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2008 DIGILAW 2090 (MAD)

Abdul Hameed (deceased by LRs) & Others v. Senkottai Gounder (deceased by LRs) & Others

2008-06-30

G.RAJASURIA

body2008
Judgment : This appeal is focused as against the judgment and decree dated 24. 1990 made in O.S.No.14 of 1989 on the file of the learned Subordinate Judge. Erode, Periyar District. For convenience sake the parties are referred to hereunder according to their litigative status before the trial Court. 2. Niggard and bereft of details, the case of the plaintiff as stood exposited from the plaint could be portrayed thus: The defendants jointly borrowed a sum of Rs.25,000/- from the plaintiff on 1. 1986 and in consideration of the same, the suit promissory note Exhibit A-1 was executed by them undertaking to repay the same with interest at 12% p.a. Subsequently, they committed default in paying the amount despite demand. The plaintiff after issuing pre-suit notice dated 112. 1998 which evoked no response, filed the suit for recovery of the amount due under the pro-note with interest and costs. 3. Per contra, denying and refuting, challenging and impugning the allegations/averments in the plaint, the first defendant filed the written statement, which was adopted by the second defendant. The gist and kernel of it, would run thus: The defendants did not borrow a sum of Rs.25,000/- much less any sum from the plaintiff on 1. 1986 and they did not execute the promissory note also. The plaintiffs pre-suit notice was duly replied by the defendants by sending their reply notice on 112. 1988. The plaintiff is none but the relative of D2. There was a dispute relating to D2’s father’s properties and the plaintiff intervened for settling the dispute, but, the defendants did not agree to it. Hence, the plaintiff with the connivance of the relatives of the second defendant forged and created the suit promissory note so as to coerce the defendants. Accordingly, they prayed for the dismissal of the suit. 4. The trial Court framed the relevant issues. During trial, the plaintiff examined himself as P.W.1 along with P.Ws.2 and 3, the attestors and P.W.4, the scribe of Exhibit A-1 and Exhibits A-1 to A-5 were marked. The first defendant examined himself as D.W.1 and Exhibits B-1 to B-12 were exhibited on the side of the defendants. The trial Court ultimately decreed the suit as prayed for and also awarded subsequent interest at the rate of 6% p.a. on the principal amount from the date of the suit till the date of repayment. 5. The first defendant examined himself as D.W.1 and Exhibits B-1 to B-12 were exhibited on the side of the defendants. The trial Court ultimately decreed the suit as prayed for and also awarded subsequent interest at the rate of 6% p.a. on the principal amount from the date of the suit till the date of repayment. 5. Being aggrieved by and dissatisfied with the judgment and the decree of the trial Court, the appellants/defendants has filed this appeal on the following grounds among others: (a) The judgment and the decree of the trial Court is against law, weight of evidence and all probabilities of the case. (b) Despite the defendants denied their signature and thumb impression affixed in Exhibit A-1, nonetheless, the trial Court simply decreed the suit without any proof. (c) Ignoring the fact that in the Vakalat D2’s signature is found but in the pro-note, Exhibit A-1, her signature is not found but only her purported thumb impression, the trial Court decreed the suit. (d) Disregarding the inconsistencies and contradictions in the deposition of P.Ws.2 and 3, the trial Court decreed the suit without considering the fact that D1 is a man of immense means and that he had no necessity to borrow money much less a sum of Rs.25,000/- under Exhibit A-1 pro-note. Accordingly, the appellant prayed for setting aside the judgment and decree of the trial Court and for the dismissal of the original suit. 6. Heard the learned counsel appearing for the appellants/defendants and there is no representation on behalf of the respondents/plaintiffs. 7. the points for consideration are as to: (1) Whether the trial Court decreed the suit erroneously believing Exhibit A-1 as a genuine document and without having any evidence before it? (2) Whether there is any infirmity in the judgment and the decree of the trial Court? 8. Point No.1: Learned counsel for the plaintiff would advance his arguments that in view of the defendants having denied the signature/thumb impression in the suit promissory note, the trial Court should have expected expert evidence to prove the genuineness of such signature/thumb impression; however, the lower Court did not do so. 9. At this context, I would like to recollect the trite proposition of law that in all cases, invariably the Court is not expected to expect, expert evidence to prove the genuineness of the signature/thumb impression. It all depends upon case to case. 9. At this context, I would like to recollect the trite proposition of law that in all cases, invariably the Court is not expected to expect, expert evidence to prove the genuineness of the signature/thumb impression. It all depends upon case to case. Once the attesting witnesses and the scribe do depose on oath the relevant circumstances relating to the emergence of a pro-note, then there would be no necessity to go for an expert evidence. The onus probandi initially is on the plaintiff to prove the case and in commensurate with the said principle, the plaintiff examined himself as P.W.1 along with P.Ws.2 and 3, the attestors of Exhibit A-1 and over and above that, the scribe also was examined as P.W.4. It is therefore, just and necessary to scrutinize as to whether the evidence adduced on the plaintiff’s side is free from doubt. 