SOYSA v. SANMUGAM et al

071-NLR-NLR-V-10-SOYSA-v.-SANMUGAM-et-al.pdf


( 355 )
Present: The Hon. Sir JoGeph T. Hutchinson, Chief Justice, andMr. Justice Wood Benton.
1907.
November 4.
SOYSA v. SANMUGAM et al
D. G.t Colombo, 23,500.
Quia timet action—Action to have note declared forgery—Maintainability—Handwriting—“ Expert "—Value to be attached to evidence ofidentity of handwriting—Reasons for opinion—Questions of facttried by Judge without jury—Presumption. of correctnessHutchinson O.J.—I have known too many instances in whichexperts’opinion astoidentity of handwritinghave been provedto
be mistaken to accept them as anything more than a Blight corroboration of a conclusion arrived at independently, never so strongenoughas to turnthescale against a personcharged with forgery,
if the other evidence is not conclusive.
Wood Bbnton J.—Aquia timet action liesin Ceylon; andthe .
Courtswill, underproper circumstances, orderthe delivery up,or
the declaration of the invalidity, of instruments on which actionsat law might be brought*.
Wood Rbnton J.—On questions of fact and credibility thedecision of a Judge ought not to be interfered with, unless theappellant displaces the presumption, which arises in a case tried bya Judge without a jury, that it is right.
Shaik AM c. Jafferjee 1 followed.
Qualifications necessary »to constitute a person an " expert *'within the meaning of section 45 of the Evidence Ordinance (Ordi-nance No. 14 of 1895) and the value to be attached to evidence ofidentity of handwriting discussed.
A
PPEAL from an order of the Police Magistrate awarding theJudge of Colombo (J. Grenier, Esq.).
The facts material to the report appear in the judgments.
Bawa, Van Langenberg, and F. M. de Saram, for defendants,appellants.
H.J.C.Pereira,Sampayo,K.C.}H,A.Jayewardene^ and Elliott,
for the plaintiff, respondent.
”Cur. adv. vult.
November 4, 1907. Hutchinson C.J.—
This is dn appeal by the defendants from a judgment of theDistrict Court of Colombo. The piaintiff claimed a declaration thattwo promissory notes, one 5or Rs. ,25,000, dated March-21, 1906,and the other for Rs. 15,000, dated May 28, 1906,' were riot grantedby the first, defendant to the plaintiff, and that the endorsements
• i (1895) 3 N. L. R. 368.
( 35d )
1907. thereon purporting to be made by J. W. C. de Soysa as*the plaintiff sNovember 4. attorney are forgeries, and that the plaintiff is not liable on theHutchinson notes, and that the notes should be delivered to the Court to be dealtC,J. with by the Court as may seem necessary or expedient.
The issues settled for trial were: —
Is the endorsement on the note of March 21, purporting to
be that of the plaintiff through her attorney J. W, C.de Soysa, a forgery ?
Is either defendant ixi possession of a note dated May 28,
1906, for Rs. 16,000, signed by the first defendant, andpurporting to be made by him in favour of the plaintiffand to be endorsed by the plaintiff through her attorney
J.W. C. de Soysa ? and
If so, is the endorsement on the last-mentioned note a
forgery ?
The District Judge found that the endorsements on both the noteswere forgeries, and that the note of May 28 was and is in the posses-sion of the first defendant, and he entered judgment for the plaintiffas prayed.
The evidence taken at the trial included that of a witness namedCottle, who was called by the plaintiff, and compared some genuinesignatures of J. W. C. de Soysa with the signature endorsed on thenote of March 21, and also with some other similar signatures whichthe plaintiff alleged to be forgeries, but whose genuineness is not inissue in this action. The witness stated his opinion and his reasonfor it, that the signature on the note of March 21 was a forgery.This evidence was objected to by the defendants at the trial as in-admissible, because Cottle is not an “ expert ” within the meaning ofsection 45 of the Evidence Ordinance; and on this appeal they haveurged that the judgment ought not to stand, because the DistrictJudge accepted and was influenced by this inadmissible evidence.They also contend that the admissible evidence does not justify afinding that the note referred to in the plaint are forgeries.
