Loops & Whorls Forensic and Legal Services Pvt. Ltd

LALIT POPLI V. CANARA BANK AND ORS.

AIR 2003 SC 1796, 2003 (3) CTC 494

Miss Vanshika Gupta

1st year LL.B

Symbiosis Law School-Pune

COURT: Supreme Court of India

CASE NO.: Civil Petition No. 3961 of 2001

APPELLANT: Lalit Popli

RESPONDENT: Canara Bank and Ors.

DATE OF JUDGMENT: 18/02/2003

BENCH: Shivaraj V. Patil and Dr. Arijit Pasayat, JJ.

BACKGROUND OF THE CASE

In October 1985 when Lakshmi Commercial Bank merged with Canara Bank, the appellant was the employee of the former bank and upon merger his services also transferred. He was working as a clerk in the Deen Dayal Upadhyay Marg branch of New Delhi and was transferred to the AIWC extension of that branch. A complaint was lodged against him by a customer, S.V. Deshpande, for unauthorized withdrawal of Rs. 1.07 lakhs from the account. Lalit Popli was served with a charge sheet along with imputation of misconduct as a result of an internal investigation. The charge sheet stated that the withdrawal took place using 5 cheques and handwriting expert, V.K. Shkhuia has opined it to be appellants’ handwriting on the cheques endorsed from the account. Also, an inquiry officer was appointed and handwriting expert Shri V.K. Sakhuja’s testimony was tendered along with other witnesses. Employee’s further request to cross-examine the handwriting expect was rejected and based on the findings of the Enquiry Officer and written statements submitted, the order of dismissal was cased. He was, therefore, held liable for gross misconduct under Chapter-XI- Regulation 3 Clause (i) of Canara Bank Service Code and Chapter-XI- Regulation 3 Clause (m) of Canara Bank Service Code. Upon rejection of his appeal by the prescribed appellate authority, the appellant challenged the findings that resulted in his dismissal order by filing a petition in writing to the High Court.

FACTS OF THE CASE

As there is no material evidence and the entire case rested upon mere suspicion, the main plea put forward before the learned Single Judge was that the decision to dismiss the appellant must not have rested only on the opinion of the handwriting expert. Taking into consideration all the material shreds of evidence, the learned Single Judge concluded that the Enquiry Officer’s findings were erroneous and V.K. Sakhuia’s, the handwriting expert, the evidence is no evidence because of the adverse remarks made against him in the previous three cases. Hence, he was not a competent person to speak about handwriting or fingerprints. Additionally it was held that that the bank-framed charges did not have validity in law. The inquiry officer’s findings against the complainant are not based on the facts, and thus the order issued by the disciplinary authority cannot be upheld. The disciplinary authority’s order is therefore absolutely unconstitutional and cannot be maintained. The Division Bench, however, observed that the Learned Single Judge was not justified to interfere with conclusions arrived at by the disciplinary authority while exercised Article 226 of the Constitution as under Article 226, the High Court does not act as an appellate authority. Therefore, the judgment of the High Court is under challenge.

ISSUE BEFORE COURT

High Court held that the employee was in question was not a convict and therefore acquitted him and no action of disciplinary inquiry could be taken against him as there were no sufficient grounds to prove the guilt beyond a reasonable doubt. However, the Supreme Court turned this judgment and held the employee liable. Therefore, where the methods employed by the Supreme Court appropriate, and were the employee liable for disciplinary action?

ARGUMENTS BY APPELLANT

• One of the major arguments put forward by the counsel was that since there was no material evidence to hold the appellant liable, the appellant was denied fair play.
• Also, because of the past 3 cases, the credibility of the handwriting expert was in question and hence he was not a competent witness and his opinion had no evidentiary value. If such evidence is ignored, there stands no other material to prove allegations of misconduct against the appellant.
• The report presented by Forensic Science Laboratory during the initial investigation did not point out any material evidence against any employee and also, employees were denied the opportunity to submit his reply as regards the inquiry report.
• Another argument put forward was that the handwriting expert’s study was full of contradictions and he erroneously drew the conclusion about similarities of handwriting in the document at issue and the signatures accepted.
• The last argument was that the employee’s constant request to handover the case to Central Bureau of Investigation as he was assured that the officials were bent upon dismissing him from service for union activities, be represented by an advocate and lastly, the supply of certain documents were turned down thereby causing prejudice.

