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2014 DIGILAW 1631 (PNJ)

Gurbachan Singh v. Parma Dass

2014-11-26

SURINDER GUPTA

body2014
JUDGMENT : Surinder Gupta, J. 1. Respondent Parma Dass filed a suit for recovery of Rs. 5,72,382 against the appellant on the basis of pronote and receipt dated 15.8.2001. The case of respondent-plaintiff, in brief, is that the appellant-defendant took a loan of Rs. 4,50,000 on 15.8.2001 and executed a pronote and receipt on that day as collateral security. The rate of interest was agreed @ 1.56% per month. A sum of Rs. 5,72,382 which included Rs. 4,50,000 as principal amount and Rs. 1,22,382 as interest, was outstanding against appellant-defendant at the time of filing of the suit which he failed to repay despite repeated requests, compelling the respondent to file the suit for recovery. 2. The appellant-defendant in the written statement denied the taking of loan of Rs. 4,50,000 from the plaintiff on interest @ 1.56% per month and execution of the pronote and receipt for the said amount in favour of respondent-plaintiff. The appellant-defendant pleaded that he used to sell his crop through a commission agency of one Omkar of village Dharonki, Tehsil Nabha. On settlement of his account with said Omkar, he obtained thumb impression of appellant-defendant on blank pronote and receipt about 8-9 years back. Thereafter, the appellant started selling his crop and agricultural produce through some other commission agent. Said Omkar became bankrupt, closed his business, sold his house and left Nabha. He had misappropriated the money of several farmers and other persons. He was best friend of respondent-plaintiff, who appeared to have obtained the signed blank pronote and receipt of appellant-defendant from said Omkar. The pronote and receipt, on the basis of which this suit was filed, were forged and fabricated documents having several cuttings, additions and alterations. Initially, the pronote was filled for Rs. 50,000, half of which comes to Rs. 25,000. Later on the respondent converted the amount of Rs. 50,000 into Rs. 4,50,000 by adding digit 4' and the amount of Rs. 25,000 into Rs. 2,25,000 by adding digit 2'. This alteration is very much clear in the pronote and receipt. Moreover, the loan amount has not been mentioned anywhere in words in the pronote and receipt which creates further doubt about the amount for which alleged pronote and receipt was initially prepared. In this manner, respondent-plaintiff played fraud with the appellant-defendant. He had kept said Omkar as witness of the alleged pronote and receipt. 3. Moreover, the loan amount has not been mentioned anywhere in words in the pronote and receipt which creates further doubt about the amount for which alleged pronote and receipt was initially prepared. In this manner, respondent-plaintiff played fraud with the appellant-defendant. He had kept said Omkar as witness of the alleged pronote and receipt. 3. Respondent-plaintiff denied the averments of appellant in the replication and reiterated his claim as put forth in the plaint. 4. The pleadings of the parties led to the framing of issues as fallows: In support of his case, respondent-plaintiff himself appeared as PW-1 and he examined Document and Finger Prints Expert Shri Navdeep Gupta as PW-2 and marginal witness Omkar as PW-3. 5. Appellant-defendant appeared himself as DW-1 and examined Baljinder Singh as DW-2, Chamkaur Singh as DW-3 and Dr. Inderjit Singh, Document-Expert as DW-4. 6. The Court of Additional Civil Judge (Senior Division), Nabha did not accept the plea as raised by the appellant-defendant and reached the conclusion that "plaintiff has been successful in proving that on 15.8.2001 defendant after raising loan of Rs. 4,50,000/- from plaintiff had executed pronote and receipt of even date in favour of plaintiff and as defendant has failed to make its payment, the plaintiff is entitled for recovery of this sum along with interest and that the rate 12% per annum as the claimed interest though agreed is quite exorbitant. The suit is quite maintainable. On the other hand, defendant has failed to prove that pronote and receipt is having that fatal material cuttings, additions and alterations or that pronote and receipt in question are forged and fabricated documents or are insufficiently stamped." 7. The first Appellate Court affirmed the findings of the lower Court and did not accept the contention of the appellant regarding interpolation in the documents i.e. pronote and receipt and gave no weight to this fact that the amount of loan has not been mentioned in the pronote and receipt in words. Not satisfied the appellant-defendant Gurbachan Singh has come with the present appeal. 8. The stress of the learned Counsel for the appellant during the course of arguments is on two facts. Firstly, the perusal of pronote Ex. P1 and receipt Ex. P2 clearly shows that in the pronote as well as in the receipt, the digit 4' has been added ahead of figure 50,000 to make it Rs. 8. The stress of the learned Counsel for the appellant during the course of arguments is on two facts. Firstly, the perusal of pronote Ex. P1 and receipt Ex. P2 clearly shows that in the pronote as well as in the receipt, the digit 4' has been added ahead of figure 50,000 to make it Rs. 4,50,000 and digit 2' has been added before figure 25,000 to make it Rs. 2,25,000 as half of the amount of Rs. 4,50,000. His second contention is that the amount was not mentioned in words deliberately despite there being a column to this effect. In support of his contention, he has relied upon the report of the Hand-writing and Finger Prints Expert Dr. Inderjit