Section 46 of the Evidence Ordinance, No. 14 of 1895, enactsthat when the Court has to form an opinion as to identity or genuine-ness of handwriting, the opinions on that point of persons speciallyskilled in questions as to identity or genuineness of handwriting arerelevant facts, and that “ such persons are called experts." Cottleis the Government Printer; in the course of his business, he has hadlarge experience in deciphering handwriting; and he saidp: ** I havebaleen a considerable amount of interest in handwriting. In a slightdegree I have ma*de a study of handwriting. I qnce gave evidence inCourt in the cfase of Cave v. Kreltszheirn, in which there was a question
of handwriting I was palled as an expert I have
studied handwriting in order to be able to study character from thehandwritingI have not advanced mty study very far in this
( 357 )
respectI have read no books on the comparison- of hand- 1007.
writing or signaturesMy interest in handwriting was partly November 4.
from the character point of view, and partly because I took an Hutchinsoninterest in deciphering difficult handwriting. ” It does not appear CJ.that he has ever in his life, except in the one case to which hereferred, been asked or has asked himself to form an opinion as towhether two writings were by the same hand (t.e., a question as to"identity"), or whether a writing purporting to be in the handof a particular person was in that person's hand (i.e., a questionas to " genuineness '*). I think that he is not an " expert " as•defined in section 45, and that his opinion was wrongly admittedin evidence.
By section 167 of the Evidence Ordinance the improper admissionof evidence is not ground of itself for a new trial or for reversal of adecision, if it appears that, independently of it, there was sufficientevidence to justify the decision.. So that it is necessary to considerwhether there was, independently of Cottle's evidence, sufficientevidence to justify the judgment under appeal.
But before entering on that inquiry I will first deal with an argu-ment which was strongly urged by the appellants, that the Judgeplaced so much reliance on Cottle's evidence that his opinion as tothe truthfulness or falseness of the other witnesses must have beengreatly influenced by it, and so his whole judgment was vitiated.
What, then, did Cottle's evidence amount to, and how far does itappear to have influenced the Judge in arriving at his verdict ? *
Cottle was the ninth witness called for the plaintiff. When hehad stated his qualifications, the defendants’ counsel objected to hisevidence on the ground that he was not an expert, but the Judgeover-ruled the*objection. The witness then stated that he had com-pared certain genuine signatures of De Soysa with some which werealleged to be forgeries, and said: "In my opinion the signatureswhich are alleged to be forged were not written by the same personwho wrote the genuine signatures." He then gave his reasons atlength, pointing out peculiarities in the different signatures. Oneof the signatures " alleged to be forged " was the endorsement on, the note of March 21; the others were signatures said by the plaintiffto be forgeries, but not proved or admitted to be so. ,
In his judgment the Judge first discussed the evidence of the two'principal witnesses, De Soysa and Sanmugam, and then that of thesecond defendant, and came to the conclusion that De Soysa’s storyon the main points at issue was true, and Sanmugam’s and Vella-samy’s false. After dealing with this part of the case in sixty-fourpages he (fomes to Cottle's evidence; he states #the opinion whichCottle had given; he says that he will not go minutely into Cottle's «evidence, and adds: " The reasons which Mr. Cottle has given insupport of every single proposition he has put forward to sustainhis ultimate conclusions appear to me to be convincing; but, in
1S07.
November 4.
Hutchinson
C.J.
( 358 )
addition to Mr. Cottle’s evidence, I bad my own senses to guide meas that evidence was being given; and it does rfot now appear to meto a difficult matter, with the whole case before me and with theassistance which Mr. Cottle has afforded, to say that the endorse-ment on P 1 (i.e. the note of March 21) is the work of a forger, who*has stamped his character as such on almost every line and strokeand curve of his work. …. Even if I have doubts as to theseendorsements being forged, and I have none, they have beeneffectually removed, not only by Mr. Cottle'6 evidence, but by whatI shall proceed to 6how were certain acts done by Sanmugam him-self almost contemporaneously with the making of the note forRs. 25,000 on March 21.” And he then passes on to other parts ofthe evidence.
The Judge, therefore, does not seem to have been greatlyinfluenced by Mr. Cottle's opinion, though he believes it to be quitesound. He says that the reasons given by Cottle appear convincing,and that using his own senses and with the assistance which Cottlehas given (meaning, I think, in pointing put the peculiarities in thedifferent signatures, which might otherwise have escaped the Judge'snotice), it is not difficult to say that the endorsement on the noteof March 21 is a forgery. But it certainly seems to me on readinghis judgment through that he had arrived at the same conclusionindependently of Cottle's evidence, and also that, when he came todiscuss Cottle's evidence, he did not accept Cottle’s opinion withoutexamination, but considered the reasons which the witness gave,and. tested them for himself by -using his own eyes and scrutinizingthe signatures.
