This section comes under Part II of Chapter V of documentary evidence, here how execution of proof is done is to be shown. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied[1].
Now in section 73 of Indian Evidence Act it is stated –
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. 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
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.
For the purposes of this section, “Controller” means the Controller appointed under sub-section (1) of Section 17 of the Information Technology Act, 2000.
Comments:
Whenever there is doubt of signature, seal or writing before the court this section 73 of Indian Evidence Act will be applicable. According to this this, court can match or compare the disputed signature, seal or writing with undisputed signature, seal or writing which have been submitted to the satisfaction of court. In this it provides for a straight method of comparison of disputed writing, signature or finger impression, in deciding unresolved matter whether a particular signature, writing or seal of a particular person by whom it purports to have been written or made, the court can compare the same with other signatures, seal or writing which have been already submitted or proved to be the same ( i.e. 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 this 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 contains two parts. The first one provides with the comparison of writing, signature, 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 here empowers the court to order 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. and to see that it matches or not.
Here according to Supreme court it is clear that such comparison made by a handwriting expert or by one with the handwriting of the person concerned or by the courts direction. Here the court should not be in hurry it should slowdown in making comparison itself. It should take the proper aid of any writing expert. As both plaintiff defendant has not taken steps to secure the opinion of handwriting expert as such the court has the discretionary power to compare disputed signature with the 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. There are methods of proving writing such as, with the help of expert who can prove handwriting and signature under section 45 of the Evidence Act, With the help of other person who is acquainted with the handwriting of the person alleged to have signed or written the document and by calling and examining the writer himself and his admission.
In 73A again to proof the digital signature the court will tell certifying authority to produce its digital signature certificate in court or else, apply by other method and then compare it accordingly. Here is digital signature certificate comes under IT Act.
[1] Section 73A of Indian Evidence Act
Track2Training 