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2012 DIGILAW 565 (MAD)

D. Sellamuthu v. K. N. Venkatachalam

2012-02-03

M.VENUGOPAL

body2012
Judgment :- 1. The Appellant/Defendant has preferred this present Second Appeal as against the Judgment and Decree dated 21.01.1999 in A.S.No.60 of 1998 passed by the Learned Subordinate Judge, Gobichettipalayam, in reversing the Judgment and Decree dated 25.09.1998 in O.S.No.705 of 1995 passed by the Learned District Munsif, Gobichettipalayam. 2. The 1st Appellate Court, while delivering the Judgment in A.S.No.60 of 1998 on 21.01.1999 has, among other things mentioned that Ex.A.1 pro note dated 15.04.1994 has been proved to be a true document on the side of the Respondent/Plaintiff and accordingly, granted the decree in the main suit, allowing the Appeal, thereby, setting aside the Judgment and Decree of the trial Court with costs. 3. During the trial of the main suit, 1 to 3 issues have been framed for determination. On behalf of the Respondent/Plaintiff, witnesses P.W.1 and P.W.2 have been examined and Exs.A.1 to A.6 have been marked. On the side of the Appellant/Defendant, witnesses D.W.1 and D.W.2 have been marked and no documents have been marked. 4. The trial Court on an appreciation and scrutiny of the entire oral and documentary evidence available on record has come to a resultant conclusion that Ex.A.1 pro note has been a created one and it is not supported by consideration and consequently, dismissed the suit with costs. 5. At the time of Admission of the Second Appeal, this Court has formulated the following substantial question of Law: “'Whether the findings of the Appellate Court that the Plaintiff is entitled to recover the amount on the original cause of action are vitiated by perversity?” 6. The Contentions, Discussions and Findings on substantial question of law: The Learned Counsel for the Appellant/Defendant urges before this Court that the Appellant/Defendant has not received any notice from the Respondent/Plaintiff prior to the filing of the suit and further, the suit promissory note has not been properly stamped and that the suit voucher is not a document and is inadmissible in evidence. 7. 7. The main crux of the argument projected by the Learned Counsel for the Appellant/Defendant is that the 1st Appellate Court in its Judgment in A.S.No.60 of 1998 has made mention of about the Hand writing Expert's opinion/report, which has not been admittedly marked or produced before the Court as an exhibit and has gone to the extent of perusing the Hand writing Expert's report and has come to a definite conclusion that the purported signature of the Appellant/Defendant in Ex.A.1 pro note is only that of the Appellant/Defendant's signature. Also, the 1st Appellate Court has examined the signature of the Appellant/Defendant in the vakalat and that of his signature in his deposition as D.W.1 and has finally opined that all the signatures are made by the Appellant/Defendant. 8. Before the trial Court I.A.No.1971 of 1997 in O.S.No.705 of 1996 has been filed by the Appellant/Defendant (as per Section 45 of the Indian Evidence Act, 1872) and the trial Court has appointed the Hand writing Expert and the opinion of the Expert dated 11.05.1998 has been received by the trial Court on 13.05.1998. 9. It is to be noted although a promissory note is insufficiently stamped and inadmissible in evidence, an endorsement of payment on the promissory note, which is an acknowledgment of the debt can be admitted in evidence for the purpose of establishing the acknowledgment, in the considered opinion of this Court. If a document is unstamped or insufficiently stamped and unregistered, then it is the duty of the Court to impound the same and issue necessary direction in that regard. After collection of stamp duty and penalty, the document could be marked subject to the recording the objections without deciding finally whether it is marked for collateral purpose or for being relied upon as a substantive piece of direct evidence as per decision M.Periya Karuppan V. Machiappan in (2008) 4 LW 165 (Mad). 10. Moreover, an unstamped document can be admitted in evidence on payment of stamped duty and penalty and thereafter, Judgment and Decree could be passed as per decision Dalip Kumar Sarkar, Cal (Retd.) V. Prabodh Chandra Puri, Majgen (Retd.) in AIR 2007 NOC 2153. Stamp duty on pro note is to be paid as in case of Bill of Exchange. A document improperly stamped cannot be admitted in evidence as per decision R.Ravindran V. M.Rajamanickam in AIR 2006 Mad 203 . Stamp duty on pro note is to be paid as in case of Bill of Exchange. A document improperly stamped cannot be admitted in evidence as per decision R.Ravindran V. M.Rajamanickam in AIR 2006 Mad 203 . Where a document which is not duly stamped, has been received in evidence by the trial Court after payment of penalty and hearing both sides on merit of the case, petitioner having acquiesced of the knowledge cannot challenge the document by way of revision as per decision Ranganatha Giramani V. Visalatchi in (2007) 6 MLJ 1609 (Mad). 11. A perusal of the report of the Hand writing Expert shows that the Expert has clearly opined that the disputed signatures 'D1' and 'D2' are similar to the admitted and specimen signatures 'S1 to S7' and are made by the same person. Unfortunately, no endeavour has been made on behalf of both the sides to mark the said Hand writing Expert's opinion/report and also, to examine her before the Court. Even, the trial Court has not examined the Hand writing Expert, who has submitted her opinion/report, as a Court witness. 