Courts Should Make Careful Study To Ascertain Similarities When Comparing Disputed Handwritings, Signatures With Admitted Documents: Kerala HC

The Kerala High Court in a significant judgment held that where the Court is constrained to undertake the responsibility of comparing the disputed writing or signature with the admitted handwriting or signature, it shall make a careful study, of the same with the assistance of counsel, to ascertain the similarities and dissimilarities, and not merely a casual or routine glance. 

Justice K. Babu, passed the order and observed that, 

"In a case where the Court is constrained to undertake the responsibility of comparing the disputed writing or signature with the admitted handwriting or signature, it shall make a careful study, if necessary, with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. The judgment shall contain the reasons for any conclusion based on a comparison of the handwriting/signature if the Court proceeds to record a finding thereon. Conclusions arrived based on a casual or routine glance, or perusal shall not be relied on to enter into a finding leading to the conviction of an accused". 

The Court in this case further went on to hold that as per the mandate of Section 47 of the Indian Evidence Act, the opinion of a lay person who is acquainted with another's handwriting or signature can be admitted, when he has often seen that person writing something, or when he has been receiving papers written by that person in reply to his own drafts or for the purpose of typing, filing, or advising. 

"In the present case, the witnesses relied on by the court below only stated that as they had worked with the accused in the same office, they could identify their signatures and writings. The circumstances by which they got familiarity with the signature of accused No.1 or the handwriting of accused No.2 had not been brought out in evidence. They had not given evidence to the effect that they had received documents written by accused Nos. 1 and 2 in answer to documents written by themselves or under their authority and addressed to them or in the ordinary course of business received documents written by accused Nos. 1 and 2 or such documents were habitually submitted to them. Their evidence is so weak that such an inference is not possible", it observed while allowing the appeals before it. 

The Case

The prosecution case was that the first and second accused persons who were working as a Junior Employment Officer, and as an Upper Division Clerk in the Town Employment Exchange, Neyyattinkara, respectively, hatched a conspiracy with the third accused who was a beneficiary under the ‘Kerala Unemployment Assistance and Self Employment Scheme, 1982’. It is the case of the prosecution that when the registration of the third accused in the Employment Exchange expired in November 1987 and he failed to renew it within the statutory period, the accused persons 1 and 2 issued a duplicate identity card to him on July 4, 1988, pursuant to which a sum of Rs.3,070/- was paid to third accused during the period between 27.02.1989 to 15.6.1994 as unemployment assistance. It was alleged by the prosecution that the 2nd accused person had prepared the duplicate identity card, while the 1st accused had affixed his signature in the capacity as issuing authority, and had thereby abused their official position to extend the pecuniary benefit to the 3rd accused and also cause corresponding loss to the Government. 

Accordingly, the three accused persons were charged with offences under Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 409, 477-A and 420 r/w Section 120 B of the Indian Penal Code. The trial Court (the Enquiry Commissioner and Special Judge, Thiruvananthapuram) convicted the three accused and sentenced the 1st accused person to undergo rigorous imprisonment for a term of two years and the 2nd and 3rd accused persons to undergo rigorous imprisonment for a term of one year each.

It is against this decision of the trial court that the instant appeals were preferred. 

It was pointed out by the counsels for the appellants that the prosecution had relied on the oral evidence of PW 3 who was an Upper Division Clerk attached to the Town Employment Office, Neyyatinkara, who worked during the period 1985 to 1991, PW 4, PW 7 who was a 71 year old Employment Officer of the Town Employment Exchange, PW8 who was another employee of the Town Employment Office, Neyyattinkara, and PW9. The counsels pointed out that PW3 could not ascertain the signature and writings seen in the duplicate identity card was that of the 1st and 2nd accused respectively; PW 4 also submitted that he could not ascertain who wrote the duplicate identity card. Although PW7 identified the signature in the duplicate document as that of  the 1st accused, he added that he came to the conclusion that the said signature was affixed by the said accused since the name of the signatory was there. On the other hand, PW 8 and 9 deposed that the signature and writings in the document resembled that of the accused 1 and 2. It was contended that the evidence of the said prosecution witnesses do not satisfy the requirements of Section 47 of the Evidence Act. 

