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2012 DIGILAW 240 (MAD)

M. Periyasamy v. R. Jayaraman

2012-01-12

M.VENUGOPAL

body2012
Judgment :- 1. The Appellant/Plaintiff has filed the present Second Appeal as against the Judgment and Decree dated 03.03.1999 in A.S.No.268 of 1998 passed by the Learned District Judge, Nagapattinam, in reversing the Judgment and Decree dated 16.07.1998 in O.S.No.217 of 1997 passed by the Learned District Munsif, Thiruvarur. 2. The First Appellate Court viz., the Learned District Judge, Nagapattinam, while passing the Judgment in A.S.No.268 of 1998 on 03.03.1999 (in the Appeal filed by the Appellant/Defendant), has among other things observed that in Ex.A.1 Promissory Note, dated 21.07.1994, there has been a material alteration and based on the material alteration, the suit filed by the Plaintiff is not maintainable and also that to recover the loan of the year 1982, a suit has been filed in the year 1997 and the same will be affected and as such, an alteration has been done in Ex.A.1 Promissory Note, dated 21.07.1994 and since Ex.A.1 Promissory Note, dated 21.07.1994 has been found to be a materially altered document, the Plaintiff is not entitled to obtain the relief as prayed for by him and resultantly, allowed the Appeal, thereby, setting aside the Judgment and Decree of the trial Court. Consequently, the First Appellate Court has dismissed the suit with costs. 3. Before the trial Court, in the main suit, 1 to 5 Issues have been framed for adjudication. On the side of the Appellant/Plaintiff, witness PW1 has been examined and Ex.A.1 to Ex.A.4 have been marked. On the side of the Respondent/Defendant, witness DW1 has been examined and Ex.B.1 has been marked. Further, Ex.C.1 viz., the Appellant/Plaintiffs sample handwriting 2 and 4 has been marked. Likewise, the Respondent/Defendants sample signature containing the recitals has been marked as Ex.C.2. 4. The trial Court on anappreciation of oral and documentary evidence available on record, has come to a clear conclusion that there is no material alteration in the suit Pronote and further, the Respondent-Defendant has paid the amount towards the Pronote and resultantly, directed the Respondent/Defendant to pay a sum of Rs.14,000/- to the Appellant/Plaintiff and for the Principal sum of Rs.10,000/-, the Respondent/Defendant has been directed to pay the sum @18% interest per annum from the date of filing of the suit till date of Judgment and thereafter from the date of Judgment till date of realisation at 6% interest per annum, together with costs. 5. 5. In view of the reversal of the Judgment and Decree dated 03.03.1999 in A.S.No.268 of 1998 (filed by the Respondent/ Defendant) passed by the Learned District Judge, Nagapattinam, the Appellant/Plaintiff as an aggrieved person, has projected this Second Appeal before this Court. 6. At the time of admission, this Court has formulated the following substantial question of law for determination. “1) Whether the Lower Appellate Court was justified in holding that there is material alteration in the face of the evidence and the fact that the promissory note was written by the Defendant in his own hand?” 7. The Contentions, Discussions and Findings on Substantial Question of Law No.1: According to the Learned Counsel for the Appellant/Plaintiff, the First Appellate Court failed to appreciate when the Appellant/Plaintiff was about to file a suit against the Respondent/Defendant for recovery of the amount due under the Pronote, the Respondent/Defendant issued a Lawyers notice to the Appellant/Plaintiff as if he borrowed a sum of Rs.12,000/- from the Appellant/Plaintiff and that the entire money was discharged by him. 8. It is the further submission of the Learned Counsel for the Appellant/Plaintiff that the First Appellate Court had omitted to look into the facts that the Respondent/Defendant wrote the words in the printed Pronote form in his own handwriting and therefore, there cannot be any material alteration in the Pronote. 9. The Learned Counsel for the Appellant/Plaintiff urges before this Court that the First Appellate Court failed to take into account that the trial Court only after verifying the letter 4 written by the Respondent/Defendant in some other document came to the conclusion that the said letter 4 was only written by the Respondent/Defendant himself. 