In the High Court of Judicature at Madras
Dated: 10.11.2009
Coram:
The Honourable Mrs.Justice R.BANUMATHI
Second Appeal No.30 of 2007
R. Saravanan ... Appellant/Defendant
Versus
P.N.Peruvazhuthi ... Respondent/Plaintiff
Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree dated 02.01.2006 made in A.S.No. 1 of 2005 on the file of the Sub Court, Arni, reversing the judgment and decree dated 26.10.2004 made in O.S.No. 163 of 2004 on the file of the District Munsif Court, Polur.
For Appellant .. Mr.N.A.Malai Saravanan
For Respondent .. Mr.S.V.Jayaraman,
Senior Counsel for Mr.G.A.Thiyagarajan
JUDGMENT
This Second Appeal arises out of judgment in A.S.No.1 of 2005 reversing judgment of the trial Court in O.S.No.163 of 2004 and thereby decreeing the suit, directing the defendant to pay Rs.64,413/- along with subsequent interest and costs. Unsuccessful defendant is the appellant.
2. Case of plaintiff is that defendant borrowed a sum of Rs.18,000/- on 10.05.1998 and a sum of Rs.19,300/- on 10.09.1998 from plaintiff and executed Ex.A1 and Ex.A3 Promissory Notes on the same date agreeing to repay the same with interest at the rate of 12% per annum. Defendant paid a sum of Rs.500/- towards interest on 03.02.2001 and made endorsement (Ex.A2) in the first promissory note) and paid a sum of Rs.500/- towards second promissory note for the part payment of interest on 17.03.2001 and made endorsement (Ex.A4) to that effect. Stating that inspite of repeated demands defendant did not pay the amount, plaintiff filed suit O.S.No.61 of 2002 for recovery of Rs.52,686/- along with subsequent interest and cost.
3. Defendant resisted the suit denying having approached the plaintiff for financial help to meet his family expenses and to discharge his family debts. Defendant had not denied execution of his signatures in Ex.A1 and Ex.A3 Promissory Notes. But, according to defendant, he was conducting a chit and plaintiff joined as subscriber in two chits and plaintiff was successful bidder in 19th and 20th chits and after the chit, defendant was not in a position to pay the chit amount to the plaintiff immediately and at the instance of plaintiff, defendant signed two blank stamped Promissory Notes. Defendant further averred that within two years, defendant paid the entire chit amount to plaintiff and when asked for return of Promissory Notes, plaintiff stated that Promissory Notes were misplaced and assured that he would return the same as and when he finds Promissory Notes. According to defendant, because of assurance given by plaintiff, defendant did not insist for any receipt. Defendant specifically denied Ex.A2 and Ex.A4 endorsement and according to him those endorsements are forged and fabricated. Defendant further averred that because of enmity, plaintiff has filed the suit based on the forged endorsements.
4. On the above pleadings, five issues were framed in the trial Court. On issues 1 and 3, trial Court held that since execution of Promissory Notes is admitted by defendant, presumption under Section 118 of Negotiable Instruments Act is available to the plaintiff and issues 1 and 3 were answered accordingly. Insofar as the genuineness of Exs.A2 and A4 endorsements, trial Court itself compared the disputed signatures of the defendant (Ex.A2 and Ex.A4) and held that there is variance between the disputed signatures and admitted signatures of the defendant which is visible to the naked eye and issue No.2 was answered accordingly. The trial Court further held that if Ex.A2 and Ex.A4 endorsements are eschewed from evidence the suits would be compared by limitation and on those findings, trial Court dismissed the suit.
5. Aggrieved by the dismissal of suit, plaintiff filed A.S.No.1 of 2005 on the file of Sub Court, Arni. The lower Appellate Court concurred with the findings of the trial Court that in view of admission of execution of Promissory Notes, the presumption under Section 118 of the Negotiable Instruments Act is to be raised in favour of the plaintiff. Lower Appellate Court held that it is for the defendant to adduce evidence rebutting the statutory presumption raised under Section 118 of Negotiable Instruments Act. Insofar as the endorsements, on comparison of disputed signatures of the defendant with his admitted signatures, lower Appellate Court expressed its view that there is no variance in the signatures and on Issue No.3, lower Appellate Court reversed the findings of the trial Court and allowed the Appeal holding that the defendant is liable to pay the suit claim along with interest and costs.
