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2008 DIGILAW 49 (MP)

Premnarayan v. Kailashchandra

2008-01-10

N.K.MODY

body2008
JUDGMENT N.K. Mody, J. 1. Being aggrieved by judgment and decree dated 29.9.2006 passed by Additional District Judge, Sonkatch, District Dewas whereby the suit filed by the respondent was decreed and the appellant was directed to pay a sum of Rs. 40,000/- along with interest @ 6% per. annum with effect from 1.8.2002, the present appeal has been filed. 2. Short facts of the case are that the respondent filed a suit for realization of Rs. 68,500/- on 19.7.2005 alleging that appellant and respondent are doing the business of Cutlery in Hat Bazar. Respondent gave a sum of Rs. 40,000/- to the appellant on 1.8.2002, which was payable along with interest @ 2% per month. It was alleged that appellant executed a promissory note in favour of respondent in presence of Jeevan Singh and Kama. It was alleged that since the loan amount was not paid by the appellant hence the sister of the respondent went to the house of the appellant in the year 2004 for demand, at that time appellant quarrelled with the sister of respondent. It was alleged that at that time appellant lodged a false complaint of Dinesh, who happens to be the brother of the respondent. Further case of the respondent was that a demand notice was issued to the appellant on 1.12.2004, which was duly received by the appellant on 4.12.2004. In response to the notice appellant asked for the photostate copy of the promissory note, which was made available to the appellant on 3.3.2005, thereafter false reply was given by the appellant, wherein it was denied that appellant has taken a sum of Rs. 40,000/ - and executed the promissory note. It was alleged that respondent is entitled for a sum of Rs. 68,500/-, which includes the interest @ 2% per month. Appellant filed written statement, wherein all the plaint allegations were denied. It was denied that appellant has received a sum of Rs. 40,000/- and has executed the promissory note in favour of respondent. 3. It was alleged that appellant was in good terms with the father of the respondent. Appellant took loan of Rs. 9,000/- in the year 1999 and the same has been repaid by the appellant along with interest. It was further alleged that in the year 2004 the brother and sister of respondent namely Dinesh and Kantapressurized the appellant to pay further a sum of Rs. Appellant took loan of Rs. 9,000/- in the year 1999 and the same has been repaid by the appellant along with interest. It was further alleged that in the year 2004 the brother and sister of respondent namely Dinesh and Kantapressurized the appellant to pay further a sum of Rs. 6,500/- on account of interest and quarrelled with the son of the appellant Mohit on 2.10.2004, therefore, appellant lodged a complaint on 2.10.2004 on the basis of which criminal case was registered against Dinesh at Police Station, Sonkatch under Sections 294, 506, 324 and 323, IPC. It was prayed that the suit filed by the respondent be dismissed. 4. On the basis of pleadings of the parties, learned Court below framed the issues and recorded the evidence and decreed the suit, against which the present appeal has been filed. 5. Mr. R.K. Vyas, learned Counsel for the appellant submits that learned Court below committed error in decreeing the suit. Learned Counsel submits that the most important witness of the document was Jeevan Singh, in whose presence the amount of Rs. 40,000/- has been paid and who has filled in the promissory note in his own handwriting. Learned Counsel submits that Jeevan Singh was not examined by the respondent. It is further submitted that Smt. Kanta, who was the other witness of the document was the real sister of the respondent and was bound to support the respondent. Learned Counsel further submits that learned Court below committed error in playing the role of a handwriting expert in comparing the document Ex. P/1 with other documents. Learned Counsel placed reliance on a decision of Hon'ble Apex Court in the matter of Murarilal v. State of M.P. AIR 1980 SC 531 , wherein the Hon'ble Apex Court has observed that "further by comparing the writing itself, the Court would not assume to itself the role of an expert. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative text book and the Court's own experience and knowledge. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative text book and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. 