Section 41 BSA: Opinion as to Handwriting and Signature, When Relevant
Section 41 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the relevance of opinion evidence when a Court has to determine who wrote or signed a document, and when it has to form an opinion about a person's electronic signature. The Bharatiya Sakshya Adhiniyam, 2023 is Act No. 47 of 2023 and came into force on 1 July 2024.
Text of Section 41 of the Bharatiya Sakshya Adhiniyam, 2023
41. Opinion as to handwriting and signature, when relevant.
(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.
Meaning and Scope of Section 41 BSA
Section 41 treats certain opinion evidence as relevant when the identity of the writer or signatory of a document is in issue. The provision does not require the witness to be a handwriting expert. Instead, sub-section (1) recognizes the opinion of a person who is already acquainted with the handwriting of the person concerned in one of the ways described in the statutory Explanation.
When is a person "acquainted" with handwriting?
The Explanation to Section 41 identifies three common situations in which a person may be regarded as acquainted with another person's handwriting:
- the witness has seen the person write;
- the witness has exchanged correspondence with the person and received documents purporting to have been written by that person; or
- documents purporting to be written by that person have habitually come before the witness in the ordinary course of business.
Electronic signatures under Section 41(2)
Sub-section (2) separately addresses electronic signatures. Where the Court has to form an opinion about a person's electronic signature, the opinion of the Certifying Authority that issued the Electronic Signature Certificate is a relevant fact.
Relationship with the Earlier Indian Evidence Act, 1872
Section 41 of the Bharatiya Sakshya Adhiniyam substantially brings together the subjects that were dealt with under Section 47 of the Indian Evidence Act, 1872 concerning handwriting and Section 47A concerning electronic signatures. The present provision therefore places handwriting/signature opinion and electronic-signature opinion in one section.
Practical Effect
Section 41 is a rule of relevance. It allows the Court to receive the specified opinion evidence for consideration when authorship, signature or an electronic signature is disputed. The weight to be given to that opinion will depend on the facts and the quality of the witness's familiarity or the authority of the Certifying Authority, together with other admissible evidence in the case.
Official Sources
For authoritative reference, consult the official text of the Bharatiya Sakshya Adhiniyam, 2023 and the Government notification bringing it into force.
This page is intended for general legal information. For a case involving disputed handwriting, signatures, electronic records or admissibility of evidence, the applicable facts and procedural requirements should be considered separately.