12. As per Section 73 of the Indian Evidence Act, a Court of Law is entitled to compare the signature. However, Section 73 of the Indian Evidence Act has first part and the second part. Both, the first part and the second part are complementary to each other. 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. No where in Section 73 of the Indian Evidence Act speaks of as to who can make the comparisons of the signature. To put it differently, the ingredients of Section 73 of the Indian Evidence Act are silent as to who can compare the disputed or controversial signature. No where in Section 73 of the Indian Evidence Act speaks of as to who can make the comparisons of the signature. To put it differently, the ingredients of Section 73 of the Indian Evidence Act are silent as to who can compare the disputed or controversial signature. But nothing prevents the Court of law in regard to the comparison of a signature found in a document with the aid of admitted signature seen in the documents. But a word of caution is to be stated that admittedly, the Court of law is not an expert. Furthermore, a Court is not supposed to take the role of an Expert. Therefore, the comparison of a signature viz., disputed signature with that of an admitted signature, is not a safe one. Per contra, the said comparison by a Court of law is an hazardous one in the considered opinion of this Court. 13. Be that as it may, in the instant case on Hand, the 1st Appellate Court has referred to the Expert opinion/report in paragraph-18 of its Judgment in Appeal and has looked into the contents of the Expert opinion/report. There can be no doubt that a Court of Law can arrive at an independent conclusion, dehors the opinion/report submitted by Expert in a given case as per decision in S V. Vinaya CHandra, AIR 1967 SC at page 778. 14. In the present case, the 1st Appellate Court has referred to the Expert opinion/report and it has also compared the signature of the Appellant/ Defendant in his vakalat and also in the Appellant/Defendant's deposition as D.W.1. Ordinarily, a Court of Law looks into a document when it is exhibited and produced as a document before it, in a particular proceedings. But in the instant case on Hand, the 1st Appellate Court, though it has got all the powers of a trial Court as Section 107 of the Civil Procedure Code, yet, this Court opines that in the absence of Expert opinion/report being marked/exhibited as a document before the trial Court or before it, it cannot look into the said Expert opinion/report either as a matter of routine or a matter of course. No wonder, procedural wrangles cannot be allowed to be shaked or shackled with, in the considered opinion of this Court. No wonder, procedural wrangles cannot be allowed to be shaked or shackled with, in the considered opinion of this Court. Since, the 1st Appellate Court has considered or taken into account the Hand writing Expert's opinion/report, without the same being marked before it or before the trial Court as a document, then this Court inevitably comes to an inescapable conclusion that the 1st Appellate Court is not correct in referring to the Hand writing expert's opinion/report and rests its judgment besides taking note of the facts and circumstances of the case and the oral and documentary evidence on record. This Court opines that the proper procedure to be adopted is that the Expert opinion/report dated 11.05.1998 received by the trial Court on 13.05.1998 has to be marked as an exhibit. Therefore, the examination of Hand writing Expert in this regard is very much essential to prove the report and to mark the same. An opportunity is to be provided to the Appellant/Defendant to cross examine the Expert witness when she is examined before the trial Court. Therefore, this Court opines that examination of the Hand writing Expert and marking of her opinion/report are complementary to each other. On this simple ground alone, this Court without traversing or dwelling deep into the merits of the case, to provide an opportunity to the Appellant/Defendant and also to the Respondent/Plaintiff to examine the Expert and also to mark the Expert opinion, this Court remands the matter back to the trial Court because of the simple fact if any opinion is expressed by this Court based on the available materials on record, then it will cause prejudice to the parties in one way or the other. 15. Accordingly, this Court sets aside the Judgment and Decree of the 1st Appellate Court viz., Learned Subordinate Judge, Gobichettipalayam in A.S.No.60 of 1998 dated 21.01.1999 and the Judgment and Decree of the Learned District Munsif, Gobichettipalayam in O.S.No.705 of 1995 dated 25.09.1998 for the reasons assigned in the Appeal and allows the Second Appeal, leaving the substantial question of law unanswered. In the result, the Second Appeal is allowed. No costs. 16. In the result, the Second Appeal is allowed. No costs. 16. The entire gamut of the matter is remanded back to the trial Court and the trial Court is directed to take O.S.No.705 of 1995 on its file and to deal with the mater afresh by providing adequate opportunities to the respective parties to let in further oral and documentary evidence and also to examine the Hand writing Expert and also to mark the expert opinion/report. The trial Court shall permit the Appellant/Defendant to cross examine the Expert. 17. Since the suit is of the year 1995, the trial Court is directed to dispose of the matter within a period of four months from the date of receipt of a copy of this Judgment. The parties are directed to lend a helping Hand in regard to the completion of the proceedings.