The appellants contend that not only Cottle's opinion, but hisreasons also were wrongly- admitted; that the whole of his evidencewas inadmissible. By section 73 of the Evidence Ordinance, inorder to ascertain whether a signature or writing is that of the personby whom it purports to have- been made, any signature or writingadmitted or proved to have been written by him may be camparedwith the one which is to be proved. Does this mean that the com-parison is to be made by the Judge or jury without any assistance,except from the counsel engaged in the case; or may a witnessassist by pointing out likenesses or differences in the writingswhich are to be compared ? If a witness may not do so, then thatpart of De Soysa’s evidence in chief in which he points out differencesbetween his genuine signature and the impugned signature was alsoinadmissible; he is not giving his reasons for his “ opinion ” whichwould be admissible under section 51 if .his opinion was admissible ;he is not giving an opinion at all; he is stating what he says he knowsto be a positive fact, about which he could not be mistaken, that hedid not endorse the note of March 21, and having done so he statesother facts which he says he has observed, namely, some differencesin the signatures. I do not think that such evidence is inadmissible.
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Cottle states certain things—which he says are facts—which he has 1907.observed, such as that certain lines ar firm or shaky, that others -Afaramfrer 4.are thick or thin, or uniformly or not uniformly thick or thin, that HuroHiNsotrcertain dots or marks aro parallel or not parallel to each other or tothe edge of the paper. The Judge, when those things are pointedout, can see for himself whether they are facts or not.
Whether the reasons given by this witness are of any value or notis another matter. My own opinion—though I am perhaps pre-judiced as to this by my belief that comparisons of handwritings area very untrustworthy guide—is that the likenesses and differencespointed out by Cottle in this case are of no value at all. The•differences between De Soysa's genuine signatxlire and his allegedsignature on the note of March 21 do not carry to my mind theleast particle of conviction, or even of opinion that the signaturesare not written by the same hand.
Tlie appellants say that the Judge, having accepted Cottle'sopinion as correct and his reasons as convincing, must have beeninfluenced thereby in forming his opinion on the credibility ofDe Soysa and of the defendants; that when he sat down to write hisjudgment he did not really proceed first to make up his mind betweenDe Soysa's story and that of the defendants, without allowing hisjudgment on that point to be influenced by his knowledge of Cottle'sevidence. How would one expect a Judge to proceed in consideringhis judgment in such a case as this, assuming that the witness whogave evidence, such as Cottle’s, was a real expert, the best in theworld ? My own procedure certainly would be to make up mymind first, entirely uninfluenced by the expert's opinion, whether Iwas quite satisfied that the evidence for the plaintiff was true on the.main points in issue. I should then be glad if the opinion of theexpert agreed witba my conclusion, though I should not be shakenif it did not. I have known too many instances in which experts'opinion as to identity of handwriting have been proved, to be mis-taken to accept them as anything more than a slight corroborationof a conclusion arrived at independently, never so strong enough asto turn the scale against a person charged with forgery, if the otherevidence is not conclusive. I see, however, that the Judge whotried this case attaches a greater value than I shojuld do to theevidence of the handwriting. But I think that he would follow thesame course of procedure, in forming his opinion on the wholecase, as I should have done : and it seems to me that his. judgmentshows that that is the course which he actually did follow. And Ithink, therefore, that we ought not to set aside his judgment on* the.ground thftt he was influenced by Cottle's evidence ; we must,examine the evidence apart from Cottle's, and consider whether itis sufficient to justify the judgment.
The Judge first deals with the events of May 28, which he says
refer Jo the most critical part of this case, ” and he accepts De
( 360 )
1907.
November 4.
Hutchinson
O.J.
Soysa’s version. This he does, necessarily, without any help fromcomparison of signatures, because the note which the defendantssay was endorsed by De Soysa on that day has not been produced,and, as I have said, the course which he would naturally take, andwhich it seems from his judgment that he did take, would be todecide on the genuineness of that note first without being influencedby Cottle*s opinion as to the signature on the others.
The Judge then comes to the note of March 21. Having alreadyfound that the note of May 28 was a forgery, he would inevitably, asbetween De Soysa and Sanmugam, be disposed to believe De Soysaas to the earlier note and to disbelieve Sanmugam. But as to thisearlier note there was also the evidence of Vellasamy, that he showedit to De Soysa on March 21, and that De Soysa then said that it was" all right. " The Judge did not believe Vellasamy.
