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TMI Blog1998 (3) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... same chit again similar unsigned details by the defendants were written as alleged by the plaintiff. In this way the plaintiff received Rs. 5800/-. In all 8 gold ornaments weighing 20 tolas were pledged. On 7-5-1976 the defendant wrote a post card to the plaintiff that since the ornaments were not taken back and the loan was not repaid he had sold some of the ornaments weighing 7.25 tolas 2 annas remained in balance. It was also informed that in this way Rs. 3675/-remained due towards loan to be paid by the plaintiff. According to the plaintiff the defendant had no right to sell any of the ornaments pledged with him. Accordingly the suit for accounting was filed after serving notice. 3. The suit was contested by the defendants denying the transaction altogether. He also denied to have written any postcard to the plaintiff-Chita alleged to have been written by the defendant and the postcards allegedly written by the defendant were also denied. It was also pleaded that the suit was barred by limitation. 4. The trial Court did not find any force in the plea that the suit was barred by limitation. It further found that the plaintiff succeeded in establishing his claim. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Evidence Act, the Court can compare the disputed and admitted handwriting or signature for coming to its own conclusion. However, provisions of Section 73 of the Evidence Act, have been interpreted by various Courts as to how the signatures or handwriting are to be compared when there is no assistance from the expert. 8. In Kesarbhai v. Jethabhai AIR 1928 PC 227 the Privy Council observed that they would have thought it unsatisfactory and dangerous in any event to take decision in such a case as this on the correct determination of the genuineness of the signature by mere comparison with admitted signatures especially without the aid of evidence on microscopic enlargement or any expert advice. In this case Division Bench of the Bombay High Court compared the disputed endorsement on cheque with the admitted signature and felt no doubt that the endorsement was genuine. The Privy Council, however came to a different conclusion and observed that it was unable to feel certainty which was expressed by Appellate Bench of the High Court. In Kishore v. Ganesh [1954]1SCR919 the trial Court found that the 'signature on the letter was dissimilar to the admitted signature. On a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal. 12. However, this answer itself will not suffice for final disposal of the Second Appeal. If the judgments of the two Courts below are scrutinized with care and caution it is found that both the Courts below proceeded to decide the case on mere presumptions, surmises and conjectures. It is no where mentioned in the two judgments whether the Courts below made comparison with naked eye or with the help of magnifying glass or with the aid of some scientific mode of comparison. 13. Mere statement in the judgment that on comparison the disputed and admitted signatures are found to be of the same person is not enough and it cannot be said to be sound finding based on cogent and scientific reasons and data. Admittedly, the parties have not obtained expert's opinion. Even the Courts below did not direct the plaintiff to obtain report of his expert. There is nothing on record to show that the plaintiff was unable to manage the expenses for obtaining experts report. In the absence of expert opinion and expert report Court or Courts below should have taken into consideration other evidences on record. Admittedly and evidently there is no direct evidence to prove that the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such characteristics cannot be determined with certainty simply with the aid of admitted signature. Instances are not rare where a person signs in one manner whereas his handwriting has different mode and appearance. It is only handwriting which could be compared with the disputed or admitted handwriting or specimen handwriting. Again there is nothing on record to show that specimen handwriting of the defendant was obtained for comparison with his alleged handwriting on the chit (and) on its back. The two Courts below have taken recourse of comparison with the aid of two postcards written by the defendant to the plaintiff. These two postcards were denied by the defendant. Denial was express and not evasive. Not only handwriting but contents of the post card its posting and signature were also denied by the defendant. There is no proof from the plaintiffs side that the handwriting of the postcard is actually of the defendant. The two Courts below found that because postcard were received by the plaintiff from the post office in ordinary course it can be believed that it was written by the defendant. There is hardly such presumption in the eyes of law. On the other hand when a letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and the signature of the defendant was a faulty exercise which could not yield any positive result and if on such exercise the suit was decreed and the appeal was dismissed both the Courts below have fallen in error. Accordingly, the appeal is bound to succeed. 19. However, it may be mentioned that mere success of appeal in peculiar facts and circumstances of the case is not enough for setting aside the judgment of the lower Appellate Court and the trial Court and for dismissing the suit. From the material on record the judicial conscience requires that there should be a thorough inquiry about the respective contentions of the parties. It is, therefore, a fit case where the suit should be remanded to the trial Court with a direction that it shall direct the plaintiff to obtain opinion of a qualified expert and after examining the expert the trial Court shall give fresh decision on the disputed question relating to handwriting of the defendant on the disputed chit. If, however, the plaintiff shows his inability to obtain expert report then the trial Court shall with the help of magnifying glass compare the handwriting and shall insist upon the plaintiff to prove by direct evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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