10. The stand of the Appellant/Plaintiff is that the First Appellate Court failed to see that the trial Court had spelt out several reasons for coming to the conclusion that there was no material alteration in Ex.A.1 Promissory Note. 11. The Learned Counsel for the Appellant/Plaintiff projects a plea that the First Appellate Court failed to take into account that the Respondent/Defendant in his Lawyers notice clearly mentioned that he has executed a Pronote for Rs.12,000/- and the Pronote was written in paper. But in fact the Pronote is only for Rs.10,000/- and the same was written only in the printed form which will clearly go to prove that the defence of the Respondent/Defendant is an untenable one. 12. But in fact the Pronote is only for Rs.10,000/- and the same was written only in the printed form which will clearly go to prove that the defence of the Respondent/Defendant is an untenable one. 12. Yet another submission made by the Learned Counsel for the Appellant/Plaintiff is that the First Appellate Court has come to an erroneous finding that there is a material alteration in the Pronote without giving any reasons. Further, the First Appellate Court has given the wrong finding that in the Ex.A.1 Pronote, the letter 2 has been altered as 4. When especially the trial Court has come to the conclusion that it has been altered after specifying numerous reasons. 13. Lastly, it is the contention of the Learned Counsel for the Appellant/Plaintiff that the First Appellate court has gone wrong in arriving at a finding that the letter No. 4 in the Pronote has not been written by the Respondent/Defendant. 14. Per contra, the Learned Counsel for the Respondent/ Defendant submits that the First Appellate Court in his Judgment in Appeal has come to a categorical conclusion that on perusal of the Pronote in the beginning of the words in Tamil Velangudi Village, 1.48, Railway Street, the letter 4 and the letter 4 in 1994 on top of the Pronote, clearly makes out that an alteration has been made and the same can be felt. Also that when the Respondent/Defendant in the written statement has not mentioned about the details on what date he has received the said loan and he has only mentioned that in the stamp affixed dummy paper, he has not signed etc., will clearly point out that 2 has been altered as 4 and also that based on the said material alteration, the suit filed by the Appellant/Plaintiff is not maintainable etc. In fact, the First Appellate Court has taken into account the entire attendant facts and circumstances of the case in an integral fashion and has resultantly allowed the Appeal with costs which need not be disturbed by this Court at this distance point of time. 15. It cannot be gainsaid that the Appellant/Plaintiff in the Plain in Para 3 has categorically averred that the Respondent/Defendant has borrowed a sum of Rs.10,000/- on 21.07.1994 from him at his residence under the Pronote dated 21.07.1994 by promising to repay the same with interest @ 18% per annum. 16. 15. It cannot be gainsaid that the Appellant/Plaintiff in the Plain in Para 3 has categorically averred that the Respondent/Defendant has borrowed a sum of Rs.10,000/- on 21.07.1994 from him at his residence under the Pronote dated 21.07.1994 by promising to repay the same with interest @ 18% per annum. 16. The case of the Appellant/Plaintiff is that the Respondent/ Defendant has not repaid the said loan inspite of numerous demands made by him (Plaintiff). Further, the contents of the notices given by the Respondent/Defendant are all false and they have been invented only to cheat the Appellant/Plaintiff. Therefore, the Appellant/Plaintiff has filed a suit before the trial Court for recovery of a sum of Rs.10,000/- being the amount due on Pronote together with interest @18% per annum from 21.07.1994 to 21.07.1997 amounting to Rs.5,400/- and has only claimed a sum of Rs.15,400/- in the Plaint, by the Respondent/Defendant. 17. The Respondent/Defendant in his written statement has taken a plea that he has not executed the Pronote on 21.07.1994 for Rs.10,000/-to and in favour of the Appellant/Plaintiff and on perusal of the said Pronote, it is quite evidence that in letter 94 in letter No.4, an alteration/correction has been made and that the Respondent/ defendant has taken a loan from the Appellant/Plaintiff during the year 1992 and has repaid the Principal and interest on 15.03.1997. As a matter of fact, in the suit Pronote, the letter 92 has been corrected as 94 viz., the letter No.2 has been corrected as 4 and therefore, the suit Pronote suffers from the plea of material alteration as per Section 87 of the Negotiable Instruments Act. 18. The Respondent/Defendant, in short, has pleaded in the written statement that the Appellant/Plaintiff is doing the business of lending money to numerous persons and as per law, for conducting money lending business he has not obtained a license and that the suit filed by the Appellant/Plaintiff is not maintainable. 19. 18. The Respondent/Defendant, in short, has pleaded in the written statement that the Appellant/Plaintiff is doing the business of lending money to numerous persons and as per law, for conducting money lending business he has not obtained a license and that the suit filed by the Appellant/Plaintiff is not maintainable. 