Some reasons have been pointed out for questioning the Judge’sconclusions. First, De Soysa admits that he acknowledged toShand that the signatures on some other notes were his, and yet henow denies that they are his. The Judge apparently thinks, withgood reason, that- those signatures or some of them were really his,and that he lied when he said that he had never given Sanmugamany blank note with his endorsement on it. And, secondly, it seemslikely that De Soysa-lied when he said that he did not know Vella-samy and had never seen him. The Judge does not specially referto this second point in his judgment. It is urged that when hefound that De Soysa had lied on these two points, he ought not tohave believed him on the main question at issue in this action.Thirdly, it is said that the Judge was mistaken in the reason whichhe gives for disbelieving Vellasamy. He said that Vellasamy hadgiven false evidence fn a previous case tried before the same Judgein 1903. I have read through the record in thsff case. Vellasamysued then on a note which he said the defendant in that’case hadgiven him; the defendant alleged that he signed that note in blank—which seems to be quite a common practice in this country—andgave it to the firm of r‘ P.M.R.M. ” as security, and that he after-wards satisfied the note, and that Vellasamy was the kanakapulleof " P.M.R.M. ” Vellasamy swore that he never was kanakapulleof " P.M.R.M1., ” and did not know whether the defendant haddealings with that firm, and that he, Vellasamy, was the principalof the firm “ R.M.P.L., ” which was the name in which he sued inthat action. In the present action he calls himself “ P.M.R.M.Vellasamy, ” and swears that he is a paid servant of that firm, andhas been so for the last twenty-two years; that he does noi^ rememberstating in thfe former action that he never was kanakapulle of thatfirm, or that he did not know if the defendant had dealings with thatfirm, or that he stated that he was the principal of “ R.M.P.L.,and added:“ If I stated so, it would not be true but in cross-
examination he said that he was a principal in the firm of “ R.M.P.L.
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,with two partners. It seems to me that in the 1903 action he mis-led the Judge into believing that he had no connection with the firmof “ P.M.R.M, but I do not think that he could be convictedof perjury on the ground of his evidence in the two cases beingcontradictory.
After having read through the whole of the evidence, apart fromCottle's, and having heard the criticisms on it, and taken intoaccount the considerations to which I have referred, but withouthaving had the advantage of seeing and hearing the witnesses, Ithink that I should have arrived at the same conclusion as the Courtbelow with regard to the note of May 28; on the evidence recorded,apart from Cottle’s, I should have found that the note was a forgery.I cannot explain the conduct of De Soysa and Sanmugam on thetheory put forward by the defence, or in any other way, except bybelieving that the note was a forgery. Being satisfied on that point,I should have found that the note of March 21 was also a forgery.
I do not suppose for a moment that Vellasamy knew that the noteof March 21 was forged. Nor do I think that the finding that thetwo notes impugned in this action were forgeries necessarily involvesthe conclusion that the other notes now alleged by De Soysa to beforged are also forgeries. De Soysa apparently impugns them, notbecause he remembers that he did not sign them, but because of thesupposed differences between the signatures on them and his genuinesignature; and no Judge would declare them-to be forgeries on thatevidence alone, especially if it is true that De Soysa had sometimesgiven Sanmugam notes signed by him in blank.
It is said that if Sanmugam had any such blank notes in his posses-sion he would have had no necessity to forge the two notes impugnedin this action. But it seems that he could not have got any Chettyto take a note fof^such large sums as Rs. 25,000 and Rs. 15.000 onDe Soysa's signature alone.
In my opinion the judgment appealed from should be affirmed,with costs to be paid by the defendants.
Wood Renton J.‘—
This case has, on both sides, been argued before us on appeal withan earnestness and an ability in all respects worthy *of its -difficultyand importance. I will not recapitulate the facts. But I proposeto deal seriatim with every point that has been seriously pressedupon us by counsel in arguing the appeal.
In the; appellant's answers to the respondent's plaint it is pleadedthat the facts alleged disclose no cause of action. No issue *W£S,however, framed on this „plea, and although wfe were informed atthe Bar that it was argued in the District Court, <and it is taken«again in the petition of appeal, I do not think that we can entertainit now. It is settled law that a quin timet action—the category to
1907.
November 4.
Hutchinson
O.J.
. ( 80S )
which this case belongs—will lie in Ceylon; and I suppose that, likeCourts of Equity in England (Cooper v. Joel1), the Courts of thisColony wills under proper circumstances, order the delivery up, orthe declaration of the invalidity of, instruments on which actions atlaw might be brought. If the appellants meant seriously to urgethat here the circumstances are not such as to justify a quia timetaction, they should have asked an issue and a formed ruling by the-learned District Judge upon the point.
