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2014 DIGILAW 4153 (MAD)

V. Veeramalai v. Krishna Chettiar

2014-11-07

P.DEVADASS

body2014
JUDGMENT P. DEVADASS, J. 1. The unsuccessful defendants in O.S. No. 101 of 2004, before the 1st Additional Subordinate Court, Tiruchirappalli and in the First Appellate Court in A.S. No. 89 of 2009, have directed this second appeal. 2. Respondent/plaintiff instituted the suit alleging that on 25.11.2001, appellants/ defendants have borrowed Rs. 1,00,000/- agreeing to repay it with 12% interest per annum, based on the promissory note, dated 25.11.2001 (Ex.A1), however, they did not pay in spite of a notice, dated 26.12.2003 (Ex.A2), thus, the suit. 3. 1st defendant/1st appellant filed written statement, which has been adopted by 2nd defendant/2nd appellant resisting the suit. It has been pleaded in the written statement that respondent/plaintiff is a money lender, as against certain blank promissory note, 2nd defendant/2nd appellant alone had borrowed money from respondent/plaintiff putting her thumb impression, however, later respondent/plaintiff forged the signature of 1st defendant/1st appellant also and made the suit promissory note. It has been further alleged that 1st defendant/1st appellant always used to sign as V. Veeramalai @ Thangaraj and not as V. Thangaraj, which is found in the said promissory note. 4. On the above divergent pleadings, the Trial Court framed two issues and tried the suit. The respondent/plaintiff examined himself as P.W.1 and the scribe of Ex.A1 as P.W.2 and marked Exs.A1 to A3, while the 1st appellant/1st defendant examined himself as D.W.1 and marked Exs.B1 to B4. 5. Appreciating the arguments of both and the evidence, the Trial Court came to the conclusion that respondent/plaintiff has proved due execution of Ex.A1 promissory note, however, appellants/defendants have not discharged their burden by taking any steps for examination of signature in Ex.A1 and thus decreed the suit. 6. The First Appellate Court in A.S. No. 89 of 2009, referring to Sections 20 and 118 of Negotiable Instruments Act, held that an authorization has been given by appellants/ defendants to the plaintiff fill up the blank promissory note and due execution of Ex.A1 promissory note has been established and the legal presumption, under Section 118 of Negotiable Instruments Act arose. The First Appellate Court also remarked that no step has been taken by the appellants/defendants to compare the admitted signature with the disputed signature. In the circumstances, there is no need to send the document to expert for his opinion, ultimately, concurring with the findings of the Trial Court dismissed the appeal. 7. The First Appellate Court also remarked that no step has been taken by the appellants/defendants to compare the admitted signature with the disputed signature. In the circumstances, there is no need to send the document to expert for his opinion, ultimately, concurring with the findings of the Trial Court dismissed the appeal. 7. Now, the appellants/defendants have directed this Second Appeal. 8. It has been contended by the learned counsel for the appellants/defendants that the signature of the first defendant in Ex.A1 has been forged. He was not in the habit of signing in the manner as in which the signature is found in Ex.A1. Learned counsel for the appellants/defendants further contended that in the First Appellate Court, an application was filed to send the document to expert for comparison and his opinion, but that was dismissed on the ground of delay. No opportunity was given to the appellants/ defendants to establish their case. 9. Learned counsel for the appellants/defendants also contended that it cannot be said that the Courts have no power under Section 73 of Evidence Act to compare the admitted signature with the disputed signature, however, if steps have been taken by the appellants/defendants to establish the truth, it cannot be denied on the ground of attempt to protract the trial. In this respect, the learned counsel for the appellants cited N.S. Arumugam vs. Trishul Traders & others, 2006 (2) L.W. 167 and K.S. Satyanarayana vs. V.R. Narayana Rao, AIR 1999 SCC 2544. 10. Learned counsel for the appellants/defendants also contended that the practice of Courts itself becoming an expert in comparing the admitted signature with disputed signature has been deprecated by the Higher Courts. In this respect the learned counsel for the appellants cited A. Neelalohithadasan Nadar vs. George Mascrene, 1994 Supp (2) SCC 619. 11. I have anxiously considered the submissions of the learned counsel for the appellants/ defendants, perused the entire records of the case, the impugned Judgments and the citations produced by the learned counsel for the appellants/defendants. 12. This is a simple suit based on Ex.A1 promissory note. In such a suit, what is required on the part of the respondent/plaintiff is to prove the due execution of promissory note by letting in relevant evidence. Once it is proved, the next consequence is immediate emergence of the presumption under Section 118 of Negotiable Instruments Act. It is a legal presumption. In such a suit, what is required on the part of the respondent/plaintiff is to prove the due execution of promissory note by letting in relevant evidence. Once it is proved, the next consequence is immediate emergence of the presumption under Section 118 of Negotiable Instruments Act. It is a legal presumption. It is not shall presume, it is only may presume. Thus, it is always open to appellants/defendants to rebut/displace such presumption (See – Bharat Barrel & Drum MFG. Go. vs. Amin Chand Payrelal, 1999 (3) SCC 35 , M.S. Narayana Menon vs. State of Kerala, 2006 (6) SCC 39 and Mallavarapu Kasivisweswara Rao vs. Thadikonda Ramulu Firm, 2008 (7) SCC 655 . 