Monday, 9 December 2013

Opinions of Experts on Genuineness of Handwriting

Under Section 45 of the Evidence Act 1950 the opinion of a handwriting expert as to the genuineness of handwriting or signatures are expressly admissible on the grounds that this is a relevant fact. The evidence of a handwriting expert is therefore both admissible and relevant. Meanwhile, Section 47 of the Evidence Act 1950 provides for the admissibility of the evidence of a witness on the genuineness of handwriting where that witness can be said to be acquainted with the person stated to have written the disputed handwriting or signature. And Section 73 of the Evidence Act 1950 allows the court or a witness to compare a disputed signature or handwriting with the genuine writing of the alleged writer. However all three sections prescribe great caution in undertaking such an exercise. 

        In the case of State (Delhi Administration) v Pali Ram,[1] Sarkaria J. considered the various sections of the Indian Evidence Act which contains provisions similar to that of Malaysia. The judge held that the Indian Evidence Act recognizes two direct methods of proving the handwriting of a person. First, by an admission of the person who wrote it and secondly, by the evidence of some witness who saw it written. 

           These are the best methods of proof, however, there are three other modes of proof by opinion. They are, by the evidence of a handwriting expert (Section 45), by the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (Section 47) and last but not least, opinion formed by the Court on comparison made by itself. (Section 73)

           In an Indian case of Ishwari Prasad Mishra v Mohammad Isa,[2] the court held that evidence given by experts of handwriting can never be conclusive, because it is, after all, opinion evidence.

            Then, in the case of Public Prosecutor v Mohamed Kassim bin Yatim,[3] Hashim Yeop A. Sani J. (as he then was) said at page 66 that the evidence of the genuineness of the signature based upon the comparison of handwriting and of the opinion of experts is entitled to proper consideration and weight. However, the court confessed that it is of the lowest order of evidence or of the most unsatisfactory character. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence.

           In another Malaysian case, Dalip Kaur v Pegawai Polis Daerah, Bukit Mertajam,[4] the Supreme Court observed that it was trite law that evidence by a handwriting expert should be viewed with caution. But such evidence is entitled to be given proper consideration and weight in the context of the other evidence available to the court. 

             It is not proper to attempt making any conclusion on the genuineness of a signature in a document by comparing two similar handwritings without resorting to the opinion of a handwriting expert who is specialised in this field. The requirement becomes incumbent when the handwriting is in Chinese characters in which the Judge in question has no knowledge whatever (per Syed Agil Barakbah SCJ, Chu Choon Moi v Ngan Sew Tin at page 36).[5]

          There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it (Murari Lal S/O Ram Singh v State Of Madhya Pradesh).[6] The judgment made by the court in this case was then affirmed by Anuar CJ (Malaya) in a Malaysian case of Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai.[7] 

         As a conclusion, in order to test the veracity of the opinion of a handwriting expert, the court must apply its own observation to be admitted or proved writings and compare them with the disputed one, not to become a handwriting expert but to verify the opinion of the expert. The court has to satisfy itself on its own observation that it is safe to accept the opinion of an expert bearing in mind it is not conclusive. On the other hand, if the court after examining the disputed signature with the genuine signature also comes to the same conclusion as that of the expert, the court shall not be acting as an expert. (Nik Mahmood Bin Nik Mat v Chew Kam Leong)[8]

[1] AIR 1979 Supreme Court 14
[2] 1963 AIR 1728, 1963 SCR (3) 722
[3] [1977] 1 MLJ 64
[4] [1992] 1 MLJ 1
[5] (1986) 1 MLJ 34
[6] 1980 AIR 531, 1980 SCR (2) 249
[7] [1997] 3 MLJ 61
[8] [2011] MLJU 488

No comments:

Post a Comment