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2005 DIGILAW 434 (MAD)

D. Kandan v. Lakshmi and others

2005-03-11

S.K.KRISHNAN

body2005
JUDGMENT: Aggrieved by the judgment and decree dated 6.8.1993 passed in A.S.No.41 of 1988 on the file of the Subordinate Court, Sankari reversing the judgment and decree dated 25.2.1988 made in O.S.No.240 of 1983 on the file of the District Munsif Court, Mettur, the plaintiff has come forward with this second appeal. 2. The case of the plaintiff, in-brief, is as follows: (a) The husband of the first defendant, namely, Muthusamy, received a sum of Rs.5, 000 from the plaintiff by executing a pro-note in favour of him and also agreed to pay interest at the rate of 12% p.a. After the receipt of the said amout, the husband of the first defendant died and left behind the defendants as his legal heirs. However, since the defendants have not paid any amount to the plaintiff in spite of repeated demands, the plaintiff has filed a suit to decree the same. 3. In the writtent statement filed by the second defendant though it is accepted that the first defendant is the widow, second and third defendants are the daughters and the fourth defendant is the son of the said Muthusamy, it is stated that the suit promissory note is not a true one and is not supported by any consideration. The alleged signature in the suit promissory note is not the signature of the said Muthusamy and the suit promissory note is a forged document. One Semmalai, who is the attester of the promissory note, was working as Watchman along with the father of the second defendant in Madras Aluminium Company Ltd. The said Semmalai, after the death of the said Muthusamy, demanded Rs.4,000, which he gave to the said Muthusamy, from the defendants 1 and 2 and that when the defendants asked for the document, he said that he had no document. Thereafter, the said Semmalai by fabricating the said promissory note in the name of the plaintiff, who is his relative, has filed the above suit to harass the defendants and therefore, the same has to be dismissed. 4. The second appeal was admitted on the following substantial question of law. “Whether the judgment of the lower appellate Court is vitiated by its failure to consider the entire evidence on record and apply the correct principles of law?” 5. 4. The second appeal was admitted on the following substantial question of law. “Whether the judgment of the lower appellate Court is vitiated by its failure to consider the entire evidence on record and apply the correct principles of law?” 5. It is an admitted fact that the case instituted by the plaintiff against the defendants ended in favour of the plaintiff. Against that decision passed by the trial Court, the defendants preferred an appeal. The lower appellate Court allowed the appeal. As against the judgment and decree passed by the lower appellate Court, the plaintiff has preferred this second appeal. 6. The two main points have to be decided in this appeal are as follows: (a) Whether the execution of the promissory note dated 24.12.1981, which was said to have been executed by Muthusamy in favour of the appellant/plaintiff, is proved or not? (b) If the execution of the promissory note in favour of the plaintiff by the father of the second defendant as stated by the plaintiff is not proved, then it is a question to be decided whether the suit filed by the plaintiff is sustainable under law and in the contra, the execution of the promissory note is proved, whether the plaintiff followed the procedures as prescribed in the Act and whether the defendants are liable to pay the amount received by late Muthusamy. 7. The case of the plaintiff is that through Semmalai (P.W.2), the husband of the first defendant Muthusamy approached the plaintiff and received a sum of Rs.5,000 from him by executing a promissory note dated 24.12.1981 with a condition to repay the same with 12% interest thereon on demand. Subsequently, the husband of the first defendant passed away. Thereafter, the plaintiff institued a suit against the legal heirs of late Muthusamy for the recovery of the same. 8. Denying the borrowing of the said amount and also the execution of the said promissory note, the second defendant has stated that after the death of her father, P.W.2. Semmalai approached her and demanded money, which was said to be borrowed by her father from P.W.2. 