6. Being aggrieved by reversal judgment, defendant has filed the Second Appeal. At the time of admission, following substantial questions of law were formulated for consideration:-
a) Whether the lower Appellate Court is vested with the powers of comparison under Section 73 of the Evidence Act, particularly when the plaintiff had opposed the petition filed by the defendant/appellant for having the document under Exs.A2 and A4 compared through an expert ?
b) Whether the presumption under Sections 114 of the Evidence Act and 118 of the Negotiable Instruments Act available automatically when the passing of consideration and execution is denied by the defendant ?
7. Learned counsel for Appellant submitted that date and amount in Exs.A1 and A3 Promissory Notes will clearly show that only for the purpose of security in lieu of payment of chit amount, the Promissory Notes were executed. It was further submitted that lower Appellate Court ought to have seen that plaintiff has not taken any steps to prove genuineness of the Endorsements. It was further argued that in the light of denial of Endorsements, plaintiff ought to have taken steps for sending the documents for obtaining opinion of the Handwriting Expert. Learned counsel for Appellant further submitted that lower Appellate Court did not properly appreciate the dissimilarities in the signatures found in Exs.A2 and A4 Endorsements.
8. Onbehalf of the respondent, learned Senior Counsel submitted that acceptance of PW.4's evidence as to genuineness of signatures in Endorsements is a question of fact and High Court will not interfere with such conclusion of fact arrived at by the lower Appellate Court. It was further submitted that denial of Endorsements by defendant should be viewed in the context of the defendant. It was further submitted that findings of lower Appellate Court is based upon analysis of evidence and the same cannot be interfered with.
9. Plaintiff who examined himself as PW.1 and Scribe of Promissory Note (PW.2) and Testator (PW.3) have consistently spoken about the date, time and place of execution and also passing of consideration as to Exs.A1 and A3 Promissory Notes. Defendant has admitted his signatures in Exs.A1 and A3. Courts below recorded concurrent findings of fact as to the execution of two Promissory Notes (Exs.A1 and A3). Once execution is admitted, presumption arises under Section 118 of Negotiable Instruments Act. Burden lies upon the defendant to rebut the presumption.
10. Stand of defendant is that as he was unable to pay the chit amount paid by the plaintiff in chit transactions conducted by the defendant as a security for payment of amount to the plaintiff, defendant signed blank Promissory Notes and gave them to the plaintiff. Further stand of defendant is that he paid the amount to the plaintiff and plaintiff told him that the Promissory Notes were misplaced and assured to return them. As pointed out by the lower Appellate Court, defendant had not produced any document to show that he paid the amount. It is quiet unbelievable that having paid the amount to the plaintiff, defendant did not insist for return of Promissory Notes or receipt. Defendant has admitted receipt of Exs.A5 and A6 legal notice. But defendant has not chosen to reply stating about the alleged discharge.
11. For dismissing plaintiff's suit, trial Court held that in Endorsements - Ex.A2 (03.02.2001) and Ex.A4 (17.03.2001) varies from the admitted signatures of the defendant. Exercising making comparison of disputed signatures of the defendant with his admitted signatures, trial Court arrived at conclusion that signatures of defendant in Exs.A2 and A4 are forged.
12. To prove Exs.A2 and A4 Endorsements and signatures of defendant, thereon, PW.4 Loganathan was examined. PW.4 had spoken about the payment made by the defendant and Endorsements made and that the defendant signed in the presence of PW.4:- " vd; vjphpy; jhd; gpujpthjp ifbaGj;J nghl;lhh;". Admittedly, no enmity between defendant and PW.4 Loganathan. Nothing substantial was elicited from PW.4 to discredit his version. As rightly submitted by learned Senior Counsel Mr.S.V.Jayaraman, acceptance of evidence of PW.4 is a question of fact which normally the High Court will not interfere.
13. As pointed out earlier, plaintiff issued pre-suit notice Exs.A5 and A6 (09.01.2002). Even though defendant received legal notice, defendant has not chosen to send any reply denying the Endorsements. Non-sending of any reply is a strong militating circumstance against the defendant.
14. Learned counsel for defendant contended that in Ex.A4, Endorsement, principal amount has been stated as Rs.18,000/-, even though principal amount is Rs.19,300/-, which throws serious doubt about the genuineness of Endorsement (Ex.A4), which was not kept in view by the lower Appellate Court. Mention of principal amount in the endorsement is not much of relevance to disbelieve the genuineness of endorsement merely on the ground of variance in the principal amount stated in Ex.A4.
