Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 2997 (MAD)

M. Molayappa Gounder v. M. Subramanian

2007-09-13

C.NAGAPPAN

body2007
Judgment : C. NAGAPPAN, J. This appeal is preferred against the judgment and decree dated 5.12.1994 made in O.S. No. 123 of 1991 on the file of the Court of II Additional Subordinate Judge, Erode. The plaintiff is the appellant. 2. The plaintiff filed the suit seeking for a decree against the defendant for recovery of a sum of Rs. 77,000/- with subsequent interest and costs. The case of the plaintiff is that the defendant borrowed a sum of Rs. 50,000/- on 15.3.1988 from the plaintiff for his urgent family expenses promising to repay the same with interest at 18% per annum on demand either to the plaintiff or his order and executed a promissory note in favour of the plaintiff and inspite of repeated demands, the defendant did not pay any amount towards the principal or interest and on 2.2.1991, the plaintiff issued a legal notice to the defendant and the defendant sent a reply with false and untenable averments and the defendant is not entitled to any benefit under the Tamilnadu Debt Relief Act. 3. The defendant in his written statement has stated that he never borrowed any amount from the plaintiff and never executed any promissory note in his favour and the signature contained in the suit promissory note is not his signature and it is a forged one. According to the defendant, he and the plaintiff are close relatives and the plaintiff and one Murugayyan purchased a lorry jointly, bearing Registration No. TNG 2976, and used the same as public carrier and subsequently, the plaintiff requested the defendant to join as a partner for running the lorry and the defendant agreed and contributed a sum of Rs. 30,000/- in the year 1979 and thereafter, another lorry, bearing registration No. MDS 6886, was purchased in the name of the plaintiff on hire purchase, and in the year 1983, when Murugayyan left the business of the plaintiff and the defendant, the R.C. Book for the lorry, bearing Registration No. TNG 2976, was transferred to the defendants name and a sum of Rs. 7,000/- was paid to Murugayyan for his retirement from the partnership and subsequently, the plaintiff and the defendant jointly were running the public carrier and the plaintiff was in management and during that period, on account of the loss sustained and for the debts borrowed, the defendant paid a sum of Rs. 7,000/- was paid to Murugayyan for his retirement from the partnership and subsequently, the plaintiff and the defendant jointly were running the public carrier and the plaintiff was in management and during that period, on account of the loss sustained and for the debts borrowed, the defendant paid a sum of Rs. 10,000/- towards interest and the father of the defendant on his behalf paid a sum of Rs. 60,000/- on various dates for the repairs effected. It is further stated by the defendant that he and the plaintiff also borrowed debts from Karur Chit Funds jointly and executed the pro-note jointly and since the dues to the lorries were not paid properly, subsequent borrowing was made at Arachalur Sakthi Murugan Bankers and in the year 1987, the lorry, bearing Registration No. MDS 6886, was sold and in the year 1988, the other lorry, bearing Registration No. TNG 2976, was sold and the entire amount was utilised for discharge all the loans. It is further stated by the defendant that he has sustained a total loss of Rs. 1,00,000/-in running the lorries and the plaintiff became inimical with him alleging that he has sustained loss to the tune of Rs. 2,00,000/- and with a view to gain, if possible, the plaintiff has created a false pro-note and filed the suit based on the same and the attestor to the suit promissory note is a close friend of the plaintiff and the defendant does not know the Scribe of the suit promissory note. According to the defendant, there is no necessity to borrow such a huge amount and the plaintiff has no capacity to lend the amount and the defendant gave a suitable reply for the demand notice issued by the plaintiff. It is further stated by the defendant that he and the plaintiff have jointly executed pro-notes when they borrowed from Karur Chit Funds and Arachalore Sakthi Murugan Bankers and the plaintiff could have utilised the signatures in those pro-notes for forging the defendants signature in the suit promissory note and the plaintiff is not entitled to any relief in the suit. 4. The trial Court framed 6 issues and the plaintiff examined himself as P.W.1 and examined P.Ws.2 and 3 and marked Exhibits A-1 to A-20 on his side and the defendant examined himself as D.W.1 and examined D.W.2 and marked Exhibits B-1 to B-4 on his side. 4. The trial Court framed 6 issues and the plaintiff examined himself as P.W.1 and examined P.Ws.2 and 3 and marked Exhibits A-1 to A-20 on his side and the defendant examined himself as D.W.1 and examined D.W.2 and marked Exhibits B-1 to B-4 on his side. Exhibits C-1 to C-5 were marked as Court exhibits. The trial Court, on a consideration of oral and documentary evidence, held that the suit promissory note is not true and genuine and the plaintiff is not entitled for the relief and dismissed the suit. Aggrieved by the same, the plaintiff has preferred the present appeal. For the sake of convenience, in this judgment, the parties are referred to as arrayed in the suit. 5. Thepoints for determination in the appeal are: (1) Whether the signature found in the suit promissory note dated 15.3.1988 is not that of, the defendant and is a forged one. (2) Whether the plaintiff is entitled to the Euit claim. POINT Nos. 1 and 2: 6. Exhibits A-1 is the suit promissory note dated 15.3.1980. The case of the plaintiff is that the defendant borrowed a sum of Rs. 50,000/- from the plaintiff for his urgent family expenses and executed the suit promissory note in his favour. According to the defendant, he never borrowed any amount and never executed any pro-note in favour of the plaintiff and the signature contained in the suit promissory note is not that of his and it is a forged one. In view of the above denial, burden is on the plaintiff to prove the execution of the suit promissory note. In discharging the burden, the plaintiff examined himself as P.W.1 and examined P.W.2 as the only attesting witness and the