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2011 DIGILAW 2142 (PNJ)

Jasmail Kaur v. Malkiat Singh

2011-12-01

G.S.SANDHAWALIA

body2011
JUDGMENT Mr. G .S. Sandhawalia, J.: - The present appeal has been preferred by the plaintiff who is aggrieved against the judgment and decree dated 2.3.1989 passed by the Lower Appellate Court, Barnala wherein the appeal of the defendant was allowed and the suit of the plaintiff was dismissed. 2. The facts of the case are that the plaintiff-appellant filed a suit for recovery of Rs. 12,000/- out of which Rs. 9600/- was the principal amount and Rs. 2400/- was the interest thereon. The plaintiff alleged that the defendant had taken a loan of Rs. 9600/- and had agreed to pay interest @ 2% per month and executed pronote and receipt in her favour which had been scribed by one Bindra Ban petition writer. The said pronote and receipt were signed by the defendant and the receipt was attested by Randhir Singh and Basakhi Mal. Accordingly, it was pleaded that interest on the loan amount came to Rs. 2400/- and that the plaintiff had served a notice on the defendant and also asked him to repay the loan but he has failed to make any payment. In the defence, the defendant has denied having obtained any loan on 22.10.1982 and had stated that the pronote and receipt are forged documents and the plaintiff who was money lender could not sue without obtaining the money lending license. 3. Replication was filed by the plaintiff controverting the allegations and reiterating the stand taken in the plaint, on the basis of which the following issues were framed:- 1. Whether the defendant executed a pronote and receipt dated 22.10.82 in favour of the plaintiff for Rs. 9600/- and agreed to pay interest at the rate of Rs. 2% per month? OPP 2. If issue No. 1 is proved, whether the pronote and receipt are without consideration? OPD 3. Whether the plaintiff is a money lender if so its effect? OPD 4. Relief. 4. The trial Court after examining the statements of the witnesses and documents on the record and also examining the disputed signatures of Malkiat Singh on the pronote and receipt, signatures on the written statement and on a sale deed came to the conclusion that they were identical and appear to have been written by one person. OPD 4. Relief. 4. The trial Court after examining the statements of the witnesses and documents on the record and also examining the disputed signatures of Malkiat Singh on the pronote and receipt, signatures on the written statement and on a sale deed came to the conclusion that they were identical and appear to have been written by one person. The reasons given by the document expert Varinder Bhushan Bhatnagar - PW-3 was also taken into consideration and found to be more reliable than the opinion of the expert produced by the defendant DW-3 Dewan K.S. Puri. It was also noted by the trial Court that Beer Singh and the plaintiff were also present at the time of execution of the pronote and deed and his signatures figured on the Ex. P-2, therefore, the pronote and receipt was proved, in view of the statement of Bindra Ban deed writer who was examined as DW-4 and it was held that he was disinterested witness but knowing the defendant Malkiat Singh for last 8-10 years. The trial Court also went on to hold that the plaintiff did not examine the attesting witness of the receipt having been won over by the defendant but the onus of disproving the consideration was on the defendant, therefore, the pronote and receipt were held to be for consideration and the suit for recovery was decreed since the defendant failed to produce any evidence that the plaintiff dealt in the business of money lending. 5. That the appeal filed by the defendant was allowed by the Lower Appellate Court on the ground that the attesting witnesses of the receipt Ex. P-2, Basakhi Mal and Randhir Singh had not been produced and that the amount had been alleged to be paid through Beer Singh but in the statement the plaintiff had said the loan had been advanced by her. That regarding the evidence of the expert it was held that the opinion of Sh. Dewan K.S. Puri who was well known expert was more weighty and the Court was inclined to accept the report as correct. Accordingly, the appeal was accepted and the findings regarding the execution of the pronote and receipt was set aside and the suit was dismissed. That in the said circumstances, the plaintiff- appellant is in appeal which was admitted on 24.4.1990. 6. Accordingly, the appeal was accepted and the findings regarding the execution of the pronote and receipt was set aside and the suit was dismissed. That in the said circumstances, the plaintiff- appellant is in appeal which was admitted on 24.4.1990. 6. Learned counsel for the appellant has contended that the Appellate Court was wrong in upsetting the well reasoned findings of the trial Court in allowing the appeal. None has put in appearance on behalf of respondent though Memo of Appearance of counsel has been submitted on behalf of the respondent. 