19. The Respondent/Defendant in Para 5 of the Written Statement has come out with a plea that the factum of payment made by him on 15.03.1997 to the Appellant/Plaintiff in respect of the Pronote of the year 1992, is known to one Prabhakaran, who is serving in the Telephone Department and the Appellant/Plaintiff has informed him that he will written the Pronote, at a later point of time since he has kept the same in his house and moreover, the Appellant/Plaintiff has not issued any receipts for the amount received by him and that he has cheated him. 20. At this juncture, this Court pertinently points out that when the Appellant/Plaintiff has come out with a definite case that the Respondent/Defendant has borrowed a sum of Rs.10,000/- on 21.07.1994 from him at his residence under Ex.A.1 Promissory Note, dated 21.07.1994, agreeing to repay the said amount with interest @18% per annum either to him or to his order, then, it is for him to establish his case to the hilt. The general presumption under Section 118 of the Negotiable Instruments Act, when the execution of Pronote is admitted by a party to and in favour of the another person, then, the said Pronote has been executed by the concerned person for a valuable consideration mentioned in the said document. However, if a party pleads partial consideration or he has only admitted his signature in the Pronote only, then, the burden is caused on the Plaintiff to establish his case that it is the Defendant who has executed the Pronote in his favour after receiving the amount specified in the document. However, the presumption to be drawn Section 118 of the Negotiable Instruments Act, is undoubtedly a rebuttable presumption. It is open to the Respondent/Defendant to substantiate his case to the subjective satisfaction of a Court of Law either based on surrounding facts and circumstances of the case or to lead an appropriate oral and documentary evidence to support his version projected in defence. 21. It is open to the Respondent/Defendant to substantiate his case to the subjective satisfaction of a Court of Law either based on surrounding facts and circumstances of the case or to lead an appropriate oral and documentary evidence to support his version projected in defence. 21. In the instant case on hand, the trial Court as well as the Appellate Court has perused Ex.A.1 Promissory Note. The trial Court after perusing the Ex.A.1 Promissory Note, has come to a clear conclusion in Para 8 of his Judgment in the suit that in Ex.A.1 Promissory Note, the number next to 199 has been written in the same pen and therefore, he has come to the conclusion that letter 2 next to No.199 has not been changed or altered as 4. To put it precisely, the trial Court has held that Ex.A.1 Promissory Note, it is free from material alteration and further that, it has been established that the Respondent/Defendant has executed the Ex.A.1 Promissory Note to and in favour of the Appellant/Plaintiff and accordingly granted a Decree in favour of the Appellant/Plaintiff. 22. The First Appellate Court in its Appeal Judgment in Para 8, has clearly opined that the trial Court action in directing the Respondent/Defendant to write Ex.C.1 and also to write No. 2 and based on such writing the conclusion arrived at by it to the effect that 2 has been changed as 4 is a wrong one and further observed that the letter 4, when compared with letter No. 4 in 1994 can clearly be felt that there has been an alteration and consequently held that based on the alteration made in Ex.A.1 Pronote, the suit filed by the Appellant/Plaintiff is not maintainable. 23. The Negotiable Instruments Act, 1881, permits 3 kinds of alteration. (i)As per Section 20 of the Act, a person to whom a signed and stamped instrument has been issued wholly or partly in blank has the Authority to complete it and it will not be avoided even if he completes it in excess of authority vested in him. (ii) Section 49 of the Act enables the Holder of the instrument endorsed in blank to convert it into endorsement in full. (iii) As per Section 125 of the Act, the Holder of an uncrossed cheque may cross it, or may convert generally into special crossing or make it not negotiable. (ii) Section 49 of the Act enables the Holder of the instrument endorsed in blank to convert it into endorsement in full. (iii) As per Section 125 of the Act, the Holder of an uncrossed cheque may cross it, or may convert generally into special crossing or make it not negotiable. Further, the banker to whom a cheque has been crossed specially may cross it to another banker or agent. 24. The alteration of date of the instrument or of payment is held to be material as per decision SubbaReddy V. Neelampa Reddy, AIR 1966 AP 267 . Also, the alteration of the amount of instrument is a material one as per decisionScholfield V. Earl of Londesborough (1896) AC 514. Further, the alteration in place of payment is also material. An alteration which is not material does not avoid the instrument, as opined by this Court. The burden of proof as to how the alterations have come about lies on the Plaintiff. In the absence of proof, it should be presumed that they have been made by him or his friend and he will not be permitted to sue on consideration. 