9. The case of the defendants is that the late Muthusamy had never received any amount from the plaintiff and executed the promissory note promising to repay the same with 12% interest. 10. Semmalai approached her and demanded money, which was said to be borrowed by her father from P.W.2. 9. The case of the defendants is that the late Muthusamy had never received any amount from the plaintiff and executed the promissory note promising to repay the same with 12% interest. 10. It is contended by the learned counsel for the defendants that the promissory note is not supported by any consideration and the signature found in Ex.A-1 is a forged one. It is stoutly denied by the defendants that the signature found in Ex.A-1 is not the signature of late Muthusamy. The second defendant has stated that after the death of her father, P.W.2 Semmalai approached her and informed that her father, received a sum of Rs.4,000 from him and promised him to provide a job to his brother-in-law. Following such demand from P.W.2, the first defendant asked him to produce any documentary evidence in connection with the said transaction. P.W.2 Semmalai had not produced any document as demanded by the first defendant. Subsequently, P.W.2 forged the said promissory note and thereafter, he instructed his brother-in-law, the plaintiff herein, to institute a suit against the legal heirs of late Muthusamy for the recovery of the said amount. 11. While adducing evidence before the trial Court, D.W.1 has reiterated the averments made in the written statement. Since the first defendant has categorically denied the execution of the said document, namely, Ex.A-1, it was forwarded along with the admitted signatures of late Muthusamy to get an opinion from the handwriting expert with regard to the genuineness of the signature of late Muthusamy. The admitted signatures of late Muthusamy were acknowledged by D.W.3 and D.W.4. D.Ws.3 and 4 were working in the same Company, in which, the late Muthusamy was working as a watchman. After the comparison of Ex.A-1, D.W.2 while adducing evidence he opined that signature No. 1 was not written by the hand, which wrote signature No.2 and therefore signature No. 1 is the product of forgery. 12. As already discussed above, the case of the plaintiff is that on 24.12.1981 the late Muthusamy came to his house along with one Gopal and after the execution of the said promissory note, he received money from P. W. 1 in the presence of P.W.2 Semmalai and one Kandasamy. Since Kandasamy, who is one of the attesters of Ex.A-1, died, he was not examined. Since Kandasamy, who is one of the attesters of Ex.A-1, died, he was not examined. The said Gopal, who had written Ex.A-1, also died. The only witnesses on the side of the plaintiff is P. W.1 and P.W.2. P. Ws. 1 and 2 have categorically stated that the late Muthusamy received Rs.5,000 from P.W.1 in the presence of the said persons and thereby the execution of Ex.A-1 is categorically proved and it is contended that Ex.A-1 is supported by consideration. 13. In this connection, the learned counsel appearing for the appellant/plaintiff would emphasise that the expert opinion given by D. W.2 could not be taken into consideration and the same could not be believed for the reasons that the opinion given by D.W.2 is not a conclusive one and in support of his contention, the learned counsel relied on the following decisions. (a) Shashi Kumar Banerjee and others v. Subodh Kumar Banaerjee (since deceased) and after him his legal representatives and others, A.I.R.1964 S.C.529; (b) Ishwari Prasad Misra v. Mohamad Isa, A.I.R.1963 S.C.1728; (c) Ram Narain v. State of U.P. (1974)1 S.C.J. 534: 1974 M.L.J.(Crl)237: A.I.R.1973 S.C.2200 ; (d) Magan Bihari Lal v. State of Punjab, A.I.R. 1977 S.C.1091; (e) S.Gopal Reddy v. State of A.P., A.I.R. 1996 S.C.2184; (f) Pranenda Mohan Das v. Central Bank of India, A.I.R. 1978 Cal.55; (g) Rajmal v. Islam Mohamed, A.I.R. 1958 Raj.6. 14. What was laid down in all the above decisions that the expert opinion could not be considered as a conclusive one. 15. In such circumstances, it is vehemently pointed out by the learned counsel that the learned Subordinate Judge, without considering the evidence of P.Ws.l and 2 has passed the judgment and decree and therefore, the same is not sustainable under law. Further, the reason given by the learned Subordinate Judge for not accepting the evidence of P.Ws.1 and 2 is not convincing and therefore, the decision arrived at by the learned Subordinate Judge on the basis of such unconvincing reason has to be set aside. 