7. That the counsel for the appellant has submitted that the Lower Appellate Court was in patent error by excluding the evidence of Beer Singh and the scribe Bindra Ban Shori and the execution of the pronote being an negotiable instrument which was presumed to have been executed for consideration. It is further submitted that the acceptance of report of Dewan K.S. Puri was on the basis of conjectures and should not have been taken into account. In my opinion submissions made by the appellants are without any substance as the plaintiff had to stand on his own legs to prove the execution of the pronote and the receipt. The witness to the said receipt had been given up and therefore the argument that it was for the defendant to prove and to examine the attesting witness and there was a presumption that was it entered for consideration is incorrect. The plaintiff having filed the suit and alleged that there was a pronote and receipt and the onus being on the plaintiff, it was for the plaintiff to make good his case. 8. Admittedly, the receipt was attested by Randhir Singh and Basakhi Mal who were independent witnesses but both of them have not been examined to prove that the sum of Rs. 9600/- was advanced by way of loan. Infact it has been noticed that both of them had been won over by the defendant by the trial Court. The onus of proving the execution of the pronote and receipt was on the plaintiff, therefore, the Lower Appellate Court was justified in holding that the said issue was never proved as by merely producing her own self and her husband Beer Singh, the said onus could not be validly discharged. The onus of proving the execution of the pronote and receipt was on the plaintiff, therefore, the Lower Appellate Court was justified in holding that the said issue was never proved as by merely producing her own self and her husband Beer Singh, the said onus could not be validly discharged. Bindra Ban Shori – PW-4 whom the trial Court has relied upon and who has alleged to have scribed the pronote and receipt and held to be an independent witness by the trial Court was also cross-examined and he alleged that he had entered the said pronote and receipt in his Register at Serial No. 554 but the said register was never produced in the Court which would be clear from the examination-in-chief and cross examination. It is also come on record that Bindra Ban knew Beer Singh husband of the plaintiff for the last 15 years though he has also deposed that he also knew Malkiat Singh - the defendant. The scribe in cross-examination also could not recollect if Jasmail Kaur, the plaintiff was the person on the day when Ex. P-1 and Ex. P-2 were scribed and tried to justify that since Beer Singh was present, therefore it was not necessary for her to be present. Thus, from the cross-examination it would be clear that the petition writer of the pronote was not an independent witness. Another interesting factor to be noted is that the pronote and the receipt are in printed format and the columns have been filled out in black pen whereas it is the categorical case of the plaintiff that the pronote and receipt was scribed by Bindra Ban. The signatures of Malkiat Singh on the said pronote and receipt have also been compared by this Court on the sale deed (Ex. P-3) registered on 16.6.1983 and from the comparison of the same, it would be clear from the naked eye that there is difference on the signatures on the pronote and receipt and the admitted signatures of Malkiat Singh on the sale deed Ex. P-3 which was scribed by Bindra Ban Shori at the instance of Malkiat Singh. 9. The appellant also relied upon the judgment in Ravichandran vs. State By Dy. P-3 which was scribed by Bindra Ban Shori at the instance of Malkiat Singh. 9. The appellant also relied upon the judgment in Ravichandran vs. State By Dy. Superintendent of Police, Madras, [2010(3) Law Herald (SC) 1581] : 2010(2) Civil Court Cases 554 (SC) and Jamail Singh vs. Smt. Naranjan Kaur, [2011(1) Law Herald (P&H) 627] : 2011(2) PLR, 408 to contend that the opinion of the handwriting expert is not to be acted upon unless substantially corroborated and that it is not uncommon for an handwriting expert to give opinion in favour of the party which has engaged them, since the comparison of handwriting is not perfect science. There is no quarrel with this proposition of law. The lower Appellate Court has thus rightly came to the conclusion that since both the attesting witnesses never came forward to prove the execution of the pronote or passing of the consideration, the trial Court could not have held that pronote and receipt were executed by the defendant and therefore has rightly set aside the findings of the trial Court. 10. Though there are conflicting opinions of the experts regarding the said signatures but the Lower Appellate Court has rightly given more weight to the opinion of DW-3 Sh. Dewan K.S. Puri dated 25.5.1986 Ex. DW 2/A. This bias towards Sh. Dewan K.S. Puri has been correctly given since he was renowned Document Expert and had received trainings at the Govt. Handwriting Bureau Calcutta, Govt. Laboratory, Phillaur, Govt. Finger Bureau, Madras, Govt. Police Forensic Lab Cuttack and Govt. Criminal Intelligence Bureau, Trivendrum and had experience of 50 years as a visiting professor of teaching handwriting and finger expert in the Govt. Central Police, College of Taiwan which will be clear from his examination. That though the science of handwriting comparison is not a perfect science but when there is a dispute between the two experts the Court can always examine admitted signatures and in the present case this exercise has been carried out and from the perusal of the pronote and receipt, the sale deed and the signatures on the Vakalatnama of the defendant it would be clear from the naked eyes that the signatures on the pronote and receipt have not been authored by the same person. Thus, in the absence of any independent evidence, the trial Court was not justified in decreeing the suit. Thus, in the absence of any independent evidence, the trial Court was not justified in decreeing the suit. In the absence of any independent evidence and the evidence of Beer Singh the husband who is the interested person and as discussed above, the evidence of Bindra Ban, deed writer were not reliable for decreeing the suit and, therefore, the Appellate Court has rightly reversed the findings recorded by learned trial court. 11. Accordingly, the present appeal is dismissed, since no substantial question of law arises for determination in the facts and circumstances of the present case. --------------