-2013 why the court will insist for expert's opinion. There is no doubt at all here. By no stretch of imagination it can be said that the photograph is of Dr. Sita Ram Singh. In my opinion, therefore, the submission of learned counsel for the appellants has got no force. It cannot be said that unless the expert is examined, the court has no jurisdiction to compare even the photograph or the signature and give its opinion. In my opinion, if there is apparent difference, the court can look into the disputed signature and the admitted signature and likewise the disputed photograph and the admitted photograph can be compared by the court. The defendants- appellants even had no courage to show the photograph on Ext.A to P.W.1 when he was cross-examined in the witness box. P.W.1 in his evidence specifically stated that he had not pasted his photo on Ext.A the appellants could have got the photo identified by P.W.1 as was done by plaintiff while cross-examining the defendant no.1 who identified the photo of Dr. Sita Ram Singh on passport.
36. So far the interlocutory application i.e. application filed by the appellants under Order XLI Rule 27 of the Code of Civil Procedure is concerned, the learned counsel for the appellants submitted that an expert be examined for comparison of the disputed signature and the disputed thumb impression and also Patna High Court FA No.119 of 2010 dt.13-08-2013 the photograph. The learned counsel for the appellants submitted that in fact the applications were filed before the trial court but the prayer has been refused and the applications were kept pending. So far this submission is concerned, it may be mentioned here that the applications filed by the defendants had already been rejected by the trial court by terms of order dated 01.04.2010. The said order was never challenged. Moreover, the defendant himself got the disputed thumb impression compared by the private expert. So far permitting a party for additional evidence is concerned, recently the Hon'ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin & Anr. reported in 2013 (1) P.L.J.R. 48 SC has held that taking of additional evidence by the appellate court is permissible only and only if the conditions laid down in Order XLI Rule 27 of the Code of Civil Procedure are found to exist. Parties are not entitled, as of right, to the admission of such evidence. When on the basis of evidence on record, the appellate court can pronounce a satisfactory judgment, provision does not apply. Here, in the present case, both the parties adduced expert evidence and the trial court accepted the expert evidence of the plaintiff. This court also found that the expert opinion of the plaintiff is acceptable. In such circumstances, there is no question of further examination of expert arises. It cannot be said that on Patna High Court FA No.119 of 2010 dt.13-08-2013 the evidences available on record no satisfactory judgment can be passed by the court. In such circumstances, the application filed by the appellants for permission to adduce additional evidence i.e. for appointment of expert by this court for comparison of the disputed thumb impression, signature and photograph by an expert is unwarranted and is not necessary. Accordingly, interlocutory application filed by the appellants under Order XLI Rule 27 of the Code of Civil Procedure is hereby rejected.
37. So far the submission of the learned counsel for the appellants that Rs.85 lacs has been paid by the appellants to the plaintiff and a receipt has been granted by the plaintiff Dr. Sita Ram Singh, which is marked as Ext.D is concerned, it may be mentioned here that there is no such pleading in the written statement of defendant no.1. Nowhere the defendant no.1 in the written statement mentioned about this Ext.D. It is settled principles of law that if any evidence is produced without there being any pleading, the said evidence cannot be looked into vide the decision of the Hon'ble Supreme Court reported in 2013 (1) P.L.J.R. 48 SC referred to above paragraph 67 (vii). The same view has also been taken by the Hon'ble Supreme Court in (2008) 17 Supreme Court Cases 491 = A.I.R. 2009 SC 1103. According to the Hon'ble Supreme Court, no amount of evidence Patna High Court FA No.119 of 2010 dt.13-08-2013 can be looked into upon a plea which was never put forward. In the present case, the only case pleaded in the written statement at paragraph 11 is that the defendant no.1 paid the entire consideration money to Dr. Sita Ram Singh who handed over chirkut to this defendant no.1. There is no reference of Ext.D or the amount paid. Moreover, when the Power of Attorney (Ext.A) itself has been found to be forged and fabricated not signed by the plaintiff Dr. Sita Ram Singh and the finger print and photograph on Ext.A are not of Dr.Sita Ram Singh, the so-called money receipt (Ext.D) cannot be relied upon. There is no details of the amount, whether it was paid in cash or cheque or Bank draft.
38. So far the other witnesses examined by the purchasers or the defendant no.2 are concerned, they have stated either possession of the property or bonafide purchaser or payment of consideration amount. Some of the witnesses have stated that Ext.A has been executed by Dr. Sita Ram Singh. For proving or disproving the genuineness of the document, oral evidence is immaterial. Here, the thumb impression has been compared. On the basis of this comparison of thumb impression by the expert, the finding is not recorded rather the opinion of the expert prima facie is supported by the fact that the photograph pasted on the last page of Ext.A is not of Dr. Sita Ram Singh. Patna High Court FA No.119 of 2010 dt.13-08-2013 Further this fact is corroborated by the comparison of signatures as has been discussed above. Now, therefore, photograph or the signature cannot be held to be of Dr. Sita Ram Singh only because a particular witness is saying so. In view of this position, all evidences of the witnesses are not being discussed in detail. Only the evidences, which are material for the decision of the controversy between the parties are discussed.
39. So far the question regarding registration of Ext.A at Danapur is concerned, the learned counsel for the respondent submitted that the address of Dr. Sita Ram Singh has been given as United Kingdom and permanent address is of district Munger. Therefore, in view of section 32and 33 of the Registration Act it could not have been registered at Danapur. On the contrary, according to the learned counsel for the appellant here, section 33 read with section 32 of the Registration Act will not apply in case of Ext.A. According to the learned counsel for the appellants section 33 refers to the Power of Attorney executed in favour of a person for presentation of a document for its registration which is required to be registered according to the address of the executor of Power of Attorney. From perusal of the provision of section 32 and 33, I find force in the submission of the learned counsel for the appellants. Therefore, here section 33is not applicable with Patna High Court FA No.119 of 2010 dt.13-08-2013 respect to Ext.A.
40. In view of my above discussion, it becomes clear that Ext.A is a forged and fabricated document. The defendant knowingly took a frivolous defence in the suit to the effect that the Ext.A is executed and registered by Dr. Sita Ram Singh. In the case of Salem Advocate Bar Association, T.N. Vs. Union of India reported in (2005) 6 Supreme Court Cases 344, the Hon'ble Supreme Court has held that judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases such an order is passed despite section 35(2) of the Code of Civil Procedure. Such a practice also encourages filing of frivolous suits. It also leads to the taking up of frivolous defence. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When section 35 (2) provides for costs to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons, therefor.
41. Since the appellants, who are purchasers, have Patna High Court FA No.119 of 2010 dt.13-08-2013 purchased the property on the basis of the Power of Attorney (Ext.A), the title will not pass to them. Their sale deeds are pursuant to the forged and fabricated Power of Attorney, therefore, the purchasers did not acquire right, title and possession on the basis of their sale deeds. I, therefore, confirm the finding of the trial court on these points.
42. In the result, both the First Appeals are dismissed with costs of Rs.25,000.00 to be paid by defendant no.1 to the plaintiff Dr.Sita Ram Singh within two months, failing which the plaintiff will be at liberty to realise the costs through the process of the court.
(Mungeshwar Sahoo, J.) Harish/-
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