Section 73 of the Indian Evidence Act, 1872

Comparison of signature, writing or seal with others admitted or proved:

In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

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The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

This section applies also, with any necessary modifications, to finger-impressions.

Comments:

Comparison of signature, writing or seal:

When there is a dispute as to genuineness of signature, writing or seal pending before the court, Section 73 will apply. According to the section the court can compare the disputed signature, writing or seal with undisputed signature, writing or seal which have been admitted or proved to the satisfaction of the court. This section provides for a direct method of comparison of the disputed signature, writing or finger impression. In deciding a dispute whether a particular writing, signature or seal is of a particular person by whom it purports to have been written or made, the court can compare the same with other writing, signature, or seal which have already been admitted or proved to be the writing or signature or seal of that person. “It is necessary that the writing to be used as a standard should be properly proved to the satisfaction of the judge to be the handwriting of the person concerned”. In such situation the rule of prudence is that the comparison of signature by courts as a mode of ascertaining the truth should be used with great care and caution.

This section consists of two parts. First part provides for comparison of signature, writing, figure etc. purporting to have been written or made by a person with other admitted or proved signature, writing, figure etc. by the court to have been written signed or made by the same person. Second part empowers the court to direct the person to appear before it and to give his specimen signature or writing for the purpose of evaluating the disputed signature, writing, figure etc.

The Supreme Court citing Law of Evidence by Taylor hold that it is clear that such comparison may be made by a handwriting expert or by one familiar with the handwriting of the person concerned or by the court.” The two parts “are not mutually exclusive”. “They are complementary to each other”. It is also imperative that the court should be slow to make comparison of signature itself. It should take the aid of any writing expert.¹ Both the plaintiff and the defendant have not taken steps to secure the opinion of handwriting expert when there was dispute on a signature in the Latter of administration. The court has the power to compare disputed signature with undisputed signature.

It is equally important to take note of the sentence “for the purpose of enabling the court to compare” found in the second part of Section 73. In this regard the Supreme Court held that the language of Section 73 does not permit a court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the court. Section 73 cannot be made use of for collecting specimen writing during investigation and recourse to it can be had only when the court before which the enquiry or trial of proceeding is pending requires the writings for the purpose of enabling it for comparison.

In case of determination of finger impression the court is required to make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristic, similarities and dissimilarities of such finger impression. The court should avoid reaching conclusions based on a mere casual or routing glance or perusal.

Methods of proving writing:

Besides comparison of signature, writing etc. under section 73, there are other methods to test the genuineness of signature or writing:

1. With the help of expert who can prove handwriting and signature under section 45 of the Evidence Act.

2. With the help of other person who is acquainted with the handwriting of the person alleged to have signed or written the document (Section 47).

3. By calling and examining the writer himself and his admission (Section 67).

Comparison by court:

In some circumstances the court can compare the disputed writing or signature with admitted or proved writing or signature, particularly, when both the parties are unable to bear expenses for calling experts. The Supreme Court in number of cases opined that Section 73 expressly enables the court to compare disputed writings with admitted or proved writings. Their lordships of the Privy Council had the same view. But the court must be concerned with the trial or the proceeding where the signature was taken at the direction of Sub-Divisional Magistrate who was neither conducting the enquiry nor was the trial fixed before him, such specimen signature could not be used for the purpose of Section 73 of the Act.

In the matter of comparison of writing or signature the court will have to seek guidance from some authoritative text books and court’s own duty with or without expert, with or without other evidence. If the defendant denied his signature on various exhibited documents, the vakalatnama and the written statement, the trial court can compare signature under section 73 of this Act.

The section has also enabled the court to compare the original signature with a specimen signature. But when the similarity in signatures on different documents is blatant to the naked eye, the court can record its findings. The Supreme Court itself on comparison of writings sustained conviction. A degree passed on the basis of comparison of signature is not improper. In a case the signature of defendant on deed in question was specifically denied, the court recorded finding that an appreciation of signatures on comparison with magnifying glass that defendant, in fact, signed the agreement of sale.

There is no illegality. However, where a person denied alleged signature and the opposite party did not prove the signature to be his it is not obligatory on the court to determine genuineness of the document by comparing alleged signature with admitted signature. An accused is free to decide whether he would or would not comply the order directed by the court to give specimen writing or finger impression. Section 73 does not permit the use of compulsion, On dealing to comply with the order by the accused the court will be at liberty to draw adverse presumption under section 114 as is appropriate in the circumstances. Defendant’s application for setting aside the sale agreement on the ground that the sale agreement was forged document and signature in sale agreement was also forged was not allowed as the application lacked bonafides.

Comparison of voice of witness:

There is no specific provisions for directing the giving of voice sample under the Evidence Act, and such direction cannot be given at the stage of investigation. However, the court feels that the voice samples ought to be taken for the purpose of establishing identity and then such direction may be given provided the voice sample taken is only for the purpose of identification and does not contain any inculpatory statement so as to be suit by Article 20(3) of the Constitution of India.

Application of Section 73 in Civil and Criminal cases:

Section 73 does not make any difference for application of the rule in civil and criminal cases. It applies in both proceedings. The handwriting may be proved with the help of expert’s opinion under section 45 and 47.

Section 73 not offend Article 20(3) of the Constitution. The Supreme Court held that Section 73 does not offend Article 20(3) of the Constitution. The Magistrate has no jurisdiction to issue direction to the accused to give his specimen handwriting. “An account of judicial decision leading to the decision in Peliram being of much interest and value is given by herein,” overruling Sharma v Satish as obiter the Supreme Court in Kathi Kalu case has observed that mere issue of compulsory process or a direction on the accused to give finger impression or specimen writing etc. was not proper. The accused has the right to refuse their production.

73A. Proof as to verification of digital signature:

In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct—

(a) That person or the Controller or the Certifying Authority to produce the Digital Signature Certificate;

(b) Any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person.

Explanation:

For the purposes of this section, “Controller” means the Controller appointed under sub-section (1) of Section 17 of the Information Technology Act, 2000.