Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 4331 (MAD)

M. Rani v. A. Bala @ Palaniammal

2014-11-19

P.DEVADASS

body2014
Judgment : This appeal present a zigzag trend of decision in the trial Court and in the First Appellate Court. 2. Before the First Appellate Court, the Plaintiff was the appellant. Before us, the defendant is the appellant. 3. Parties are same before us but, their roles are changed. 4. The plaintiff instituted the suit in O.S.No.117 of 2006 in the court of District Munsif, Peirakulam on the footing of Ex.A1, dated 13.09.2003, for the recovery of principal sum of Rs.70,000/- together with accrued interest at the agreed rate viz., 12%, totally Rs.94,960/- 5. The defendant resisted the said claim by filing a written statement. Her, principal defence is denial of execution of Ex.A1, receipt of any amount under such a document. She also alleged malpractice practiced upon her. 6. In these set of pleadings, issues were settled. Evidence was recorded before the trial Court. Plaintiff / Bala @ Palaniammal and scribe to Ex.A1 Rajamanikkam were examined as P.Ws.1 and 2, while the defendant Rani gave rebuttal evidence as D.W.1 and also marked Exs.B1 to B3. 7. The trial Court considered the rival submissions, appreciated the evidence. It was of the view that the disputed signature in Ex.A1 is not similar to her admitted signatures in Exs.B1 to B3. The result is collapse of Plaintiff's case. Suit was dismissed. 8. In the circumstances, plaintiff gone to the next Court / Subordinate Court, Periyakulam, by way of A.S.No.39 of 2008. 9. First appellate Court also scanned the signature in Ex.A1 along with the signatures in Exs.B1 to B3 and also the testimony of D.W.1 before the Court. And it found all are analogous. Result is collapse of the defendant's case. Appeal was allowed. Suit was decreed. 10. Now, the defendant is before us. 11. At the time of admission of this Appeal, the then learned Brother formulated the following substantial questions of law. "1. When the appellant / defendant has specifically denied the factum of execution of Ex.A1 in her pleadings and the trial Court has held that the burden of proof is on the respondent / plaintiff to prove due execution of Ex.A1 by appellant / defendant, whether the approach of the Appellate Court in holding that the burden of proving non execution of Ex.A1 is on the appellant is correct in law? And 2. And 2. In the event of conflicting opinion by trial Court and Appellate Court regarding the similarity of handwriting of the appellant / plaintiff, whether the approach of the Appellate Court in not referring the signature of appellant / plaintiff for scientific investigation to render substantial justice is correct in law?" 12. Very same arguments, very same evidence before us. But it has been contended by the learned counsel for the appellant / defendant necessarily, it calls for a different approach. However, the learned counsel for the respondent / plaintiff would submit that need not be because there is threadbare analysis by the 1st appellate Court. 13. The learned counsel for the appellant to carry home his point of view would submit that human brain is fallible under certain circumstances. Now, two courts, trail Court and appellate Court manned by human personalities differed in their views, in viewing the signature in Ex.A1. In such circumstances, a view by an expert becomes relevant and necessary and it would end the nagging question, in the facts and circumstances such an exercise is called for. 14. On the other hand, the learned counsel for the respondent / plaintiff would submit that the first appellate court pointed out that even in her signatures in Exs.B1 to B3 there is some variation. In this context, the first appellate Court refused to blow inconsequential matters out of proportion. In the circumstances, it had found that the signature in Ex.A1 and her admitted signatures in her documents substantially tally. 15. The learned counsel for the respondent would add that when oral testimony backed by document is cogent, an expert's evidence is to be relegated to the background, it will not play a signal role. In this connection, the learned counsel for the respondent cited Perumal Vs. Balasubramanian ( 2011 (5) CTC 416 ). 16. I have anxiously considered the rival submissions, perused the impugned Judgments and Decrees of the Courts below, records of the case and the decision cited. 17. Looking at Ex.A1 it fails to satisfy the ingredients required for a document to be called a promissory note, as defined in Section 4 of the Negotiable Instruments Act. Thus it will not qualify for the legal presumptions available to Negotiable Instruments under Sections 118, 139 of Negotiable Instruments Act. Ex.A1 has been nomenclatured of Varthamana Kadan Pathiram. In short, it is a loan agreement. 18. Thus it will not qualify for the legal presumptions available to Negotiable Instruments under Sections 118, 139 of Negotiable Instruments Act. Ex.A1 has been nomenclatured of Varthamana Kadan Pathiram. In short, it is a loan agreement. 18. In such a case, plaintiff has to prove the loan having been advanced. The receipt of the money has to be proved. In this regard the base document for the plaintiff is Ex.A1 itself. 