ARGUMENTS BY RESPONDENT

• The foremost argument put forward by the learned counsel was that the scope and ambit of judicial review were rightly considered by the Division Bench for disciplinary proceedings.
• According to the respondent, the only area of dispute was acceptability of report of a handwriting expert as the denial of an advocate’s representation was justified because the presenting officer was not a lawyer or a citizen with legal experience and accepting of handwriting expert’s report without further corroboration was no proposition in law. There was no truth in the argument that there was prejudice in declining to allow a lawyer to represent him.
• Another argument was that, concerning prejudice, no mention was made before the High Court and the employee, by taking the plea of absence of criminal intent, accepted that he committed careless mistakes.
• Further, the learned counsel concluded that officials were justified in making critical comments by stating that a bank employee has to be alert and any abnormality must have been detected. Therefore, the plea that many transactions took place on a particular day lacked materiality. Also, the unusual endorsement of Rs. 50,000 must-have aroused suspicion and the customer is an advocate could not have spelled ‘signature’ wrong.
• Lastly, it was argued that the handwriting expert’s study was straightforward and cogent, and had specifically pointed out the areas of similarity between the disputed document and the accepted writings to illustrate how the forgery author was the employee.

RULES APPLICABLE

• Article 226 of Constitution of India, 1950
• Evidence Act, 1872- Section 45, 47 and 73

JUDGMENT

Taking into consideration facts of the case and rules applicable, the Supreme Court of India concluded that the Division Bench was right in upholding the order of dismissal by setting aside the learned Single Judge’s order. To arrive at this conclusion, the learned judge stated the reasoning that even though the expert had adverse remarks in the past, it does not affect this credibility in the present and there was no infirmity noticed in the report of the expert. Also, for disciplinary proceedings the technical rules of evidence have no relevance, and ‘preponderance of probabilities’ along with some other material on record is enough for the court to conclude. The court also agreed with the argument by the respondent that the employee must not have skipped the mistake in the spelling of ‘signature’ as a bank employee is supposed to be trained and equipped to notice such glaring mistakes. Lastly, it was held that the High Court under Article 226 of the Constitution of India does not act as an appellate authority and hence had no power to review the case.

FORENSIC RELEVANCE OF THE CASE

While the collection of evidence involves detectives and law enforcement agencies, whether physical or digital, it is forensic science that deals with the analysis of such evidence to establish facts that are admissible in the court of law. The legal system widely understands the role that forensic evidence plays in criminal offender trials. This is because there isn’t much room for bias or discrimination by using scientific techniques and methods.

As in the present case the opinion of the Handwriting Expert was a major matter of debate, Section 45, 47 and 73 of the Evidence Act, 1872 have been used to draw a judgment in the light of justice, equity and good conscience. More often than not the opinion of the third person is inadmissible as evidence but where the court requires an opinion of an expert in the field, an exception can be drawn.  Section 45 talks about such opinion of an expert. Section 47 however deals with the opinion of persons who are not experts but still their evidence is made admissible. In the present case, on comparing both the sections, the court concluded that the court is expected to satisfy itself in both cases by such means as are open to deciding that the opinion can be acted upon. Talking about section 73 of the act, it grants power to the court to compare handwriting, signature, or seal of the person who is in question. For the said purpose, the court may ask any individual presently there to write any word or figure to compare the same and come up with a conclusion. More often, section 45 and section 73 of the act are complementary to each other. Handwriting Experts’ findings need not be regularly corroborated. It is up to the court to determine whether or not to consider such uncorroborated evidence.

The present case is about the forge signatures done by the employee of the bank which led to the withdrawal of Rs. 1.07 Lakhs from the account of a customer. The court was very much within its powers to seek the opinion of the Handwriting Expert and later on draw its conclusion based upon the facts of the case. Therefore, when the expert evidence is not there, the court has the power to compare writing or signatures and decide the matter. The court finds no challenge to the expertise of V.K. Sakuja as adverse remarks from the past does not affect the present credibility of him and no infirmity in the report was noticed.