25. A party cannot complain of an alteration to which he has assented. Further, the alterations which are made to carry out the common intention of parties cannot be complained of. 26. The Honble Supreme Court inKalianna Gounder V. Palani Gounder AIR 1970 SC 1942 , it is held that a material alteration is one which varies the rights and liabilities or legal position of parties as ascertained by the deed in its original state, or otherwise varies the legal right of the instrument as originally expressed, or which may otherwise prejudice the party bound by the deed originally executed. 27. The presumption as per Section 118(a) of the Negotiable Instruments Act is that the instrument is for consideration adequate or inadequate or that it is not a nudumpactum. The presumption as per Section 118 (a) of the Negotiable Instruments Act is a presumption of law which a Court of Law is certain to raise until the contra is proved. But the presumption as per Section 114 of the Evidence Act is only a presumption of fact. It is within the domain and discretion of a Court of Law to draw the presumption or not. 28. But the presumption as per Section 114 of the Evidence Act is only a presumption of fact. It is within the domain and discretion of a Court of Law to draw the presumption or not. 28. At this stage, this Court worth recalls the ingredients of Section 73 of the Indian evidence Act which runs as follows. “(73.) Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. Inserted by Act 5 of 1899, S.3. [This section applies also, with any necessary modifications, to finger-impressions.] 29. The first part of Section 73 of the Indian Evidence Act provides for comparison of signature, writing, finger impressions purporting to have been written or made by a person with others admitted or proved to the satisfaction of this Court to have been written or made by the person. The second part of Section 73 of the Indian Evidence Act empowers a Court of Law to direct any person present in Court to give his specimen writing or finger impression for the purpose of explaining the Court to compare it with others alleged to have been written or made by him. It may not be safe for a Court of Law to record a finding about a persons writing in a particular document merely on the basis of a comparison. However, the Court can itself compare the writings in order to appreciate properly the other evidence produced before it as per decision in S V. Vinaya Chandra, AIR 1967 SC at page 778. The other two parts of Section 73 of the Indian Evidence Act are complementary to each other, in the considered opinion of this Court. 30. However, the Court can itself compare the writings in order to appreciate properly the other evidence produced before it as per decision in S V. Vinaya Chandra, AIR 1967 SC at page 778. The other two parts of Section 73 of the Indian Evidence Act are complementary to each other, in the considered opinion of this Court. 30. From the above provision, it is candidly clear that a Court of law is quite competent to make a comparison of a certain signature with that of his proved signature/writing. Section 73 of the Indian Evidence Act does not expressly say by whom a comparison of signature may be made. Such comparison may be made by an Handwriting Expert [as per Section 45 of the Indian Evidence Act] or by one familiar with the handwriting of the person concerned [as per Section 47 of the Indian Evidence Act] or by Court. The power of a Court of Law to compare certain signatures as per Section 73 of the Indian Evidence Act ought to be sparingly used with utmost caution. But, it is to be pointed out that certainly, a Court of Law cannot take the role of an expert viz., Handwriting Expert. 31. In the instant case on hand, a specific plea has been taken on behalf of the Respondent/ Defendant that the suit Pronote suffers from material alteration and in fact, the Respondent/Defendant has not executed the Ex.A.1 Pronote dated 21.07.1994. The Appellant/Plaintiff has not made any endeavour to take necessary steps to examine the Ex.A.1 Pronote by an Handwriting Expert in order to find out and to enable the Court to come to the conclusion that letter 2 in the Pronote has been changed as 4 on the first line of the Pronote. The trial Court has perused the Ex.A.1 Pronote with a magnifying glass. Whether the letter No. 2 before 199 has been changed later as letter No. 4 to make it appears as 1994 being the year is a matter within the domain of an Handwriting Expert and the same requires rumination /determination to be arrived at by him. Without the aid of Handwriting Expert, the trial Court and the First Appellate Court have come to the independent and own conclusion as regards Ex.A.1 Pronote, pertaining to the plea of material alteration. 32. Without the aid of Handwriting Expert, the trial Court and the First Appellate Court have come to the independent and own conclusion as regards Ex.A.1 Pronote, pertaining to the plea of material alteration. 