15. Learned counsel for defendant nextly contended that defendant had taken steps for sending Exs.A2 and A4 for obtaining opinion of Handwriting Expert and the said application was dismissed merely on the objection raised by the plaintiff. It was therefore submitted that if signatures of the defendant in Exs.A2 and A4 were genuine, plaintiff need not have objected to send the document to Handwriting Expert. It was also contended that while dismissing the petition, Court made an observation that exercising its power under Section 73 of Indian Evidence Act, Court itself can compare the disputed signature with admitted signature and while so, trial Court cannot faulted for making such comparison and arriving at its own conclusion.
16. The above contention does not merit acceptance. Petition - I.A.No.2 of 2004 filed under Order 26 Rule 10(a) requesting the Court to send the document to Handwriting Expert came to be dismissed, since the said petition was filed after plaintiff's evidence was over and the defendant was to adduce evidence. Since the suit was then part-heard, it might have been necessary to dismiss the petition and dismissal of the said petition would not in any way advance the case of the defendant.
17. The trial Court arrived at conclusion that Ex.A2 and Ex.A4 endorsements are forged mainly on comparison of disputed signatures of defendant in Exs.A2 and Ex.A4 with admitted signatures in Ex.A1 and Ex.A3 and other admitted signatures. Section 73 of Indian Evidence Act enables the Court to compare signature, writing with other admitted signatures. The first part of the Section 73(1) of the Evidence Act, (I) provides for comparison of signature, writing, finger impression & c, purporting to have been written or made by a person with others admitted or proved to the satisfaction of the Court to have been written or made by the same person. But it does not specifically say by whom such comparison may be made. It is clear that such comparison may be made by a handwriting expert (s 45) or by one familiar with the handwriting of the person concerned (s 47) or by the Court (State (Delhi Administration) ..Vs.. Paliram, AIR 1979 SC 14).
18. Under Section 73 of Evidence Act, a Court is competent to compare the disputed writings of a person with other writings which are admitted or proved to be his writings. Such comparison by the Court is with a view to appreciate properly the other evidence available on record on the question of writings. It would, however, be too hazardous for a court to use his own eyes and merely on the basis of personal comparison decide a very vital issue between the parties entering ground the handwriting or signature of a person.
19. In AIR 1979 SC 14 (State (Delhi Administration) ..Vs.. Paliram) has held as under:-
"The matter can be viewed from another angle also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other, and the prudent course is to obtain the opinion and assistance of an expert."
20. In examining a disputed signature, the most important things are to examine the general characteristics, formation of letters, pen habits and mannerism, it is not the form alone nor any one of the features but a companion of all the qualities are to be kept in view while examining the signature. The total individuality has to be taken into account in arriving at the decision. In examining the disputed signature, the true test is not the extent of similarities, but the nature and extent of dissimilarities.
21. In the matter of recognizing handwritings, there is bound to be abundant source of mistakes. However if signature/handwriting is disputed, it is always desirable to obtain opinion of the handwriting expert. Though under Section 73 of Indian Evidence Act, the Court is competent to use its own eyes for deciding whether certain handwriting placed before it are similar or not, it is not desirable for the Court to arrive at the conclusion on its own comparison. On comparison the opinion formed by the Court only be a piece of evidence, to appreciate other evidence adduced. While so trial Court erred in basing its conclusion solely on the opinion formed by it on comparison of signature of Defendant in Exs.A2 and A4 with admitted signature.
22. Upon analysis of evidence, lower Appellate Court rightly reversed the findings of trial Court. When the findings of lower Appellate Court is based upon evidence and materials on record, the High Court will not interfere unless shown to be perverse. The findings of lower Appellate Court cannot be said to be perverse warranting interference exercising jurisdiction under Section 100 C.P.C.
23. In the result, Judgment of the lower Appellate Court in A.S.No.1 of 2005 dated 02.01.2006 on the file of Sub Court, Arni, arising out of judgment made in O.S.No.163 of 2004 on the file of District Munsif Court, Polur, is confirmed and this Second Appeal is dismissed. In the circumstances of the case, there is no order as to costs.
mra
To
1. The Sub Judge, Arni.
2. The District Munsif,
Polur
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