10. The learned counsel for the defendants would submit that there are contradictions between the depositions of P.Ws.2 and 3 to the effect that P.W.1, in his deposition has narrated as though, the attesting witnesses signed only before the defendants having signed Exhibit A-1. Whereas P.W.3 would depose otherwise. 11. D2 is the wife of D1 and according to the latter, the former is a Pardhanashin lady and that was why D2 did not figure as a witness before the Court. He would also narrate that the partition suit O.S.No.480 of 1986 at the relevant time was pending in the Court and that the plaintiff attempted to bring about a compromise, which was not agreeable to the defendants and whereupon, he fabricated the suit promissory note. However, D.W.1 would admit that plaintiff is in the habit of lending money for interest. The first defendant relied on his documents Exhibits B-1 to B-12 to prove his financial status so as to canvass his point that he had no necessity to borrow money from the plaintiff. It is common knowledge that, simply because, the person is owning agricultural properties and immovable properties, there is no presumption that he could not have borrowed money from any one. The learned counsel for the plaintiff would submit that even the thumb impression in Exhibit A-1 was not clear. 11A. It is common knowledge that, simply because, the person is owning agricultural properties and immovable properties, there is no presumption that he could not have borrowed money from any one. The learned counsel for the plaintiff would submit that even the thumb impression in Exhibit A-1 was not clear. 11A. The perusal of the deposition of P.W.2 Palanisamy would reveal that during chief examination, he copiously and cogently, detailed and delineated the facts to the effect that he witnessed the scribe writing the pro-note and reading out the contents and thereafter, he signed it after D1 having signed Exhibit A-1 and D2 having affixed her thumb impression. No doubt, during cross-examination, he would state as though, he signed first the pro-note format and thereafter the defendants executed the same. However, P.W.3, Ramasamy would depose correctly that the defendants executed the pro-note only thereafter, he put his signature. P.W.4, the scribe also cogently narrated that the defendants executed the pro-note and thereafter, the witnesses attested the promissory note, Exhibit A.1. It is therefore, crystal clear that simply because P.W.2 during cross-examination unwittingly quipped as though he had signed Exhibit A-1 as an attestor and thereafter alone D1 and D2 had put their signature/thumb impression would not in any way be fatal to the case of the plaintiff. It is a common or garden principle that witnesses might lie but the circumstances will not lie and that the preponderance of probabilities would govern the adjudication in civil case. P.W.1 along with his witnesses, P.Ws.2 to 4 established before the Court that he gave a sum of Rs.25,000/- to the defendant and that in consideration of the same only, Exhibit A-1, pro-note, emerged. As such the initial burden of proof was discharged by the plaintiff whereas the defendants who went to the extent of disowning the signature/thumb impression, should have if at all they had a good case of their own should have sought for an expert opinion. But, they have not chosen to do so. Hence, they cannot raise their accusative finger at the appellate stage now, that the trial Court should have gone for an expert opinion. 12. The learned counsel for the appellants/defendants would submit that in Exhibit A-1, there is material alteration. But, they have not chosen to do so. Hence, they cannot raise their accusative finger at the appellate stage now, that the trial Court should have gone for an expert opinion. 12. The learned counsel for the appellants/defendants would submit that in Exhibit A-1, there is material alteration. A mere perusal of Exhibit A-1 would demonstrate that in the body of Exhibit A-1, the sum of Rs.25,000/- had been correctly specified, over and above it is found written in “words” also. However, in the rectangular column all the left side of it, it was initially found written as Rs.2,50,000/- in number but as such one zero was found added additionally and mistakenly and accidentally. However, the last zero was struck off, so as to make it as Rs.25,000/- P.W.4, the scribe also would convincingly expound and explain that erroneously one zero crept in which was immediately corrected by him and it was also initialed by him. I am at a loss to understand as to how the defendants could make a mountain out of a mole hill. To the risk of repetition without being tautologous, in the body of Exhibit A-1, absolutely, there is no correction as already set out supra whereas in the