The fact that the respondent has proceeded by way of quia timetaction of course throws on her the burden of proof, and we have tosee that that burden has been duly discharged. I do not think, how-ever, th&t we should be justified in treating this action as if it were a,criminal prosecution. It is a civil case, coming before us on appeal,mainly on questions of fact and of credibility, and by the settledjurisprudence of this Court (8kaik Alii v. Jafferjee2) the decisionof the learned District Judge ought not to be interfered with, unless-the appellants displace the presumption-r-which arises, where a casetried by a Judge without a jury comes before the Appeal Court—that it is right.
The next point that I desire to touch upon is the evidence ofMr. Cottle. I am unable to agree with the learned District Judge that-Mr. Cottle comes within the definition of an “ expert ” in section 45of the Evidence Ordinance. I am very doubtful whether the reasonsfor his opinion were admissible under section *73; and in any eventI do not think that any conclusion adverse to the appellants inregard to the promissory note of March 21, 1906, ought, on the*merits, to be drawn from them. I proceed to state the grounds ofthese findings. Under section 45 of the Evidence Ordinance no*person is an “ expert ” unless he is “ specially skiKed ” in thescience, art, or kindred department of knowledge as to which hecomes forward to testify. .In the present case Mr. Cottle’s opinionis tendered on a question as to the genuineness of certain hand-writing. To the formation of a correct opinion on such a subjectsome degree at least of “ special skill ” in the comparison of hand-writings is, I think, essential. What are Mr. Cottle’s qualificationsin this respect ? He has gone through every stage of service in the*Government Printing Department—Proof Reader, Composer, Con-troller of Stores, Assistant Government Printer, and now Govern-ment Printer. In some of these capacities he has had abundantopportunities of becoming an expert decipherer of manuscripts. Butit has been no part of his official work to compare handwritings forth$. purpose of ascertaining their identity or genuineness. *It is, ofcourse, unnecessary that expert knowledge should be So gained'.
cTo that extent,•Reg. v. Silverlock3 must, I think, be taken to be adecision applicable in Ceylon. I am merely recording the fact that
i (im) 27 Beav. 313; 1 De G. F. & J. 240.2 (1895) 3 N. L. R. 368-
(1894) 2 Q. B. 766.
1907.
November^.
'WoodRenton J.
( 363 )
Mr. Cottle’s qualifications as an expert have not been professionallyacquired. From what other sources have they been derived? Hehas studied handwriting in order to be able to read character fromit. He gave evidence as to whether a particular handwriting wasdisguised in the case of Cave v. Kreltszheim, It appears, however,from the record that in that case his evidence was received subject toan objection as to its admissibility, and that, in spite of Mr. Cottle'sevidence for the prosecution, the District Judge and his assessorsacquitted the prisoner. Mr. Cottle admits, however, that he hasnever read a book on the comparison of handwriting, and it does notappear that, prior to the case of Cave v. Kreltszheinv, he had evercompared a disputed writing with a genuine one with a view toforming an opinion on the question of the identity of their author-ship. I do not think that Mr. Cottle can be said to be an “ expert ”in the comparison of handwritings within the meaning of section 45of the Evidence Ordinance. Mr. H. J. C. Pereira, in his argumentfor the respondent, relied on the case of Beg. v. Silverlock,* as anauthority in favour of Mr. Cottle's competency. In my opinion itcannot be so regarded for two reasons. In the first place, althoughneither of the reports to which I have access here [(1894 .) 2 Q. B.766; 63 L. J. M. C. 233] is clear upon the point, it does seem as ifthe witness whose evidence was accepted in that case had had someparticular experience in the comparison of disputed handwritings.As I have already said, the obiter dictum for which the case isreported, viz., that any person who is peritus in handwriting would bean expert, " even if his* skill has not been acquired in the way ofhis business or profession, would be as good law in Ceylon as inEngland. In the second place, even if the-decision in Reg. v. Silver-Jock went further than I think it does, and involved the propositionthat a witness who has merely had to decipher handwritings is com-petent to pronounce an expert opinion on a question as to identityor genuineness as the result of a comparison of handwritings, itwould not, I think, bind us in Ceylon. Prior to the Common LawProcedure Act, 1854 (17 and 18 Vied. c. 125), evidence of handwriting by comparison was .inadmissible, except where the writingacknowledged to be genuine was already in evidence in the cause orthe disputed writing was an ancient document (Doe d. Perry v.Newton 2). Section 27 of that enactment provides that “.com-parison of a disputed writing with any writing proved to the satis-faction of the Judge to be genuine shall be permitted to be made bywitnesses, and the evidence of witnesses respecting the same may besubmitted, to the Court and jury as evidence of the genuineness^orotherwise of the writing in dispute..'* This provision, which wasapplied to all courts of civil jurisdiction by section 103, and to*criminal cases by 28 Viet. c. 18, sections 1 and 8, did not prescribe any
» i am 2 Q. B. 766.* (1836) 5 A. 6 E. 614.
