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2011 DIGILAW 2469 (MAD)

K. R. Chinnasamy v. .

2011-04-29

K.MOHAN RAM

body2011
Judgment :- 1. The Appellant in A.S. No. 24 of 2007 on the file of the Additional District Judge/Fast Track Court No. IV Bhavani is the Petitioner in the above C.R.Ps. 2. The Respondent herein filed O.S. No. 499 of 2004 on the file of the Second Additional District Munsif, Bhavani for recovery of a sum of Rs. 82,879/- on the basis of a Promissory Note, dated 30.1.2000 said to have been executed by the Petitioner in favour of the Respondent. 3. The Petitioner contested the Suit by contending that he had not borrowed any amount from the Respondent/Plaintiff and he had not executed any Promissory Note as alleged in the Plaint. The Promissory Note alleged to have been executed by the Petitioner is a forged one. 4. On a consideration of the evidence available on record, the Trial Court has decreed the Suit. 5. Being aggrieved by that the Petitioner on record, the Trial Court No. 24 of 2007. 6. Pending the Appeal, the Petitioner has filed I.A. No.50 of 2006, under the Civil Rules of Practice to send for the Book No.1 Volume 1433 containing the particulars of Doc. No.500/98 relating to the Gift Settlement Deed Doc.500/1998 registered in the year 1998 from the file of the Sub Registry Bavani. 7. The Petitioner also filed I.A. No.37 of 2007 under Section 45 of the Indian Evidence Act, to direct the Petition mentioned expert to compare the Petitioner’s signature contained in the Suit Pronote marked as Ex.A1 in O.S. No.499 of 2004 on the file of the Court with his admitted signature to be found in Doc. No. 500 of 1998, the Gift Settlement Deed, dated 9.6.1998 that would be sent for from the file of the Sub-Registrar, Bhavani, to the file of the Court to give his opinion. 8. The Petitioner has also filed I.A No.92 of 2007 to amend the expert opinion Petition in I.A. No.37 of 2007 by including the word ‘left Hand Thumb Impression’ before the word ‘signature’ wherever it occurs in the body of the Petition. 9. The Respondent herein has contested in Applications inter alia contending that the Petitioner has got an opportunity to file an Application to get the expert opinion before the Trial Court but he has not availed of that opportunity, but has filed the present Petitions only with an intention to drag on the proceedings. 10. 9. The Respondent herein has contested in Applications inter alia contending that the Petitioner has got an opportunity to file an Application to get the expert opinion before the Trial Court but he has not availed of that opportunity, but has filed the present Petitions only with an intention to drag on the proceedings. 10. The Vakalat, Written Statement and Suit served summons contained the signature of the Petitioner and therefore, the disputed signature can be compared with the admitted signature contained in the aforesaid documents by the Court itself. Having failed to take steps before the Trial Court, it is not open to the Petitioner to file such petitions at the Appellate stage. 11. On the basis of the evidence adduced by the Trial court, the Suit has been decreed. Before the Trial Court, the Petitioner had not filed any Petition for the similar relief and therefore, it is clear that the Petition has been filed only to drag on the proceedings and hence, the Court below dismissed the I.A. No. 37 of 2007. 12. The Court below has further observed that as to why the Petitioner had not filed such a Petition before the Trial Court has not been explained and the reasons stated in the Petitions are not just and reasonable and in view of the dismissal of the I.A. No.37 of 2007, other Applications have consequently been dismissed. 13. Being aggrieved by that the Defendant in the Suit, who is the Appellant in the Appeal, has filed the above C.R.Ps 14. Heard both. 15. The learned Counsel for the Petitioner submitted when the Petitioner/Defendant in the Suit had specifically denied his signature in the suit Promissory Note and has taken a definite stand that the suit Promissory Note is forged, the burden is on the Plaintiff to prove that the suit Promissory Note contains the signature of the Defendant and unless such burden is discharged, it is not possible to draw the presumption arising under Section 118 of the Negotiable Instruments Act. Since the Plaintiff/Respondent herein had not filed any Application for sending the suit Promissory Note to obtain an opinion of the handwriting expert, the Petitioner has filed such Petition before the Appellant court. Since the Plaintiff/Respondent herein had not filed any Application for sending the suit Promissory Note to obtain an opinion of the handwriting expert, the Petitioner has filed such Petition before the Appellant court. According to the learned Counsel, there is no bar for filing such a Petition before the Appellant court and therefore, the reasons assigned by the Appellate Court for dismissing the Petitions are unsustainable. 