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2009 DIGILAW 145 (MAD)

F. Ashok Kumar v. T. Kamalakannan

2009-01-19

G.RAJASURIA

body2009
Judgment :- Animadverting upon the order dated 03.03.2008 passed by the learned XIV Assistant Judge, City Civil Court, Chennai, in I.A.No.7247 of 2007 in O.S.No.2484 of 2004, this civil revision petition is focussed. 2. Heard both sides. 3. The facts giving rise to filing of this revision petition as stood exposited from the records could succinctly and precisely, pithily and briefly be set out thus: The respondent herein filed the suit O.S.No.2484 of 2004 in City Civil Court, Chennai as against the revision petitioner herein, seeking the following reliefs: "a) For a declaration that the cheque bearing No.481262 dated 35. 2004 drawn on the Oriental Bank of Commerce, T.Nagar Branch was obtained from the plaintiff by using undue influence, coercion and fraud and thereby ab initio void and invalid; b) Directing the defendant to pay the cost of the suit to the plaintiff." 4. It appears that the trial commenced and evidence was let in on the side of the plaintiff. While the plaintiff attempted to mark the photocopy of a letter, the revision petitioner/defendant herein objected to the marking, whereupon the trial Court also recording the objection did not permit the plaintiff to mark such photocopy of the letter. Thereafter I.A.No.7247 of 2007 was filed praying the Court to refer the copy of the letter purported to contain the signature of the revision petitioner herein so as to compare the same with the signatures of the defendant in the Vakalat and the written statement. The lower Court allowed it vide the order dated 03.03.2008. 5. Animadverting such allowing of the petition, this revision is focussed on various grounds. 6. The learned counsel for the revision petitioner placing reliance on the grounds of revision would develop his argument to the effect that the photocopy of the letter is an unauthentic one and the trial Court should not have placed reliance on the same and ordered such a letter to be sent to the expert for comparing the disputed signature with that of the admitted signatures in the Vakalat and written statement before the lower Court; the said I.A. and the suit were filed purely for the purpose of dragging on the proceedings in C.C.No.7112 of 2004 initiated by the revision petitioner herein under Section 138 of the Negotiable Instruments Act. 7. 7. At this juncture I would like to highlight the common or garden principle of law that unauthentic document cannot be the basis for any decision. Here the impugned letter is a photocopy. The defendant objected even at the time of marking, whereupon the said document was not marked and in such a case, I am at a loss to understand as to how the trial Court simply could have found any reason in sending the same unauthenticated and unproved document to the expert for comparison. There is also nothing to indicate that in the photocopy there is any endorsement that it is a true copy of the original letter, which is purported to be available with the revision petitioner. However the revision petitioner would deny and refute such execution of letter and also the availability of such letter in his possession. It is a matter of evidence before the lower Court and it is for the plaintiff to prove his case. 8. I would also like to point out that whenever a partys signature is sent to the expert for opinion, he should secure before the Court anti litum motem signature/handwriting and comparison could be effectively be made with those anti litum motem signature/handwriting. But in this case, the plaintiff without taking any such steps, simply tried his level best to place reliance on the signature found in the Vakalat as well as the written statement. 9. Above all, I would like to reiterate without being tautologous that unless there is some authenticity about the copy of the letter, which is sought to be sent for handwriting expert, there is no question of sending the same for comparison. 10. Hence in this view of the matter, I am of the opinion that the ratiocination adhered to by the lower Court is not sound and accordingly the order of the lower Court is set aside. While holding so, I make it clear that it is for the plaintiff to prove his case before the Court and it is for the Court to evaluate the evidence untrammeled and uninfluenced by any of observations made by this Court in this order. Accordingly, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.