1007.
November 4.
WoodBsnton J.
( 364 )
1907. qualification on the part of a witness to handwriting as a condition!
November 4. precedent to the reception of his evidence, and although the EnglishCourts (see Beg. v. Silverlock) in practice require such witnesses to
Renton J. ke Periti, the text of the law itself, unlike section 45 of our EvidenceOrdinance, does not contain either the requirement, or any defi-nition, of peritia. In Ceylon a person is not competent to give a®expert opinion as to the identity or genuineness of handwritingunless he is “ specially skilled ” in questions of that character. Onthe grounds I have stated I think that the learned District Judgeought to have upheld Mr. Van Langenberg's objection to Mr. Cottle'scompetency under section 45 of the Evidence Ordinance.
Moreover, I doubt whether section 73 of the Evidence Ordinance,founded as it is on section 27 of the Common Law Procedure Act,1854, and sections 1 and 8 of 28 Viet. c. 18, has the effect of makingthe reasons for Mr. Cottle’s opinion any more admissible in evidencethan his opinion itself. The primary object of section 73 as of itsEnglish analogues, clearly was to get rid of the Common Law rule,which prevented a document not otherwise in evidence in the causefrom being admitted for the sole purpose of comparison of hand-writings. Even in the construction of the English enactments,which provide for the comparison being made *4 by witnesseswithout any express mention of expert knowledge, some degree ofperitia is, as we have seen, required by the Courts, unless the witnesscomes to speak to handwriting on one of the grounds of personalknowledge , which are reproduced in section 47 of our own EvidenceOrdinance. I am not satisfied either (a) that a legal decision or con-viction could be based on a mere comparison by Judge or jury of anadmitted with an impugned writing without some proof aliunde as-t,o the identity or genuineness of the latter (c/. the doubts of BonserC.J. in Cave v. Kreltszh'eim1); or- (b) that the opinion, or the groundsof the opinion, of any witness on such a question would be admis-sible under section 73, unless he is either ian “ expert ” within themeaning of section 45 or qualified by personal knowledge within themeaning of section 47 (see also section 51). But, even if both Mr,Cottle’s opinion and the reasons on which it is based were admissible,
I should not be prepared to pronounce the endorsement on the pro- ■missory note of March 21, 1906, a forgery on the strength of thatevidence. In the first place, I note, in passing, the fact that Mr; #Cottle was supplied, by the zeal" of the respondent’s proctor, with aproof of Mr. de Soysa's evidence before giving his, own. It wasthus impossible for the appellant’s counsel to cross-examine himwfth full effect on ,the documents to which Mr. de Soysa referred.c Again, so far as I can find, Mr. Cottle says nothing, and not a scrapof evidence was adduced on the question, as to the words “pp. Ladyde Soysa ” in the endorsement on the note of March 21. Moreover,
» (1895) 1 N. L. R. 146.
( 365 )
Mr. Cottle used as the basis of his comparison with the genuinesignatures submitted to him, and reasoned from, not only the im-pugned note of March 21, but a large number of other signatures ofMr. de Soysa’s, whose genuineness is also impugned, but has not beenadjudicated upon by the learned District Judge. When we turnfrom these extrinsic circumstances which detract from its weight,to Mr. Cottle’s evidence intrinsically, and confine ourselves, as Mr.H, J. C. Pereira invited us to do, to the note of March 21, the twogenuine notes, and the cheques, I can only say—to put the mattercompendiously—that the sole point which really strikes me is thatin the scroll to the impugned note the dots on each side are parallel tothe oblique stroke, not to the bottom edge of the* paper, while thedots above and below are parallel to the bottom edge of the paperin all the genuine signatures I have referred to. The other dia-similarities on which Mr. Cottle relies—the building up of the lettersin the impugned notes, the character of the outlines of the letters,and the turn of particular letters—may quite well have been due tolocal conditions, to the pen used, to the quality of the ink, and tothe physical position and mental state of the writer at the momentof writing, and they have for the most part been met by exactlysimilar variations in some of Mr. Sovsa’s undisputed signatures.I think that Mr. Cottle’s evidence, even if legally admissible, doesnot warrant a finding that the impeached endorsement on thepromissory note of March 21, 1906, is a forgery.