Hence, it is proved with the help of the above-stated arguments that the present case was very much relevant from the forensic point of view. However, Evidence may be valid but may still not be admissible. The expert testimony, therefore, constitutes, at best, information that may enable the Court to draw a reasonable conclusion.

AUTHORITIES QUOTED IN THE JUDGEMENT

To decide the present case, the Learned Supreme Court Judge took into consideration the following authorities as it deemed to be relevant for the issue involved in the case:

• Murari Lal v. State of Madhya Pradesh

In this case, the court held that if the evidence of the expert is not available, the court is very much within its powers to compare the writing itself and decide the matter accordingly.

• State of Rajasthan v. B.K. Meena and Ors.

The Supreme Court of India, in this case, held that the standard of proof, the mode of inquiry, and the rules governing the inquiry and trial are conceptually different.

• C. Chaturvedi v. Union of India and Ors.

The court in the above-mentioned case held that the extent of judicial review has been demonstrated by noting that the Court’s review is a decision-making procedure and if the disciplinary authority’s decisions are based on any facts, the Court or the Tribunal can not re-appreciate the facts and substitute its own decisions.

• S. Saini v. State of Punjab and Ors.

The court held that the spectrum of intervention is very restricted and should be exercised within the limits laid down and it is was the state that the inquiring authority is the sole judge of the truth so long as there is any legal proof to substantiate the claim, and the adequacy or reliability of the facts is not a question that can be required to be investigated informal proceedings before the trial.

ANALYSIS OF THE CASE

The present case entirely revolves around the opinion of the handwriting expert, as one of the major arguments of the petitioner was that the opinion could not be considered as the expert had the adverse remark in the past that questioned his credibility. An expert is defined as a person who by his training and experience has acquired the ability to express an opinion. An expert opinion is mainly intended to help the court conclude. But expert opinion cannot form the sole basis of the accused’s conviction unless something appears inherently defective, the court cannot substitute an expert’s opinion. Also in V. Kishan Rao v. Nikhil Super Speciality Hospital & Anr, the court held that expert testimony is needed when the court determines that the case is complicated or that it cannot be resolved without expert opinion assistance. Taking that into consideration the court was well within its power to undertake the opinion of the expert even though the expert had adverse remarks against him log time back. But in the State of Himachal Pradesh v. Jai Lal and Ors., J. D.P. Mohapatra concluded that the report that an expert submits does not immediately go into court. He must be questioned in court as a witness, and face cross-examination. The judgment in question nowhere mentions that the handwriting expert was called in by the learned judge for cross-examination as a witness to make his report admissible in the court. This poses a question on the admissibility of the report and ultimately on the order of dismissal of the employee from the services.

Generally no person can be asked to incriminate himself. The Fifth Amendment to the Constitution of the United States states that no person shall be compelled to be a witness against himself. By applied this right to civil and criminal proceedings, the preceding provision has been given a broad connotation by judicial interpretation. For England, except for a few cases, no witness may be required to answer any question or produce any document which appears to expose the witness (or the witness’s spouse) to any criminal charge, penalty, or forfeiture. Taking the Indian Law into question, is it justified to ask a person to produce a specimen of his handwriting for an investigation under Section 73 of the Indian Evidence Act, 1872, and violate Article 20(3) of the Indian Constitution? The court in State of Bombay v. Kathi Kalu Oghad considered these questions and held that asking a person to give his specimen handwriting or signature, or impressions of his finger, palm or foot to the investigating officer does not violate Article 20(3) of the Constitution. Though they come under the meaning of evidence is the broader sense, they are not violative because these specimens cannot change or alter its intrinsic character by concealment of its true nature. Therefore in the present case, for the court to compare the handwriting, the specimen asked was well within the powers of it and the petitioner could not have denied.

LAW COMMISSION REPORT

The Law Commission of India, in its 185^th report, talked about the definition of an expert as under Section 45 of the Evidence Act. The idea was innovative in that it aims to promote a culture of dependence on the facts of particular experts in their fields. It recommended inserting ‘footprints, palm impressions or typewriting, as the case may be’ in section 45. Later Subsequently experts dealing with fingerprints, palm impressions, typewriting, international law, commerce, inventory of persons or animals, etc., were included, thereby allowing the courts greater scope to rely on an expert proof.

