CHHAYA RAJARAM PAWAR Vs. RAMA NAMA PAWAR

JUDGEMENT

(1.) HEARD Mr.Bandiwadekar for petitioner and Mr.Salvi, APP for State. This writ petition is filed by the accused challenging the order of conviction recorded by the Courts below and convicting her for offence punishable under section 500 of lPC i.e. for defamation and the sentence of fine of Rs.2000/- in default to suffer RI for three months. Out of the fine amount of realised, a sum of Rs.1500/- was directed to be paid to the complainant.

(2.) BRIEF facts leading to this petition are as follows: The respondent No.1 complainant had filed Criminal Case No.2723 of 1983 against the petitioner as accused No.2 and her husband as accused no.1, since acquitted, in the Court of JMFC, Khadki, Cantonment for the offence of defamation under Section 500 of lPC. The complainant is the paternal uncle of the husband of the petitioner. The complaint was that the petitioner had written in her own handwriting four letters being Exhibits Rs.41' to Rs.44' addressed to the Respondent No.1-complainant making defamatory statements. In letter Exhibit Rs.41' it is stated that the brother of the wife of the complainant used to stay in the door of the complainant's wife as pet dog and that his wife had earned the property by doing the business of money lending and was also earning by stealing. It was further alleged in the said letter that the complainant used to commit thefts in his company where he was working. In the letter (Exhibit Rs.43') it was alleged that the complainant used to keep his sister-in-law alternately for one year and that the mother of the complainant used to cohabit with several persons. In the letter (Exhibit Rs.44') it was alleged that the complainant and his wife collected property by committing thefts. The witnesses were examined on behalf of the complainant and the trial court also compared the admitted signature and the handwriting of the petitioner with the disputed signature and handwriting. It was not the defence of the petitioner that the allegations made in the defamatory letters were true. The trial Court, therefore, convicted and sentenced her to pay a fine as stated above. The accused No.1, who is the husband of the petitioner, was however acquitted.

(3.) THE only contention raised in this petition by Mr.Bandiwadekar on behalf of the petitioner is that the lower court should not have himself compared the disputed handwriting with the admitted handwriting of the petitioner-accused and come to its own conclusion. Section 73 of the Evidence Act no doubt empowers the Court to compare disputed handwriting with the admitted handwriting. However, the Supreme Court has time and again deprecated the practice of the Courts taking upon themselves and venturing to give their own opinion as regards the disputed handwriting after comparing it with the admitted handwriting. In the case of State (Delhi Admn.) v. Pali Ram reported in AIR 1979 SC 14 the Supreme Court has observed in para 29 that although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should not, as a matter of prudence, base his finding solely on comparison made by himself but to obtain the opinion and assistance of an expert and thereafter make use of the finding of his own comparison. In that case the Supreme Court ultimately directed the lower Court to send the writing so obtained to Senior Government Handwriting expert for comparison with the disputed writing and then examine the handwriting expert as a witness. The said view was reiterated by the Supreme Court in the case of State of Maharashtra Vs. Sukhdeo Singh and anr. reported in JT 1992 (4) SC 73. In that case the Supreme Court had observed that the Court should be extremely slow in venturing the opinion on the basis of mere comparison. Next Mr.Bandiwadekar referred to the recent decision of the Supreme Court in the case of O.Bharathan Vs. K. Sudhakaran reported in AIR 1996 SC 1140 wherein the Supreme Court reiterated its decision in Pali Ram's case (supra) observing that the High Court was not right in brushing aside the principle laid down by the Supreme Court in Pali Ram's case on the ground that it was not a criminal case.