The question, therefore, arises, What effect ought the exclusion ofMr. Cottle’s testimony to have on the fate of the present appeal'/The answer to that question is furnished by section 167 of theEvidence Ordinance*■ as interpreted in numerous decisions—some ofthem decisions of the Privy Council—under the correspondingsection of the Indian Evidence Act (Ameer Ali, 2nd edition, p. 1025).We have to throw aside the evidence which ought not to have beenadmitted, and consider whether there still remains sufficient tosupport the judgment under appeal, remembering always, of course,the incidence of the burden of proof. Although no distinction is;drawn in section . 167 of the Evidence Ordinance between trial by a*.Judge alone and trial by a Judge with a jury or assessors, I conceivethat we are entitled to take account of it in the practical application*of the test I have stated. It is obvious that when you are dealingwith the decision of a Judge alone you have the advantage of know-ing the reasons that have led him to it, and you can tell to a largeextent how far evidence which has been improperly admitted hasinfluenced his mind. In the case of a trial by a jui^, this safeguard’does* not &xist; and if the present appeal had been one from tkeverdict of a tribunal of that character, I should have been disposed' jto hold, without going further into the matter; thaA there oughtto be a hew trial. We have here, however an appeal from the-decision, of a Judge «lone( and of- a Judge who has set out the*
1907.
November
WoodBebtok J.
( 366 )
1907.grounds of his findings^ and theprocessofhisreasoningwith
November 4. great clearness and ability and in great detail. I proceed, therefore,Woodto consider whether, eliminatingMr.Cottle’sevidence,the
Renton J.learned District Judge’s decisionoughttobesupported.Mr.
H. J. C. Pereira argued that it was clear from the structure of. the judgment itself that the learned ‘District Judge, in so far asMr. Cottle’s evidence had affected his mind, had been influencedby Ins reasons and not by his opinions, and had, moreover, come toa conclusion adverse to the appellants, irrespective of that evidencealtogether. I fl-rn not sure thatit is safetodraw deductions
from the ultimate literary form that a judgment assumes, as' to theorder of its evolution in the mind of the writer. X think that theDistrict Judge was clearly influenced by Mr. Cottle's opinion itself.
He speaks of his “ unique qualifications," and seems at one pointto indicate that the mere recording of Mr. Cottle's conclusion madeit unnecessary to examine his evidence minutely. For the reasonsalready given, if the judgment appealed against rested solely onMr. Cottle’s opinion or reasoning, or on both together, I do not thinkit could stand. At the same time the natural method, which wemust assume that the District Judge has pursued, of approachingthe consideration of a case of this kind would be to begin with theparties and the ordinary witnesses to facts, and to weigh their relativecredibility in the light of the facts themselves. When the case isviewed from this standpoint, I think that, excluding Mr. Cottle'sevidence altogether, more than* sufficient material remains to renderit impossible for us, in accordance with -the well-settled rules deter-mining the functions of appellate tribunals, to interfere.
In the first place, we have the decision of. the learned' Judge onthe vital question of the comparative trustworthiness of Mr. deSoysa and Mr. Sanmugam. It is an estimate based not only ontheir evidence itself, but bn their demeanour in the witness box. Itis an estimate in which full account has been taken of the short-comings of Mr. de Soysa, whose version of the critical facts thelearned Judge ultimately accepts. It is an estimate which anAppeal Court ought not lightly to revise. In the next place, wehave the events of May 28, 1906. They are unconnected with, andentirely independent of, any questions as to expert evidence of hand-writing. But they form in themselves one of the issues in the case. <. And they have also a direct bearing on the events of the precedingMarch 21. No Judge in deeding with the latter could have kept thefonper out of view, or would have been. justified in doing so.
°Now, but for one circumstance, it might fairly have t^een arguedthat the rival interpretations of the events of May 28, and indeedof the case as a whole, put forward on behalf of the appellants andthe respondent respectievly were so evenly balanced that, in anycake, it could not be held that the onus of proof resting on therespondent had been discharged.(
( 367 )
On the one side is Mr. de Soysa. He has succeeded'ln so managing iQOi.his mother’s estate as to burden it with a debt of £160,000, and4‘
has consequently aroused strong dissatisfaction with, and suspicionof, his stewardship Among his brothers. If the extent to which he Rbnt0n J.has been dealing with his mother's property comes to light, there willbe good grounds for, at the least, the revocation of his power ofattorney, once already revoked by his mother herself. So he hasevery motive to conceal the existence of transactions affecting herestate. The necessity for such secrecy is the keynote of the case.