Scribe as P.W.3. Though in chief examination P.W.2 has stated that Exhibit A-1 pro-note was written in the house of the plaintiff by P.W.3 and he put his signature as attesting witness in it, in the cross-examination he has stated that he did not see the defendant putting his signature in Exhibit A-1 Pro-note. The above testimony shows that P.W.2 did not witness the execution of the suit promissory note by the defendant and he is not an attesting witness. There is no other witness named in Exhibit A-1 Pro-note. P.W.3 is named as Scribe in Exhibit A-1 Pro-Note and according to him, the defendant received a sum of Rs. The above testimony shows that P.W.2 did not witness the execution of the suit promissory note by the defendant and he is not an attesting witness. There is no other witness named in Exhibit A-1 Pro-note. P.W.3 is named as Scribe in Exhibit A-1 Pro-Note and according to him, the defendant received a sum of Rs. 50,000/- from the plaintiff as loan and he wrote the suit promissory note and the defendant executed the same and P.W.2 attested it. 7. The trial Court has given reasons for not accepting the case of the plaintiff. The first one being that the plaintiff in his submission has stated that the loan was advanced and the suit promissory note was executed in Sivagiri and whereas in his testimony as P.W.1 he has stated that the pro-note was executed at his house in Marappanpalayam and this contradiction gives rise to suspicion. Secondly, the trial Court has pointed out that the plaintiff in hi” testimony as P.W.1 in the course of cross-examination has stated that the defendant brought the witnesses at the time of execution of the Pro-note and whereas P.W.2 in his cross-examination has stated that he was called by P.W.1 to sign as an witness in the suit promissory note and there is contradiction in their testimonies. Thirdly, it is pointed out that P.W.2 in his cross-examination has stated that he did not see the defendant affixing his signature in the suit promissory note. The fourth reason stated is that the plaintiff in his cross-examination as P.W.1 has stated that Exhibit A-1 Pro-note was written and signed by using one pen and different inks were not used and whereas P.W.3 in the cross-examination has stated that he wrote the suit; promissory note with ink pen and the defendant put his signature in it with ballpoint pen and there is contradiction in their testimonies. The last reason pointed out by the trial Court is that the hand-writing Expert has given, opinion in writing and has also testified that the signature found in the suit promissory note was not put by the defendant; besides, on comparison by the Court also it is held that the signature found in the Pro-note does not appear to be that of the defendant. 8. 8. The learnedcounsel for the appellant submitted that there are striking similarities in the signature found in Exhibit A-1 suit promissory note and the admitted signature of the defendant in Exhibit A-20 Receipt and the trial Court has omitted to consider the same and the defendant himself in his testimony has admitted thus: and the evidence of the Hand-writing Expert D.W.2 will not clinch the issue since in his cross-examination he has admitted that - and except Exhibit B-3 SSLC Book, all other documents, containing the admitted signatures of the defendant, sent for comparison have come into existence after the filing of the suit and hence, the comparison was not made in accordance with law and the signatures found in Exhibit B-3 SSLC Book, came into existence long time before the date of the suit promissory note and minor changes are possible in signature and the judgment of the trial Court is vitiated by non-consideration of materials available on record and in support of his contention, he relied on the following two decisions of this Court.1. Somasundaram v. Palani (1999) 3 MLJ 710 ; 2. Marappa Gounder and Others v. Kandasamy (2002) 3 MLJ 617 . 9. Per contra, the learned counsel for the respondent submitted that the trial Court has given valid reasons for not accepting the case of the plaintiff. 10. This Court in the decisions referred above has held that the comparison of signatures must be made only with the admitted .signature found in the documents that were in existence prior to the suit. In the present case, it cannot be said that all the documents containing the admitted signature have come into existence after the dispute arose, since Exhibit B-3, the SSLC Book of the defendant, came into existence much prior to the filing of the suit. According to D.W.2, Handwriting Expert of the Forensic Department, the disputed signature found in the suit promissory note was compared with the admitted signatures termed as A-1 to A-6 and S-1 to S-3 by enlarging their photographs and he has annexed the reasoning sheet along with- Exhibit B-4-Opinion. In the reasoning sheet six characteristic differences found between the questioned signature and the standard signature have been mentioned. 11. In the reasoning sheet six characteristic differences found between the questioned signature and the standard signature have been mentioned. 11. It is pointed out by the learned counsel for the appellant that D.W.2 in the cross-examination has stated that in the report they did not mention about the alignment, stroke, pen-leap and line quality of the signatures and a contention is raised that there is no proper comparison. This contention is devoid of merit since the comparison done by D.W.2 in the Forensic laboratory is a scientific one and the characteristic differences found have been elaborated in the reasoning sheet duly signed by two scientific Officers. 12. As already seen, P.W.2, the only witness named in the suit promissory note, had not seen affixing of signature by the defendant in the suit promissory note and hence it cannot be said that the plaintiff‘ has proved the execution of the suit promissory note. Moreover, there are contradictions in the testimonies of the witnesses examined by the plaintiff and their versions are doubtful. The plaintiff has failed to prove the execution of the suit promissory note by the defendant end he is not entitled to the suit claim as rightly held by the trial Court. The points are answered accordingly. 13. There are no merits in the appeal and the same is dismissed with costs.