Code
(1) When the Court has to form an opinion as to the person by whom any document
was written or signed, the opinion of any person acquainted with the handwriting of the
person by whom it is supposed to be written or signed that it was or was not written or
signed by that person, is a relevant fact.
Explanation.—A person is said to be acquainted with the handwriting of another
person when he has seen that person write, or when he has received documents purporting
to be written by that person in answer to documents written by himself or under his authority
and addressed to that person, or when, in the ordinary course of business, documents
purporting to be written by that person have been habitually submitted to him.
Illustration.
The question is, whether a given letter is in the handwriting of A, a merchant in
Itanagar. B is a merchant in Bengaluru, who has written letters addressed to A and received
letters purporting to be written by him. C, is B’s clerk whose duty it was to examine and file
B’s correspondence. D is B’s broker, to whom B habitually submitted the letters purporting
to be written by A for the purpose of advising him thereon. The opinions of B, C and D on
the question whether the letter is in the handwriting of A are relevant, though neither B, C
nor D ever saw A write.
(2) When the Court has to form an opinion as to the electronic signature of any
person, the opinion of the Certifying Authority which has issued the Electronic Signature
Certificate is a relevant fact.
Explanation of Section 41 BSA
Section 41 of the Bharatiya Sakshya Adhiniyam deals with the relevance of opinions regarding the authorship of handwriting and electronic signatures in a document. This section establishes when and how the opinion of a person—familiar with someone’s handwriting—or a Certifying Authority’s opinion on electronic signatures becomes legally relevant.
Subsection (1): Opinion on Handwriting
If the authenticity of a document’s handwriting is in question, the opinion of someone who is acquainted with that handwriting becomes a relevant fact. This person doesn’t need to have seen the actual writing occur; regular correspondence or business transactions involving that handwriting may be sufficient.
The explanation clarifies how someone is considered to be “acquainted” with the handwriting—through having seen the person write, through received communications, or through regular business exposure to such handwriting.
Subsection (2): Opinion on Electronic Signatures
When the authenticity of an electronic signature is questioned, the opinion of the Certifying Authority that issued the Electronic Signature Certificate is a relevant fact. This provision acknowledges the importance of digital authentication and assigns legal value to the opinion of authorized digital certifiers.
Illustration
Example: Handwriting Authentication
A letter is allegedly written by A, a merchant in Itanagar. B, a merchant in Bengaluru, frequently communicated with A via letters. C, B’s clerk, managed and reviewed this correspondence, and D, B’s broker, reviewed the letters for business advice.
Even though none of B, C, or D actually saw A write, their opinions on whether the questioned letter is in A’s handwriting are considered relevant under Section 41.
Example: Electronic Signature
If a digitally signed contract is challenged in court, the opinion of the Certifying Authority that issued the signer’s Electronic Signature Certificate is admissible to help the court determine whether the signature is authentic.
Common Questions and Answers on Section 41 BSA
Q1. Who can give a valid opinion on someone’s handwriting?
A person who has had regular exposure to that handwriting through correspondence or business dealings, even if they haven’t seen the person write in person.
Q2. Is an expert’s handwriting analysis required?
Not necessarily. A non-expert who meets the criteria of being “acquainted” with the handwriting may offer a relevant opinion.
Q3. How is the authenticity of electronic signatures established in court?
The Certifying Authority that issued the Electronic Signature Certificate can give an opinion, which is treated as a relevant fact.
Q4. Can the opinion of a handwriting expert override someone acquainted with the handwriting?
Both types of opinions may be considered relevant. The weight assigned depends on the circumstances and supporting evidence.
Conclusion
Section 41 of the Bharatiya Sakshya Adhiniyam recognizes that both traditional and digital forms of authorship—handwriting and electronic signatures—require a mechanism for verification. This section enables courts to admit the opinion of persons familiar with handwriting and certifying authorities as legally relevant evidence. It ensures both flexibility and reliability in modern document authentication.
For detailed legal breakdowns and expert commentary on the Bharatiya Sakshya Adhiniyam and other bare acts, visit ApniLaw.