It explains Mr. de Soysa’s failure to denounce the note of May 28to Muttiah Chetty as a forgery the instant that it was presented tohim, his delay in taking proceedings, and even his visit to the Bankof Madras for the purpose of getting back a promissoiy note, whichif Mr. Sanmugam’s story is true, was then safely lying at the bottomof his own pocket. The real object of this visit was not to trace thenote, but to find out how much was known. To the same need forsecrecy are attributable Mr. de Soysa’s subsequent repudiation ofnotes, the genuineness of which he had previously admitted toMr. Shand, and the fact that the note of March 21 was not discountedat any of the banks, a precaution that could only have been devisedin the interest of Mr. de Soysa himself.
On the other side we have Mr. Shanmugam. He is involved in•desperate financial straits. Mr. de Soysa’s personal guarantee isno longer sufficient to secure his accommodation. Even blankpromissory notes signed by Mr. de Soysa himself are not negotiable.
The only rod that can be conjured with in the Chetty marketis the name of Lady de Soysa.And so • the forgeries are
conimitted.• –
I do not say that, as between these two presentations of the casesalone, it would be* impossible for a Court of Law to decide in therespondent’s favour. On the contrary, I think that on the face ofthe facts proved—apart from the crucial circumstances, to which Iwill refer immediately—there are graver difficulties in the way of theacceptance of Mr. Sanmugam’s story than can be urged against thatof Mr. De Soysa. Sanmugam’s statement (the making of which is,
I think, estabhshed) at the bank: " I will bring the rascal up,’*’ thetearing of the cheque given him by Muttiah Chetty, .the whole cir-cumstances connected with the execution of the bond of March 26in Mr. de Soysa’s favour, the original proposal that it should be forBs. 100.000, the prompt reduction of this amount to Bs. 50,000,when Mr. Vandersiraajben —in whose conduct I confess I do not seeground for the learned District Judge's strictures—referred to thestamp duties that a bond for Bs, 100,000 would involve, are, indi-vidually and still more so collectively, matters of, more serious *import than De Soysa’s failure to charge Sanmugam promptly when
he met him at the bank, and the incidental falsehoods of which the
>
District -Judge has convicted him. Both Mr. Bawa and Mr. Van
27-,
( 368 )
1907.
Nwetribeti 4.
WoodRbuton J.
Langenherg urged that the bond of March 26 was useless as & pieceof manufactured real evidence in Sanmugam’s favour. The consi-deration alleged in it effectually severed it alike from the note ofMarch 21 and from that of May 28. But the bond could, 1 think,be utilized by Sanmugam as evidence of the fact that he was endeav-ouring honestly to cover his own heavy indebtedness to De Soysa.So far at least it would be a testimonial in favour of his good faith,and we have it on record that this was the light in which it imme-diately presented itself to the mind of Mr. Vanderstraaten when heheard of the alleged forgeries. But, even if the two cases were moreevenly balanced than I think they are, there is, as I have alreadyindicated, one circumstance which turns the scale in the respond-ent's favour. If Mr. Sanmugam's story is true, at the time whenMr. de Soysa called at the Bank of Madras to make inquiries as tothe promissory note of May 28 he had that note lying in his ownpocket. The appellant's counsel, as one would expect fromadvocates of their standing, clearly realized the seriousness of thisincident, and they made an earnest attempt to deal with it. Theycontended in effect that the real object of Mr. de Soysa's visit wasnot to find out if the note had been discounted, but to ascertainwhether anything, and how much, had come out as-to the transactionsin which he had been engaged. After careful weighing this explana-tion, 1 feel bound to reject it. It seems to me inconsistent withDe Soysa's character as disclosed in the evidence. There is no clearproof that the fact that a promissory note purporting’to be endorsedby him as his mother’s attorney was in circulation had become amatter of general knowledge, which might easily reach his brothers’ears. There is nothing to show that he ever put himself, prior tohis visit to the bank, in communication with Mr. Mendis or with any-one else who could suggest to him the line of. action, which, it isargued, that he pursued; and the evidence of Mr. Dunbar, who wasnot cross-examined on the point,’ showed that he confined hisinquiries at the bank to the impugned note of May 28. In myopinion the learned District Judge rightly held that this part ofSanmugam’s story was false, and the finding is decisive of the case.It justified the Judge in believing De Soysa as against Sanmugam,even when corroborated by the somewhat interested and taintedtestimony of Vellasamy, in regard to the promissory note of March21. It justified him also in holding on the whole case that theendorsement on the note of May 28 was a forgery, that the notewas and is in Sanmugam’s possession, and that therefore he is
accountable for it.
• *
The appeal must be dismissed with costs.
Appeal dismissed.
t