32. Be that as it may, in the instance case on hand, when the Appellant/Plaintiff has come out with a specific plea that at the time of execution of Ex.A.1 Pronote by the Respondent/Defendant, witness M.Rathinavelu has been present, the said person Rathinavelu has singed as witness in Ex.A.1 Pro Note, unfortunately, he has not been examined. In a case of this nature, where the year of the Pronote is now the centre of dispute whether the year is of 1992 or 1994 during which year the Pronote has allegedly come into existence, then, this Court opines that the proper course would have been to the Appellant/ Plaintiff to examine the witness Rathinavelu. If Rathinavelu has been examined he would have been the proper person, who would have deposed whether the Ex.A.1 Pronote is of the origin of the year 1992 or of the year 1994 and also as to the passing of consideration adequate or otherwise as the case may be. Even in respect of the payment of the amount mentioned in Ex.A.1 document being paid to the Respondent/Defendant under normal circumstances, would have been made mention of by a witness to Ex.A.1 Pronote provided he has witnessed the passing of the consideration mentioned in the Pronote. The Competent and fit person namely the witness Rathinavelu in Ex.A.1 Pronote has not been examined as witness before the trial Court. No doubt, the Respondent/Defendant whose signature is seen over the stamp affixed Pronote is the very same person who has written the suit Pronote. In short, the Respondent/Defendant is alleged to have executed the suit Pronote, according to the Appellant/ Plaintiff and further, he is the scribe of Ex.A.1 Pronote. The non examination of witness Rathinavelu to Ex.A.1 is a material omission, in the considered opinion of this Court. That apart, also the naked eyes comparison made by the trial Court as well as the First Appellate Court in respect of Ex.A.1 Pronote relating to letter 2 or 4, as per Section 73 of the Indian Evidence Act is also not a safe one. That apart, also the naked eyes comparison made by the trial Court as well as the First Appellate Court in respect of Ex.A.1 Pronote relating to letter 2 or 4, as per Section 73 of the Indian Evidence Act is also not a safe one. Per contra, it is an hazardous one in view of the fact that a plea of material alteration has been taken by the Respondent/Defendant as per Section 87 of the Negotiable Instruments Act. Based on the oral and documentary evidence available on record, this Court is not in a position to arrive at a definite conclusion in the case. Also, in view of the non examination of Rathinavelu and also Ex.A.1 Pronote has not been either sent for an Handwriting Expert opinion or the said Expert not being examined before the trial Court, this Court, with a view to provide opportunity to the parties, without expressing any opinion on the merits of the matter, is inclined to remand the entire subject matter of the case to the trial Court for fresh disposal in accordance with law. As such, this Court is not answering the Substantial Question of Law No.1 and leaving it open. In the result, the Second Appeal is allowed, the Judgment and Decree of the First Appellate Court dated 03.03.1999 in A.S.No.268 of 1998 as well as the trial Court dated 16.07.1998 in O.S.No.217 of 1997, are hereby set aside to prevent an aberration of justice and to promote a substantial cause of Justice. The entire subject matter of the issue is now remitted back to the trial Court for fresh consideration in accordance with law and in the manner known to law. Before the trial Court, the Appellant/Plaintiff is directed to examine the witness Rathinavelu to Ex.A.1 Promissory Note and also the Appellant/Plaintiff is also directed take necessary steps as per law to examine the Ex.A.1-Pronote by an Handwriting Expert, by means of filing necessary Interlocutory Application before the trial Court praying for the said Experts appointment and after obtaining his report, the trial Court is to pass orders on the said Interlocutory Application, praying for appointment of an Handwriting Expert, on merits, of course after providing sufficient opportunities to the other side. The remuneration for the Handwriting Expert shall be borne by the Appellant/Plaintiff. The remuneration for the Handwriting Expert shall be borne by the Appellant/Plaintiff. Further, the trial Court is directed to provide adequate opportunities to both parties to examine additional witnesses [including the examination of Handwriting Expert] and to mark additional documents, if they desire/so advised. Since the suit is of the year 1997, this Court directs the trial Court to dispose of the suit within a period of six months from the date of receipt of a copy of this Judgment and report compliance without fail. It is open to both parties to let in additional oral and documentary evidence and in this regard, the trial Court shall permit the parties to do so. Since this Court has allowed the Second Appeal, the Appellant/Plaintiff is entitled to get back Rs.3,130/-paid by him towards costs in the trial Court (as per direction of this Court dated 23.10.2003 made in C.M.P.No.8461 of 1999), by filing necessary payment out application as per Sections 162 and 163 of Civil Rules of Practices.