IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1556 OF 2017 BETWEEN:
Mrs.Tabasum Sajjad Wife of Syed Sajjad Ahmed Saleh Aged about 48 years No.18, Cunningham Road Bengaluru – 560 052 Represented by GPA Holder and husband Mr. Syed Sajjad Ahmed Saleh. .. Appellant (By Sri. Vachan Gowda, Advocate for Sri. Dhananjay Joshi, Advocate) AND:
Mr. H. Diwakar Shetty Son of late Mahabala Shetty, Aged about 63 years, No.35/1, 1st Cross, Chowdaiah Block R.T. NAGAR, Bengaluru. .. Respondent (By Sri. A. Nancy Prince, Advocate) This Criminal Appeal is filed Under Section 341 Cr.P.C praying to set aside the order dated:23.08.2017 issued by the III Additional City Civil and Sessions Judge, Bengaluru (CCH-25) in Crl.Misc.No.889/2016 and to direct the Hon'ble Trial Court to do the acts stipulated in sub-clauses (a) to (e) of Sec.340 of the Criminal Procedure Code.
This Criminal Appeal coming on for Admission this day, the Court delivered the following:
JUDGMENT The appellant has preferred this appeal challenging the order dated 23.8.2017, passed by the learned III Addl.City Civil & Sessions Judge, Bengaluru City (CCH-25), (hereinafter for brevity referred to as `trial Court), in Misc.No.889/2016, wherein the Miscellaneous Petition filed by the present appellant under Section 340 of Code of Criminal Procedure (hereinafter for brevity referred to as `Cr.P.C.’), came to be dismissed.
2. The summary of the case of the appellant in the trial Court was that the appellant, as a plaintiff, had filed O.S.No.7677/2007, in the trial Court for ejectment and for damages against the respondent, which, after trial, came to be dismissed on 19.9.2016. Against the said finding, the appellant is said to have filed a Regular First Appeal in the lower Appellate Court in the year 2016. The said Regular First Appeal is still said to be pending.
3. In the Original Suit, the respondent, as a defendant, has denied the averments made by the plaintiff. The defendant has also denied his signature on the alleged letter dated 5.1.2007. The said document was marked at Ex.P-11. Since the defendant did not admit his signature on the said document alleged to have been written by him, the same was referred to handwriting expert for his opinion on the signature. The disputed signature along with specimen signature were said to have been examined by the expert and he is said to have given his report stating that the disputed signature tallies with the specimen signature. However, the suit of the plaintiff came to be dismissed on its merits.
4. Thereafter, the plaintiff filed the petition in the same Court under Section 340 of Cr.P.C. read with Section 151 of Indian Penal Code, accusing the respondent of committing an offence of perjury by giving false evidence and denying his signature at Ex.P-11(a).
5. After hearing both side, the trial Court has dismissed the said petition with an observation that the mere opinion of handwriting expert is not final in its nature and it is only a mere opinion, but, it is the conclusion of the Court that matters. Since the Court has not concluded in favour of the plaintiff, the petition fails. It is against the said finding of the trial Court, the plaintiff has preferred this appeal.
6. Learned counsel for the appellant vehemently submitted that when the expert after comparing the signatures has opined that the disputed signature was that of the respondent/defendant, the trial Court ought not to have dismissed the petition.
7. A perusal of the material placed before this Court in this appeal and from a perusal of the impugned order, it can be noticed that the appellant, as a petitioner in the trial Court, had not produced the alleged letter at Ex.P-11 for the verification of the Court, upon which, she is solely relying upon. The opinion of a handwriting expert would be only his opinion, but, ultimately it is for the Court to decide whether the disputed handwriting is that of the person who is alleged to have written/signed.
8. Admittedly, the expert who is said to have given his report was not examined as a witness. As such, the respondent had no opportunity to cross-examine the expert, on whose opinion, the petitioner was solely relying upon.
Lastly, it is an undisputed fact that finding of the trial Court in the Original Suit has not reached its finality since the judgment passed in the said Original Suit is said to have been challenged before the first Appellate Court by filing Regular First Appeal. That being the case, when Regular First Appeal is since said to be pending, the finding regarding the disputed signature cannot be said to have reached its finality.
For these reasons, I am of the opinion that the Miscellaneous Petition No.889/2016, filed by the petitioner in the trial Court was premature and that the finding of the trial Court in dismissing the said petition does not warrant any interference at the hands of this Court.
As such, the Appeal stands dismissed at the stage of admission as devoid of merits.
Sd/- JUDGE bk/