Singh. He has argued that the report of Shri Navdeep Gupta, Document-Expert has no relevance as the case of the appellant from the very beginning is that his thumb impressions on blank pronote and receipt were used to fabricate the pronote Ex. P1 and receipt Ex. P2. The respondent has deliberately avoided the report of his expert regarding the interpolation in the pronote Ex. P1 and receipt Ex. P2. The case of the appellant from the very beginning is that the figures of amount in the pronote and receipt have been tampered. There is no reason as to why the plaintiff-respondent did not ask his expert to examine this fact and give an opinion. While appearing as DW-2, Dr. Navdeep Gupta has categorically stated that he has not examined the body writing of the pronote and receipt as such, could not say if the digit 4' in Rs. 4,50,000 and digit 2' in Rs. 2,25,000 appearing in pronote Ex. P1 and receipt Ex. P2 have been added afterwards. The report of the Expert of appellant-defendant that there is interpolation as alleged by the appellant in the pronote and receipt is un-rebutted. 9. I have given a careful thought to the submission of learned Counsel for the appellant and have perused the file. 10. The substantial question of law which arises for determination in this appeal is as to whether the findings recorded by the Court below that pronote and receipt Ex. P1 and Ex. P2 have no interpolation are perverse and are based on misinterpretation of the evidence on record. 11. Both the Courts below have recorded finding that execution of pronote and receipt Exs. P1 and Ex. P2 have no interpolation are perverse and are based on misinterpretation of the evidence on record. 11. Both the Courts below have recorded finding that execution of pronote and receipt Exs. P1 and P2 is duly proved from the statement of Scribe and marginal witnesses. The lower Court discarded the report of Document Expert Dr. Inderjit Singh DW4 with observation that he has not examined the digit and figure in ultra violet light. The first Appellate Court has also ignored the report of DW4 with observation that there is tendency of experts to toe the version adopted by a party engaging him. It has found the variation in the digits, alleged to be interpolated, as not substantial. The question which arises for consideration in this second appeal is as to whether the concurrent findings of both the Courts below can be interfered. 12. In case Hero Vinoth (Minor) Vs. Seshammal, (2006) 5 SCC 545 , Hon'ble Supreme Court, while summarising the principles of Section 100 Civil Procedure Code, has observed as follows: "(i)............ (ii)............ (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to decision based on no evidence, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." It was also observed that where there is misconstruction of a document or wrong application of law in construing a document, it gives rise to a question of law. 13. In case Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board and Others, (2010) 13 SCC 216 , while dealing with scope of Section 103 Civil Procedure Code, Hon'ble Supreme Court has observed as follows: "23. 13. In case Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board and Others, (2010) 13 SCC 216 , while dealing with scope of Section 103 Civil Procedure Code, Hon'ble Supreme Court has observed as follows: "23. There is no prohibition on entertaining a second appeal even on a question of fact provided the Court is satisfied that the findings of fact recorded by the Courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower Courts State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 , Karnataka Board of Wakf v. Anjuman-EIsmail Madris-Un-Niswan, 1999 (3) RCR (Civil) 639 and Dinesh Kumar Vs. Yusuf Ali, (2010) 12 SCC 740 . 24. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and, thus, stands vitiated - Bahadur Singh and Others Vs. State of Punjab and Another, (2010) 3 RCR (Criminal) 252." No doubt, it is a judicial precedent that concurrent findings recorded by the two Courts below are usually not interfered in second appeal but it is not an absolute rule to be applied universally and invariably. If the findings of Courts below are either perverse or not based on the material on record, the same are subject matter to be looked into regular second appeal. 14. In this case, thumb impressions of appellant-defendant on the pronote and receipt Ex. P1 and Ex. If the findings of Courts below are either perverse or not based on the material on record, the same are subject matter to be looked into regular second appeal. 14. In this case, thumb impressions of appellant-defendant on the pronote and receipt Ex. P1 and Ex. P2 are not disputed. Respondent plaintiff while appearing as PW1 and marginal witness Omkar PW-3 have stated that the pronote and receipt were executed by the appellant after receipt of Rs. 450,000. The statement of appellant is of denial of the taking of any loan from respondent and execution of pronote and receipt to secure repayment of loan amount. Dr. Inderjit Singh, Handwriting and Finger Prints Expert, has examined the pronote and receipt with the help of magnifying lens, colour corrected magnifiers, dissecting microscope, liner counter, etc. and on examination, gave the opinion regarding the plea of appellant about the interpolation in figure 4,50,000 and 2,25,000 as follows:- "Opinion:- On the basis of the above observations, I am of the opinion that at mark D1, D2 the original figure was written as 50,000 which has been subsequently changed to 4,50,000 by adding the digit 4' in the front with different ballpoint pen than the one