16. The learned counsel submitted that when the Trial Court has observed that the Defendant has not proved his contention, that the suit Promissory Note is a forged one by sending the Promissory Note for the examination of the handwriting expert, it has become necessary for the Petitioner to send the document to get the opinion of the handwriting expert. 17.The learned Counsel further submitted that since there is no document available, which contains the admitted signature of the Petitioner, the Petitioner has filed a separate Petition to send for the document from the Sub-Register Office, Bavani. 18. In support of the said contention the learned Counsel based reliance on the decision reported in Thiruvengada Pillai v. Navaneethammal and another, AIR 2008 SC 1541 . In the said decision, the Apex Court in paragraph 17 has laid down as follows; “The First Appellate Court proceeded on the basis that it is for the party who asserts something to prove that thing and as the Defendant alleged that the agreement was forged, it was for them to prove it. But the First Appellate court lost sight of the fact that the party who propounds the documents will have to prove it. In this case Plaintiff came to Court alleging that the First Defendant had executed an Agreement of Sale in favour. The First Defendant having denied it, the burden was on the Plaintiff to prove that First Defendant had executed the agreement and not on the First Defendant to prove the negative. The issue also placed the burden on the Plaintiff to prove the document to be true. No doubt, the Plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the Trial Court and High Court referred to earlier, when taken together, rightly create a doubt about the Genuineness of the agreement and dislodge the effect of the evidence of P.W.I to 3. No doubt, the Plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the Trial Court and High Court referred to earlier, when taken together, rightly create a doubt about the Genuineness of the agreement and dislodge the effect of the evidence of P.W.I to 3. We are therefore of the view that the decision of the High Court reversing the decision of the First Appellate Court does not call for interference.” 19. In N. Chinnasamy v. P.S. Swaminathan 2006 (4) CTC 850 , Mr. Justice S. Rajeswaran after referring to various decisions of this Court and the Apex Court and other High Courts has laid down several principles and guidelines to be followed when the Defendant denies his signature in the written statement. The following are some of the guidelines laid down therein. “10 Merely because of the reasons that the Trial Court has by itself compared the admitted signature and the disputed signature invoking Section 73 of the Indian Evidence Act there is no bar on ban for the First Appellants Court for sending the documents to get the expert opinion. 11. Expert opinions could give much more clarity for arriving at a decision upon the truth and genuineness of a disputed document. 12. When the Defendant denied the signature in a particular document which is very much relied on by the Plaintiff, it is for the Plaintiff to take steps for examination of the disputed signature by sending the document to a handwriting expert.” 20. In Palaniammal W/O Nallusami and others v. Palaniswami and others 2003 (3) MLJ 408 , THE learned Single Judge of this Court has laid down as follows: “Even at the Appellate stage a Commissioner can be appointed for the purpose of taking the documents for opinion of a handwriting expert notwithstanding the delay on the part of the party seeking such opinion.” 21. The same Judge has followed the decision reported in Palaniswami W/o Nallusami and others v. Palaniswami and others, 2003 (3) MLJ 408 , in the decision reported in K.V. Easwaran and another v. T.S.T Anand, 2005 (1) T.N.L.R. 516 (Mad). 22. The same Judge has followed the decision reported in Palaniswami W/o Nallusami and others v. Palaniswami and others, 2003 (3) MLJ 408 , in the decision reported in K.V. Easwaran and another v. T.S.T Anand, 2005 (1) T.N.L.R. 516 (Mad). 22. Countering the said submissions, the learned Counsel for the Respondent submitted that the suit was decreed on 9.06.2004 and the Appeal was filed on 1.9.2005 and the Appeal was posted for arguments on 24.4.2006 and only on that day, the Petitioner has filed the Petitions and absolutely no reason has been stated by the Petitioner for not filing such Petitions before the Trial Court and the delay in filing such Petitions has also not been properly explained and therefore the learned Counsel submitted that it is not open to the Petitioner to file such Petitions at the Appellate stage. 23. The learned Counsel further submitted that before the Trail Court the Petitioner has denied even the signature contained in the Vakalat and Written Statement which shows that the Petitioner will go to any extent to utter falsehood and therefore, the Petitioner is not entitled to any relief sought for by him. 24. The learned Counsel submitted that the Petitions have also been filed belatedly and the delay has not been properly explained and therefore, the Court below rightly rejected those Petitions and there is absolutely no reasons to interfere with the same. 25. The learned Counsel further contended that the burden is on the Defendant to prove that the suit Promissory Note is a forged one and it does not contain the signature of the Petitioner. 