16. It is further pointed out that when P.Ws.1 and 2 have categorically stated about the receipt of money with a condition to repay on demand and execution of Ex.A-1, it is presumed that the consideration is also passed on to late Muthusamy. In such circumstances, without appreciating the said legal principles, the learned Subordinate Judge decided the case in a wrong perspective. In such circumstances, without appreciating the said legal principles, the learned Subordinate Judge decided the case in a wrong perspective. 17.Per contra, the learned counsel appearing for the respondents/defendants would submit that the case stated by the plaintiff is not a genunine one and the execution of Ex.A-1 Promissory note is also not proved. If the father of the second defendant received any amount from the plaintiff, then it was the bounden duty of the plaintiff to issue legal notice to the defendants demanding them to pay the said amount. However, the plaintiff has not come forward to issue such notice to the defendants demanding the said amount. 18. It is pointed out that P.W.2 Semmalai, who was working as a watchman along with late Muthusamy, in connivance of P.W.I, who is the brother-in-law of P.W.2, might have fabricated the Ex.A-1 and thereafter instituted the suit against the defendants. 19. It is stated by the second defendant that the signature found in Ex.A-1 is not the signature of her father and the same was verified by D.W.2 by comparing the admitted signatures of late Muthusamy. 20. In this connection, it is pointed out by the learned counsel that D.W.2, after analysing the signature found in Ex.A-1 with the admitted signatures, has concluded that the signature found in Ex.A-1 might be a forged one and the reasons given by D.W.2 are quite convincing and have to be accepted. 21. Further, the learned counsel would point out that a careful persual of Ex.A-1 and the admitted signatures of late Muthusamy would clearly expose the dissimilarity between the two signatures. In such circumstances, it is pointed out by learned counsel that since Ex.A-1, is not a genuine one but it is forged one, the transaction as stated by P.Ws.1 and 2 could not have occurred. Moreover, P.W.2, who is the uncle of P.W.1, is an interested witness. In such circumstances, whatever the evidence adduced by P.W.2 could not be considered for the reason that he is an interested witness. 22. In the absence of any evidence corroborating the receipt of Rs.5,000 from P.W. 1 by late Muthusamy other than P.W.2 and consequently the execution of Ex. A-1, it cannot be decided that the husband of the first defendant had received Rs.5,000 from the plaintiff on the execution of Ex.A-1. 23. 22. In the absence of any evidence corroborating the receipt of Rs.5,000 from P.W. 1 by late Muthusamy other than P.W.2 and consequently the execution of Ex. A-1, it cannot be decided that the husband of the first defendant had received Rs.5,000 from the plaintiff on the execution of Ex.A-1. 23. In the above stated circumstances, the learned counsel appearing for the respondents/ defendants would earnestly submit that the case of the plaintiff that late Muthusamy had received money and executed Ex.A-1 is categorically proved by the first defendant as a false one. 24. Moreover, the learned counsel would submit that while deciding the case, the lower appellate Court has analysed the entire aspects of the case and thereafter, it has come to the conclusion that the case stated by the plaintiff is not sustainable under law and accordingly, the learned Subordinate Judge rightly allowed the appeal by setting aside the judgment and decree of the trial Court. Therefore, no interference is warranted in this appeal to set aside the judgment and decree of the lower appellate Court. 25. As already discussed above, while arriving a decision, the lower appellate Court has categorically analysed the entire evidence adduced by either parties and thereby it concluded that no consideration was passed on under Ex.A-1 and the signature found in Ex.A-1 is a forged one. Therefore, the decision of the learned Subordinate Judge, which was based on the oral and documentary evidence and also the correct principles of law, cannot be interfered with as the same is not vitiated. 26. The substantial question of law is answered accordingly, 27. In result, the second appeal fails and it is dismissed confirming the judgment and decree of the lower appellate Court. No costs.