used to write the original figure 50,000. At mark D3, D4 there is addition of digit 2' in the front to change the half amount originally written as 25,000 to 2,25,000. At mark D3 there is an extra 0' which is cut in the end but is still visible." The above opinion of Expert did not prevail before both the Courts. The Court of learned Additional Civil Judge declined to accept the report of DW-4 Dr. Inderjit Singh, Document Expert with the observations given in para 23 of the judgment which reads as follows: "23. Finally, although DW4 being document expert has given report for alleged addition of digits "4" and "2" and cutting of digit "0" on half of principal amount. But in cross examination he has deposed that natural variations are bound to occur with repeated writing figures/digits by a person even if it has been written at one and same time. Finally, although DW4 being document expert has given report for alleged addition of digits "4" and "2" and cutting of digit "0" on half of principal amount. But in cross examination he has deposed that natural variations are bound to occur with repeated writing figures/digits by a person even if it has been written at one and same time. Finally, his conduct has been cleared for said dispute when he deposed that he has not examined that digits/figure in ultra violet light, whereas for facts and circumstances of present suit, that was only reasonable source to submit report by document expert DW-4 and his report having support of ultra violet light instead of taking age old methods. Further, in view of evidence of PW-1 and PW-3 and cross examination of witnesses of defendant as discussed above legality and validity of promissory note has been duly proved and in such circumstances it is not fatal of not putting that sum in words and not mentioning of full address of attesting witness as one of the attesting witnesses has been examined and another namely Karnail Dass is admittedly known to the parties in lis and has been not examined by defendant himself in support of his own pleas. But for not mentioning those formal words, it is not the fault of the parties, as the both plaintiff and defendant are illiterate persons who are used to put their thumb impressions and not even signatures. Further, the admission of defendant to his that thumb impressions, it is not fatal of absence post script thereon." The First Appellate Court also ignored the report of Document Expert Dr. Inderjit Singh DW-4 with the observations as follows: "13..................The defendant has also examined Dr. Inderjit Singh DW-4 document and handwriting expert who has given the opinion Ex. D. 1. As per his opinion, digits 4 and 2 have been added subsequently. It may be mentioned here that the science of identification of handwriting cannot be termed to be perfect science. There is a tendency of expert to toe the version adopted by a party engaging its service. Dr. Inderjit Singh DW-2 has observed that digit 4 is small in size than the digit 5 and the digit 2 has been written in congested or squeezed manner. It is significant to note that it is emerging in the cross-examination of Dr. There is a tendency of expert to toe the version adopted by a party engaging its service. Dr. Inderjit Singh DW-2 has observed that digit 4 is small in size than the digit 5 and the digit 2 has been written in congested or squeezed manner. It is significant to note that it is emerging in the cross-examination of Dr. Inderjit Singh DW-4 that natural variations are bound to occur in the repeated writings/ figures/digits of a person even if same are written at one and the same time. A perusal of the pronote and receipt indicates that the variations in digit 4 is not substantial which could indicate that the same has been added later on. Moreover perusal of the pronote does not indicate that the digit 2 has been written in congested or squeezed manner though the digit 2 touches the printed portion of the receipt." There is no dispute with this proposition that science of handwriting is not a perfect science but when a party is coming up with a specific plea that there is interpolation in the pronote and receipt, it was required for both the Courts below while appreciating that plea to have a careful look on the pronote and receipt to find as to whether there is any substance therein. In this case, both the Courts have not tried to examine the pronote and receipt Ex. P1 and Ex. P2 minutely. In case, these documents had been minutely examined, there were more than one reasons to agree with the report of the document expert examined by the appellant-defendant. 15. It is not a case where respondent-plaintiff was taken by surprise when the appellant- defendant examined the expert. The plea of the appellant-defendant in the written statement is that "there is interpolation in the pronote and receipt." The plaintiff had availed the services of a Document Expert Mr. Navdeep Gupta but avoided to have his opinion regarding the plea raised by the appellant-defendant. The appellant defendant examined expert who after examination of the plea raised by the appellant-defendant, gave the opinion regarding the addition of digit 4' in front of figure of 50,000 in the pronote Ex. P1 and receipt Ex. Navdeep Gupta but avoided to have his opinion regarding the plea raised by the appellant-defendant. The appellant defendant examined expert who after examination of the plea raised by the appellant-defendant, gave the opinion regarding the addition of digit 4' in front of figure of 50,000 in the pronote Ex. P1 and receipt Ex. P2 with following observations: "An examination of the disputed amount written as 