19. Consistently in her pleadings and in her evidence the specific stand of the defendant is that the signature in Ex.A1 is not of her. In such circumstances, it becomes a duty of the plaintiff to establish that the signature in Ex.A1 is none other than that of the defendant herself. Moreover, defendant cannot be expected to prove the negative. The trial Court on examination and comparison of the signature in Ex.A1 with the signatures in Exs.B1 and B3 came to the view that the signature in Ex.A1 is not of the defendant. It refused to believe the case of the plaintiff. However, a reversal view has been taken by the first appellate Court that the signature in Ex.A1 is of the defendant. Thus, there is a tie. 20. Now we have been tricked to jump into this fray. A simple question but ticklish issue, we shall not to be trapped in, in the circumstances, we will go by law and prudence. 21. While appreciating the evidence adduced before it, the Court may encounter a situation to compare the disputed signatures in a document with the admitted signatures in some documents. In such circumstances, under Section 73 of the Indian Evidence Act, Courts have been given powers to do it. It cannot be said that courts have no such power. It is a statutory power (See N.S.Arumugam Vs. Trishul Traders and others ( 2006 (2) L.W.167) and K.S.Satyanarayana Vs. V.R.Narayana Rao (AIR 1999 SCC 2544). 22. Under certain circumstances, the courts found that such comparison by the Court may not be best suited and, inappropriate. 23. Lawyers and Judges may be experts in the science of law but may not be so in pure, applied, physical sciences, halography (science of handwriting) datilography (finger printing). There are experts in those sciences. One becomes an expert by attaining qualifications, proficiency and long years of experience in their chosen field. 23. Lawyers and Judges may be experts in the science of law but may not be so in pure, applied, physical sciences, halography (science of handwriting) datilography (finger printing). There are experts in those sciences. One becomes an expert by attaining qualifications, proficiency and long years of experience in their chosen field. Frankly, Lawyers and Judges may be par excellence in Law and law related matters but, they may not be so in the said sciences. To excel in their professional career various sciences affecting human life and conduct, they must be a megalomanic but they cannot be expert in all. They are separate experts in each scientific field. 24. In this context, Section 45 of the Evidence Act, relevant as it introduces admissibility of experts evidence. 25. In Neelalohithadasan Nadar Vs. George Mascrene (1994 Supp (2) SCC 619) wherein in an election petition, the Election Tribunal / High Court compared the admitted signature of a party with the disputed signature and decided the controversy. The Hon'ble Supreme Court, did not approve it. 26. One more important aspect is, even evidence or report of an expert is his opinion evidence. Except datilography, certain sciences such as holography, the opinion will not be definite, conclusive, but the result is based on percentage of probabilities. Experts are not ocular witnesses. It is advisory in nature. A court can take it or differ from it, however with sound reasoning. Experts are not eyewitnesses. They are assisting the Court by using their expertise in science to unearth the truth. Substantive evidence in the form of oral evidence and the pleadings, other documents, surrounding circumstances, natural course of human conduct have edge over these opinion evidence. Expert's evidence alone will not clinch the issue. But they will render valuable guidance and assistance to the Court in its mission to arrive at the truth. That is how it is said obtaining the opinion of expert on the disputed signatures depends on the facts and circumstances of each case. In this regard, there cannot be any cut and dried formula. 27. Now the present case is an exceptional case. The opinion of an expert on the disputed and admitted signatures will be of much assistance to the learned counsels assisting the court and as well as the Court to render a correct finding. 28. In this regard, there cannot be any cut and dried formula. 27. Now the present case is an exceptional case. The opinion of an expert on the disputed and admitted signatures will be of much assistance to the learned counsels assisting the court and as well as the Court to render a correct finding. 28. In this view of the of the matter, we wish that a fresh look is called for after obtaining an expert opinion as to the signature in Ex.A1, which would be after comparing it with her admitted signatures in Exs.B1 to B3. The quality and quantity of sample signatures in admitted documents and in any other forms further will be within the domain of the expert. 29. (i) In view of the forgoing, this second appeal is allowed. (ii) The decree and Judgment of the trial Court as well as the first appellate Court are set aside. (iii) The Suit in O.S.No.117 of 2006, is remitted back to the trial Court viz., District Munsif's Court, Periyakulam. (iv) For the purpose of obtaining opinion of an expert, the trial Court will appoint an Advocate / Commissioner. (v) A reasonable fee has to be fixed for the learned Advocate / Commissioner. (vi) His fee shall be equally shared by both sides. (vii) On receipt of the report of the expert, the trial Court will try the Suit afresh, also give opportunity to both sides to let in their further evidence, if any and decide the suit afresh according to law. (viii) The Court fee paid on the appeal memorandum shall be refunded to the appellant subject to the rules. (ix) Cost throughout will abide by the result of the suit.