13. He, who comes to the Court must prove his case. Equally, when no evidence is produced, who will fail, upon whom the burden of proof lies. This duty of the party to prove his case is his initial burden. Initial burden is normally imposed on the respective parties. They cannot disown it. They cannot shift it. That is how, it is said that the initial burden will never change, but once the initial burden is discharged, then it will shift to the other side. That is how, the onus is stated to be a pendulum and also a shifting stand. Once execution is proved, defendant has to disprove it, otherwise he will be out of Court. 14. The Court must facilitate parties to place their evidence. In the instant case, in his written statement, 1st defendant took the specific plea that the signature in Ex.A1 promissory note is not his signature and he used to sign only as V. Veeramalai @ Thangaraj, however in Ex.A1, the signature is as V. Thangaraj. In such circumstances, the plea set up by appellants/defendants necessarily has to be established by them. 15. There cannot be any quarrel over the statutory principle that the Courts are empowered to compare the admitted signature with the disputed signature (See Section 73 of Evidence Act), but Courts are manned by human beings. So far as the scientific knowledge is concerned most of the Judges are laymen, they are experts in law so also the lawyers, but not great scientists. In certain aspects, expert's opinion is needed. Section 45 of Evidence Act enables reception of such opinion evidence from persons having knowledge in the related field. So far as the scientific knowledge is concerned most of the Judges are laymen, they are experts in law so also the lawyers, but not great scientists. In certain aspects, expert's opinion is needed. Section 45 of Evidence Act enables reception of such opinion evidence from persons having knowledge in the related field. But, such expert's evidence is not equivalent to the evidence of an eye witness. The expert gives his opinion analyzing the material produced before him using his scientific field knowledge. For giving such opinion, the person must be qualified. 16. That is how, when in an election dispute, when the High Court compared the admitted signature with disputed signature in view of their power under Section 73 of Evidence Act, in A. Neelalohithadasan Nadar's case (supra), wherein the Honourable Apex Court observed as under:- "No meaningful argument on facts in regard thereto was addressed before the Court except the approach of employing Section 73 of the Evidence Act on ground that High Court should not have become an expert." 17. In this case, the 1st defendant in support of his version that the signature in Ex.A1 is not of him, marked Exs.B1 to B4. In this connection, the Trial Court in its Judgment remarked that the first defendant/appellant for comparison of his signature in Ex.A1 with reference to signature in Exs.B1 to B4 did not take any step. Even the First Appellate Court in its Judgment also made similar remark as against the appellants/defendants. 18. It is pertinent to note that in the course of arguments, the appellants/defendants submitted that an application was filed before the First Appellate Court to send the admitted signature with disputed signature for expert's opinion, but it was dismissed as an attempt to protract the trial. 19. It is a great pity. On the one hand, the Trial Court and the First Appellate Court simply lambasted the appellants/defendants for having not taken any steps to do the same, on the other hand in their Judgments they heavily criticized the appellants/defendants for having not done so. It is blowing hot and cold at the same time. The appellants/ defendants was completely in bewilderment. Under this circumstance, they came to this Court. 20. Truth must be unraveled. Cracking the truth and rendering justice is the only function of the Courts and lawyers. Truth should triumph. It is blowing hot and cold at the same time. The appellants/ defendants was completely in bewilderment. Under this circumstance, they came to this Court. 20. Truth must be unraveled. Cracking the truth and rendering justice is the only function of the Courts and lawyers. Truth should triumph. On any account, there shall not be traversity of justice. Therefore, in order to arrive at the truth, Courts are given wide power. This they can exercise at any stage of the case (See Order XLI Rule 27 C.P.C.). In such view of the matter, the First Appellate Court ought not to have simply dismissed the application of the appellants. 21. In the facts and circumstances and also noticing the observations of the Honourable Apex Court in A. Neelalohithadasan Nadar's case (supra), signature in Ex.A1 has to be compared and analyzed with admitted signature of first defendant/D.W.1. 22. In view of the fore-goings – (i) The Second Appeal is allowed. (ii) Judgment and Decree of the First Additional Sub Court, Tiruchirappalli, in O.S. No. 101 of 2004 and Judgment and Decree of the Principal District Court, in A.S. No. 89 of 2009 are set aside. (iii) Suit in O.S. No. 101 of 2004 is remanded back to the Trial Court/First Additional Sub Court, Tiruchirappalli. (iv) The Trial Court will appoint an Advocate/Commissioner in connection with comparison of signature in Ex.A1 with disputed signature as per Rules. (v) Advocate/Commissioner fees shall be paid by the appellants/defendants. (vi) After the receipt of the report of Expert, the Trial Court will conduct the trial afresh. (vii) The Trial Court will give reasonable opportunity to both sides and also receive further evidence oral and documentary, if any, and dispose of the suit according to law. (viii) Court fee paid on the appeal memorandum shall be refunded to appellants/ defendants as per Rules. (ix) Costs throughout shall abide by the result of the suit. (x) Consequently, connected miscellaneous petition is closed.