RECOMMENDATION AND SUGGESTION

• Qualification of the Expert– The position of expert in the Indian Law is different than that in the English Law regarding the qualification of the expert. Under Indian Law, no additional qualifications are required to be an expert apart from having to possess particular knowledge. But under the United States law, it is the trial court who decides as to who can be an expert and not the appellant court as it is unchallengeable on the appellate stage. This makes the scope of section 45 of the Evidence Act limited to the extent of the subjects mentioned in the section.  Therefore, such a scope should be widened by making the appropriate changes to the act.
• Amendment to the definition of Document– It is observed that the term now encompasses all forms of documents like electronic records following the amendment of the Act and introduction of sections 65A and 65B. However, to take account of recent developments in the field of technology and law, and more specifically, when the document was more explicitly defined under section 3(18) of the General Clauses Act, the current meaning had to be amended.
• Upgraded Technology– In the present scenario, the equipment used by the experts to match the handwriting is very outdated and thus raises questions and doubts in the mind of the people. Therefore, the Indian Government must import the upgraded technology for the outside nations to reach a better conclusion and for the advancement of the Indian Judicial System.
• Availability of Equipment– With the growing number of case laws in the Indian Judicial System and the availability of limited equipment with the forensic experts lead to delay in the report which further leads to delay in the delivery of justice in the society. To overcome this problem, the government must make sure that the experts are well equipped with the required number of instruments required by them and give their maximum for the speedy delivery of reports.

CONCLUSION

Expert opinion is admissible as evidence and is an exception to the law of hearing the claim. If the case requires any technicality and is not capable of forming an opinion on other matters, then the opinion of an individual is admissible, who is specially qualified in that area. However, the expert proof is not definitive. The expert ‘s opinion is not binding on the judge and so the court can refuse to rely on such an opinion. Any corroborating or supporting evidence relating to the matter is required. Therefore the Expert opinion law is not systematic and, however, this view is too poor as a witness to contribute to the prosecution of the accused. To be termed an expert, some guidelines should be made to ensure the reliability of the opinion of the expert, his knowledge, experience, and qualification in that field as the expert opinion becomes the court opinion if accepted by the court and may lead to wrong decisions if the experts are not competent enough.

REFERENCES

Cases Referred

B.C. Chaturvedi v. Union of India and Ors. 1996 ILLJ 1231 SC 6

Babli v. State of Orissa AIR 1974 SC 775 4

Bal Krishna Das v. Radha Devi AIR 1989 All 133 6

Dayal Singh v. State of Uttaranchal, 2012(3) RCR (Criminal) 949 6

Lalit Popli v. Canara Bank and Ors. AIR 2003 SC 1796 4

Mahallakshmi v. State of To No, 2012(6) RCR (Criminal) 100 6

Murari Lal v. State of Madhya Pradesh 1980 CriLJ 396 5

R.S. Saini v. State of Punjab and Ors. 1999 IILLJ 1415 SC 6

1. Rajendran v. State, 2011(4) Madras Law Journal (Criminal) 537 6

State of Bombay v. Kathi Kalu Oghad AIR 1960 SC 1808 7

State of Himachal Pradesh v. Jai Lal and Ors., (2000) 2 LRI 982 SC 6

State of Rajasthan v. B.K. Meena and Ors. 1997 ILLJ 746 SC 5

1. Kishan Rao v. Nikhil Super Speciality Hospital & Anr. Civil Appeal No. 2641 of 2010 6

Statutes

Indian Evidence Act, 1872, Section 45 4

Indian Evidence Act, 1872, Section 47 4

Indian Evidence Act, 1872, Section 73 5

BIBLIOGRAPHY

Other Authorities

Law Commission, Review of the Indian Evidence Act 7

Books

Andrew Choo, The Privilege Against Self-Incrimination and Criminal Justice 7

Articles

Fifth Amendment, Legal Information Institute 7