6. Further reliance was placed on a decision of this Court in the matter of Dhannalal v. Dharamlal , wherein it was held that "it is settled that although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, he should as a matter of prudence and caution, hesitate to base his finding solely on comparison made by himself. The prudent course is to obtain the opinion and assistance of an expert. Thus, it seems that the Court below without having any evidence on record to assist him to compare the disputed signature with that of standard one, making observations in the impugned judgment, totally disbelieved and discarded the statement of prosecution witnesses in preference to the statement of defence witness. The approach of the Court below is highly prejudicial in exercising the jurisdiction vested in it by Section 73. Therefore, the Court below acted with material irregularity and illegality". Mr. Vikas Rathi, learned Counsel for respondent submitted that the judgment and decree passed by the learned Court below is based on the documentary evidence. Ex. P/1, which was signed by the appellant and after due comparison with the other admitted signature, the learned Court below has rightly decreed the suit, which requires no interference. 7. Undoubtedly none of the parties was examine by the handwriting expert. The learned Court below in exercise of powers conferred by Section 73 of the Evidence Act tried to compare the disputed signature with the admitted signature of the appellant and held that the signature on Ex. P/1 are identical with the admitted signature. Learned Court below has completely overlooked number of material facts which ought to have been taken into consideration, which are as under: 1. Learned Court below overlooked the fact that the document Ex. P/1 does not bare the recital of the appellant to the effect that appellant has received a sum of Rs. P/1 are identical with the admitted signature. Learned Court below has completely overlooked number of material facts which ought to have been taken into consideration, which are as under: 1. Learned Court below overlooked the fact that the document Ex. P/1 does not bare the recital of the appellant to the effect that appellant has received a sum of Rs. 40,000/- from the sister itself, it can be assumed that appellant is a literate man, therefore, there ought to have been recital of the appellant in his own handwriting to the effect that appellant has received a sum of Rs. 40,000/-. No explanation is given by the respondent to the effect that why the document Ex. P/1 does not bear the acknowledgement of receipt of Rs. 40,000/- in the handwriting of respondent himself and also why the document Ex. P/1 was not filled in by the appellant in his own handwriting. 2. Most important witness of the document Ex. P/1 was Jeevan, who was a independent witness and who filled in the promissory note Ex. P/1 in his own handwriting. There is no explanation on the part of the respondent to the effect that why such a important witness was not examined, in whose presence transaction of payment of Rs. 40,000/-took place. 3. There is no corroborative evidence to prove that at the time of execution of the document Ex. P/1 respondent was possessing a sum of Rs. 40,000/-. In the evidence of PW-2 Kantabai, it has come that the respondent is a small businessman, who neither pays income tax nor possessing licence of sales tax and is also not having any Bank account. Such a small man who is doing the small business of Cutlery in a weekly Hat B azar was possessing a sum of Rs. 40,000/- at the relevant time, was required to be proved by cogent evidence. 4. In the suit it is nowhere alleged that when the loan amount was repayable. Since alleged loan was given by the respondent to the appellant for business purpose, therefore, there ought to have been some condition to the effect that the amount shall be repaid by the appellant within a fixed period. 5. Alleged loan transaction is dated 1.8.2002 and no action was taken by the respondent till 1.12.2004 i.e. for a period of two years and four months when the notice Ex. 5. Alleged loan transaction is dated 1.8.2002 and no action was taken by the respondent till 1.12.2004 i.e. for a period of two years and four months when the notice Ex. P/2 was issued by the respondent. This action was taken by the respondent after registration of criminal case against Dinesh, brother of respondent. It is true that Section 73 of the Evidence Act enables the Court to compare the disputed writings with admitted writings to ascertain whether a writing is that of the person by whom it purports to have been written. For exercising the jurisdiction under Section of the Act the Court is required to take guidance from some authoritative text book and the Court's own experience and knowledge. It seems that the Court below without taking any guidelines from any of the text book or authority to assist him to compare the disputed signature with the admitted one made observations in the impugned judgment, totally disbelieved and discarded the oral evidence on record, therefore the Court below acted with material irregularity and error. 6. No document of the criminal case was filed by the respondent, which could have thrown light on the issues whether an amount of Rs. 40,000/- was taken by the appellant or not. 8. In view of this appeal filed by the appellant stands allowed. The judgment and decree passed by the learned Court below stands set aside, No order as to costs.