26. I have considered the aforesaid submissions and perused the materials available on record. 27. In the decision reported Thiruvengada Pillai v. Navaneethammal and another, AIR 2008 SC 1541 , the Apex Court has clearly laid down that when the Defendant denies his signature in a document, which is sought to be relied upon by the Plaintiff in the Suit, the burden is on the Plaintiff to prove that the Defendant and executed the said document and the burden is not on the Defendant to prove the negative. 28. 28. In the decision reported in N. Chinnasamy v. P.S. Swaminathan 2006(4) CTC 850 , the learned Single Judge has also laid down that when the Defendant denies the signature in a particular document which is very much relied on by the plaintiff it is for the Plaintiff to take steps for the examination of the disputed signature by sending the document to an handwriting expert. 29. In the light of the aforesaid legal principles laid down by the Apex Court as well as this Court, the contention of the learned Counsel for the Respondent that the burden lies on the Defendant to prove that the suit Promissory Note does not contain his signature cannot be countenanced. 30. In the case on hand, the Defendant ahs categorically pleaded in the Written Statement itself that he had not borrowed any amount from the Plaintiff and he had not executed any Promissory Note and the suit Promissory Note is a forged one. In such circumstances, the burden was on the Plaintiff to take steps for the examination of the disputed signature by sending the document to get the handwriting expert’s opinion. Admittedly, he had not taken any steps. As per the decision reported in N. Chinnasamy v. P.S. Swaminathan, 2006 (4) CTC 850 , the Appellate Court could seek expert’s opinion even if Trial Court had compared the signature and arrived at some conclusion and therefore, the reasoning of the Court below that as the Petitioner had failed to file similar Petitioner before the Trial court, it is not open to him to file the same with delay cannot be sustained. 31. For the said reasons, the contention of the learned Counsel for the Respondent cannot be countenanced. 32. The decisions reported in Palaniammal W/O Nallusami and others v. Palaniswamy and others 2003 (3) MLJ 408 , and K.V. Easwaran and another v. T.S.T. Anand 2005 (1) T.N.L.R. 516 (Mad) have clearly laid down that even at the Appellate stage the documents can be sent for the opinion of the handwriting expert. 33. In the light of the aforesaid decisions the contention of the learned Counsel for the Respondent that since the Petitioner had not explained the delay in filing the Petition cannot be sustained. 34. 33. In the light of the aforesaid decisions the contention of the learned Counsel for the Respondent that since the Petitioner had not explained the delay in filing the Petition cannot be sustained. 34. It has to be further pointed out that the contention of the learned Counsel for the Respondent that since the Trial Court has considered the entire evidence on record and decreed the Suit on merits is concerned, it has to be pointed out that when the judgment of the lower Court is under challenge before the Appellate Court, the correctness of the judgment can be canvassed before the Appellate Court after obtaining the opinion of the handwriting expert. 35. If the opinion of the handwriting expert is obtained, it will help the Court to compare the disputed signature with the admitted signature and justice could be rendered and it will not in any way prejudice the Respondent. Therefore, this Court is unable to sustain the reasons assigned by the court below for rejecting the Petitions. 36. For the aforesaid reasons the reasons assigned by the Court below in the aforesaid applications are set aside and the C.R.Ps are allowed but without costs. 37. Further, in the light of certain guidelines given in the decision reported in Muniraj v. Velu 2009 (2) MWN (Cr.) DCC 88, the Court below is hereby directed to send for the document mentioned in I.A. No.50 of 2006 and after the said document is received in Court, the lower Court shall appoint an Advocate Commissioner for the following purpose. a. To carry the relevant documents in connection with this care personally in a sealed cover b. and produce the same before the Forensic Expert: c. Leave it in his custody under his acknowledgement for as many day as the Forensic Expert may require. d. Collect the record from the forensic Expert on the day as may be fixed by him and e. bring it back and lodge it with the Court. 38. The lower Court shall direct the Forensic Expert to complete the examination of the signature within ten days from the date of depositing the same by the Advocate commissioner. With the above said directions, the C.R.Ps are allowed No costs connected M.P. is closed.