4,50,000 marked D1, D2 on close up examination reveals that the original figure was written as 50,000, which has been changed to 4,50,000/- by simply adding the digit 4' in front of 5'. The digit 4' is small in size than 5' and is placed after a good space from the digit 5' and is not in alignment as it is placed higher than the base of 5'. Its slant is vertical while that the digit 5' is to the right. It has been added with a ball-point pen having almost the same colour as the other writings but having a bluish tint and shade whereas the same is violet of the originally written digit 50,000/-". He then examined the other plea of the appellant-defendant that digit 2' was inserted in front of figure 25,000 in the pronote Ex. P1 and receipt Ex. P2. Dr. Inderjit Singh, Document Expert, on examination of documents observed as follows:- "The half amount is readable as 2,25,000 at mark D4 and is readable as 22,50,000 with an extra 0' which has been cut on the upper side but is still completely visible. The digit 2' has been added in front to change the original figure of 25,000 to 2,25,000 at mark D4 and at mark D3 excluding the last 0' which is cut. The added digit 2' at both places is showing marked difference inter se as at mark D4 it is written in a congested or squeezed manner as compared to D3 where it is almost at part with the other digit 2' which is due to the fact that a lot space was available at mark D3 in front of 25,000 as compare to D4 where there was less space available to add the digit 2' hence written in congested manner." On the basis of above observations, he found clear addition of digits 4' and 2' in the amount of Rs. 50,000 and Rs. 25,000. 50,000 and Rs. 25,000. A careful examination of the pronote and receipt makes one believe the report given by Dr. Inderjit Singh. The perusal of pronote and receipt shows that initially, it was written for Rs. 50,000 and half of this amount was described as Rs. 25,000. The scribe had comfortably written digits in the space available in the relevant column. All the digits of Rs. 50,000 and Rs. 25,000 were given required space. The digit 4' added in front of digit 5' of figure 50,000 is apparently small in size. It is not in alignment and its slant is also different from the slant of digit 5'. The same also appears on the perusal of the figure 4,50,000 in the receipt Ex. P2. This pattern of addition is unnatural and shows that both digits 4' in 4,50,000 and 2' in 2,25,000 were inserted later. 16. The first digit 2' in figure 2,25,000 in pronote and receipt on a bare perusal appears to be inserted one at later stage. In case, the scribe had written the figure 2,25,000 in one stroke in the receipt Ex. P2. He would have used enough space available in the column and the first digit 2' would not have intruded over the printed word "Jisde". There is no such difference of digits found on perusal of the digits of rate of interest, date on the pronote and receipt etc. Even the names, father name, address have been written using proper space in the relevant column. DW2 Dr. Inderjit Singh, in his report Ex. D1, has stated that the digit 4' has been added with a ball-point pen having bluish tint and shade while the tint and share of remaining digits of figure 50,000 is violet. 17. On the perusal of pronote and receipt, I am of the considered opinion that both the Court below have not seriously examined the report of Document Expert D. Inderjit Singh and have ignored the same in a very casual manner. The examination of the photographs Ex. D1 to Ex. D4 further elaborates and supports the reasoning given by Dr. Inderjit Singh while reaching the conclusion that there is interpolation in the pronote and receipt. The examination of the photographs Ex. D1 to Ex. D4 further elaborates and supports the reasoning given by Dr. Inderjit Singh while reaching the conclusion that there is interpolation in the pronote and receipt. In usual course, while scribing the pronote and receipt, the amount of loan is mentioned in words as well but in this pronote and receipt, the amount of loan has not been mentioned in words, which also support and corroborate the version of the appellant that there is interpolation in the pronote and receipt. 18. Examination of the lower Court record and evidence produced by appellant reveals a substantial error on the part of the Courts below in not examining the plea raised by the appellant and the evidence produced on file in proper perspective. A very relevant and material piece of evidence i.e. report of Dr. Inderjit Singh, which is un-rebutted, was ignored. The findings of fact recorded by both the Courts below are found to be perverse. The pronote and receipts have material interpolations raising serious doubts about the genuineness of this document and its execution. Once this Court arrives this conclusion that the pronote and receipt relied upon by the respondent plaintiff were tampered documents, the appellant-defendant cannot be saddled with liability to pay any amount on the basis of such documents. The reference in this regard can be made to the observations made by Hon'ble Supreme Court in case Tatipamula Naga Raju Vs. Pattem Padmavathi, (2011) 4 SCC 726 . The findings on issue Nos. 1, 2, 4, 5 and 6 recorded by the Courts below are reversed and are recorded in favour of the appellant. As a sequel of my discussion above, the substantial question of law as framed in this appeal is answered in favour of the appellant. This appeal has merits and the same is accepted. The judgment and decree passed by the Courts below are set aside and the suit of the respondent-plaintiff is dismissed with costs throughout.