rectangular column, which is nothing but a redundant and surplusage, an error had crept in as aforesaid and it was rectified immediately as spoken to by P.W.4. In such a case, it is not known as to how the defendants could place reliance on Section 87 of the Negotiable Instruments Act so as to persuade the Court to draw adverse inference as against Exhibit A-1 pro-note. There are catena of decisions, which would highlight and spotlight that all alterations would not amount to material alteration. Only such of those alterations, which are creating doubt about the genuineness of the pro-note would be considered material and attract Section 87 of the Negotiable Instruments Act. Here, in the body of the pro-note in figures as well as in words, the amount was found written clearly without any alteration. However, only in the rectangular column as a surplusage while the scribe was writing the amount in figures one zero had additionally crept in. Hence, no more elaboration on this aspect is required because, it is explicitly and pelucidly clear that in Exhibit A-1, there is no material alteration at all. 13. However, only in the rectangular column as a surplusage while the scribe was writing the amount in figures one zero had additionally crept in. Hence, no more elaboration on this aspect is required because, it is explicitly and pelucidly clear that in Exhibit A-1, there is no material alteration at all. 13. The learned counsel for the appellants/defendants would argue that the defendant No.2 put her signature in the vakalat, whereas in Exhibit A-1, according to the plaintiff, she had affixed her thumb impression and as such looking askance at it, the learned counsel would advance his arguments that the trial Court should not have believed Exhibit A-1 as a genuine pro-note. 14. Before placing reliance on this ground as put forth before this Court, during cross examination itself, P.W.1 or the witness should have been asked as to why the plaintiff had chosen to obtain the thumb impression of D2, when D2 at that time itself was capable of putting her signature. Without cross-examining the plaintiffs witness on that line, I am of the considered opinion that all of a sudden, simply by relying on the signature of D2 in the vakalat, the learned counsel for the defendants cannot develop their arguments. Even in the written statement, such a plea was not taken to the effect that D2 was a literate and even then D2’s purported thumb impression was alleged to have been taken. In the written statement filed by D1, which was adopted by 2, there was only total denial, wherefore, this Court cannot countenance the aforesaid plea of the defendants. 15. The plaintiff would come forward with a specific case as though the plaintiff attempted to mediate but, it ended in a fiasco and therefore, actuated and accentuated, propelled and impelled by it, the plaintiff fabricated and forged such a pro-note, Exhibit A-1 so as to coerce the defendants, presumably to make them to agree for an unjustifiable compromise relating to the property dispute. Absolutely, there is no cogent and convincing evidence in that regard. 16. The learned counsel for the appellants/defendants would submit that even the purported thumb impression of D2 is not clear. Absolutely, there is no cogent and convincing evidence in that regard. 16. The learned counsel for the appellants/defendants would submit that even the purported thumb impression of D2 is not clear. The deposition of P.W.4, the scribe would amply make the point that the ink pad was found to be not having sufficient ink got soaked in it and therefore, a pen was used to smear the left thumb of D2 and in view of the same, such left thumb impression of D2 is partially found affixed in Exhibit A-1. 17. The scrutiny of Exhibit A-1 would reveal that it is not as though the left thumb impression of the second defendant is totally found smudged or illegible, but it is partially blurred. It is well known that in order to ascertain and analyze the thumb impression, eight characteristics would be sufficient. But here, such characteristics could rightly be noted from the thumb impression affixed. Moreover, the plaintiff by examining witnesses on his side convincingly established his case and discharged his burden and if at all the defendant had any definite case, they could have very well obtained the opinion of finger print expert or hand writing expert. But, they did not do so for the reasons best known to themselves. 18. Therefore, it is crystal clear that the defendant in order to wriggle out of the liability to pay the suit amount dished out a theory as though the plaintiff attempted to compromise and since it did not fructify, he fabricated such a false pro-note. There is nothing to show that the plaintiff is a party to the partition suit. I could see no probability in the theory as put forth by the defendants. 19. In the result, I could see no infirmity in the judgment and decree of the trial Court and accordingly, the point No.1 is decided in favour of the plaintiff as against the defendants. Point No.2: 20. In view of the discussion supra, there is no impediment for confirming the Judgment and decree of the trial Court and accordingly, the appeal is dismissed. However, there shall be no order as to costs.