Findings of the Court

The Court in this case discerned that the crux of the dispute in this case revolved around the admissibility of the opinion of the lay witnesses PWs 3, 4, and 7 to 9 as provided in Section 47 of the Evidence Act.

It is at this juncture that the Court perused Section 47 of the Evidence Act, and noted that the Court could admit the opinion of a person who is acquainted with another person’s handwriting or signature who has seen that person write; or has received documents written by that person in answer to documents written by himself or under his authority and addressed to that person; or has in the ordinary course of business received documents written by that person or such documents are habitually submitted to him. 

In this case, the Court observed that there was no direct evidence since the prosecution had no case that any of the witnesses examined to prove its allegations had seen either of the two accused persons write or put signature.

"As far as the evidence against accused Nos.1 and 2 is concerned, the prosecution could not bring forth sufficient material to prove that the witnesses though partly supported the prosecution had an opportunity to have familiarity with the signature of accused No.1 and handwriting of accused No.2 in accordance with the requirements of Section 47 of the Evidence Act", it observed. 

The Court further took note that the complicity of the 3rd accused in the conspiracy had been sought to be established on the basis of duplicate registration card and identity card being recovered from his possession, and similarity between the signatures in the series receipts showing the receipt of money in his name to that of the signatures seen on the application stated to have been submitted by him at the time of registration in the Employment Exchange. The counsels for the 3rd accused had averred that an Officer of the VACB who conducted preliminary enquiry before the registration of FIR had recovered the duplicate registration card and identity card, and that he had not been examined. 

The Court thus observed that the trial court had relied upon such documents on a mere casual glance without careful study, and that the opinion formed by the trial Court was not put to the 3rd accused in his examination under Section 313 Cr.P.C. The Court found that there was nothing on record to show that the accused was given an opportunity to explain the circumstance. 

It thus importantly observed that, 

"Examination of the accused under Section 313 CrPC is not an empty formality. The requirement of Section 313 CrPC is that the accused must be explained the circumstances appearing in the evidence against him so that he can offer an explanation. It is important to put to the accused each material fact that is intended to be used against him and to afford him a chance of explaining it if he can. In exercising its power under section 313 CrPC, the Court must take care to put all relevant circumstances appearing in the evidence against the accused person. It would not be enough to put a few general and broad questions to the accused. It is trite that the circumstances which were not put to the accused in his examination under Section 313 CrPC have to be completely excluded from consideration". 

Thus, in the instant case, the court ascertained that the the opinion formed by the trial Judge is liable to be excluded from consideration. Accordingly, it found that the prosecution failed to establish the complicity of the 3rd accused with the alleged offence.

"The resultant conclusion is that the prosecution failed to establish the offences alleged against the accused. The accused are found not guilty of the offences alleged and therefore they are acquitted of the offences punishable under Section 13(2) r/w 13(1)(d) of the PC Act, 1988 and Sections 409, 477-A and 420 r/w Section 120 B of the Indian Penal Code", it held while setting aside the conviction and sentence passed against the accused. 

The Court further added that the bail bonds, if any, executed by the accused shall stand discharged, and that any amount deposited by the accused as per the interim orders of the Court shall also be disbursed to them as per law. 

Advocates V.S. Vineeth Kumar, R.T. Pradeep, Vijulal, Sasthamangalam S. Ajithkumar, and Renjith B. Marar appeared on behalf of the appellants in the appeals. The respondent was represented by the Special Government Pleader (Vigilance) A. Rajesh. 

Case Title: S. Sivadas v. State of Kerala and other connected matters 

Citation: 2023 LiveLaw (Ker) 57 

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