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2016 DIGILAW 3987 (MAD)

A. Velappan Pillai v. R. Sudhakaran Pillai

2016-11-22

S.S.SUNDAR

body2016
JUDGMENT : S.S. Sundar, J. The defendant in the suit is the appellant in the above second appeal. The respondent herein filed a suit in O.S.No.1 of 2007 on the file of the Sub Court, Padmanabhapuram, against the appellant herein for recovery of a sum of Rs. 1,36,000/- with interest at the rate of 9% per annum on the principal sum of Rs. 1,00,000/-. 2. The case of the plaintiff/respondent is that the defendant/appellant borrowed a sum of Rs.1,00,000/- from the plaintiff/respondent on 28.12.2003 agreeing to repay the same with interest at the rate of 12% per annum. It is also the case of the plaintiff/respondent that in evidence of the transaction, the defendant/appellant issued a post dated cheque dated 01.01.2004 drawn on Catholic Cyrian Bank, Nagercoil. 3. It was the further case of the plaintiff/respondent that the defendant/appellant requested the plaintiff/respondent not to present the cheque on 01.01.2004 and promised to pay the amount as early as possible. Since the defendant/appellant was evading repayment under one pretext or the other, the plaintiff/respondent submitted that he issued a notice on 07.12.2006 to the defendant/appellant through his Lawyer and that the defendant/appellant did not reply after receiving the notice. The suit was filed only on 28.12.2006 and the plaintiff/respondent has explained that the last date for filing the suit fell on 27.12.2006 and that the suit is filed on 28.12.2006 on the reopening day of the Court after Christmas holidays. 4. The suit was contested by the defendant/appellant denying the loan transaction dated 28.12.2003. The receipt of Rs. 1,00,000/- was specifically denied in the written statement. 5. It is also the specific case of the defendant/appellant that the defendant/appellant did not offer any post dated cheque evidencing the loan transaction and that there was no promise for payment of interest. It was further submitted by the defendant/appellant that the plaintiff/respondent has made material alterations in the cheque, and that the signatures available in the cheques are only forged. After describing the transaction as a false transaction, the defendant/appellant also raised a plea of limitation as well as the maintainability of the suit. 6. The trial Court decreed the suit as prayed for. The appellate Court in A.S.No.39 of 2008 dismissed the appeal and confirmed the findings of the trial Court. As against the concurrent judgment and decree of the Courts below, the present appeal has been filed by the defendant. 7. 6. The trial Court decreed the suit as prayed for. The appellate Court in A.S.No.39 of 2008 dismissed the appeal and confirmed the findings of the trial Court. As against the concurrent judgment and decree of the Courts below, the present appeal has been filed by the defendant. 7. At the time of admitting the Second Appeal, this Court framed the following substantial question of law: "Whether the Courts below have rendered a perverse finding that the execution of Ex.A1, cheque was proved by the respondent/plaintiff solely on the interested testimony of P.W.1, the plaintiff himself, when specific denial of the execution was made by the appellant/defendant, that too, in the absence of any steps taken by the respondent/plaintiff to get the admitted and disputed signatures compared?" 8. Mr. M. Kalyanasundaram, learned Senior Counsel for the defendant/appellant brought to the notice of this Court the memo filed by the counsel on record for the defendant/appellant praying for allowing the appeal on the ground that the legal liability on the defendant/appellant to pay money on Ex.A1 Cheque, dated 01.01.2004, has seized long back and that the Second Appeal can be allowed on that score. Today, the learned Senior Counsel requested this Court to frame additional substantial questions of law as follows: "Has not Ex.A-1 Cheque dated 01.01.2004 as a Negotiable Instrument, lapsed and became valueless, on account of its non-presentation to Drawee Bank, in terms of the provisions of Negotiable Instruments Act, 1881?" 9. The learned Senior Counsel for the defendant/appellant made the following submissions: 9.1. The suit filed on the basis of the cheque under Ex.A1, dated 01.01.2004, for a sum of Rs.1,00,000/-, which is a negotiable instrument under Section 138 of the Negotiable Instruments Act, 1881, without the same being presented for collection through bank, is not maintainable, as the cheque had become valueless and lapsed. 9.2. Secondly, the signature of the defendant/appellant in the cheque was specifically denied. It was in that context, the learned Senior Counsel for the defendant/appellant relied upon Sections 45, 47 and 102 of the Indian Evidence Act and submitted that the burden which lies on the plaintiff/respondent is not discharged to prove the signature of the defendant/appellant in the cheque alleged to have been issued to the plaintiff/respondent. 9.3. It was in that context, the learned Senior Counsel for the defendant/appellant relied upon Sections 45, 47 and 102 of the Indian Evidence Act and submitted that the burden which lies on the plaintiff/respondent is not discharged to prove the signature of the defendant/appellant in the cheque alleged to have been issued to the plaintiff/respondent. 9.3. Thirdly, the plaintiff/respondent was working under the defendant/appellant and hence, some cheques were misused by the plaintiff/respondent and that this aspect was not considered properly by the Courts below. 9.4. Fourthly, the suit is barred by limitation as the suit was filed only on 28.12.2006 even though the date of loan, even according to the case of the plaintiff/respondent, was on 28.12.2003. 9.5. Finally, it was submitted by the learned Senior Counsel for the defendant/appellant that the plaintiff/respondent has not verified the plaint and that the suit ought not to have been entertained, as there was no proper presentation of the plaint as per Section 26 (2) of C.P.C. 10. The Additional question of law on the maintainability of suit has no merits having regard to the facts of this case. The plaintiff has filed the suit on the original cause of action by stating that he has advanced a loan of Rs.1,00,000/- to the defendant/appellant on 28.12.2003 agreeing to repay the same with interest at the rate of 12% per annum. It is only to evidence the said transaction the plaintiff has pleaded that defendant/appellant had issued the post dated cheque on the date of advancing the loan. Hence, the suit is not on the negotiable instrument but on the original cause of action namely the borrowal of the said amount of Rs.1,00,000/- by the defendant/appellant from the plaintiff/respondent. Hence, the contention of the learned Senior Counsel that the suit on the basis of the cheque dated 01.01.2004 which was not presented and became valueless, is not maintainable, has no legal basis. 11. The learned Senior Counsel appearing for the defendant/appellant relied upon the judgment of the Hon'ble Supreme Court in the case of Lalit Popli v. Canara Bank and others reported in (2003) 3 SCC 583 wherein it has been held as follows: "13. 11. The learned Senior Counsel appearing for the defendant/appellant relied upon the judgment of the Hon'ble Supreme Court in the case of Lalit Popli v. Canara Bank and others reported in (2003) 3 SCC 583 wherein it has been held as follows: "13. It is to be noted that under Sections 45 and 47 of the Evidence Act, the Court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the Court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three Sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the Court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the Handwriting Expert, the Court can compare the admitted writing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of Handwriting Expert need not be invariably corroborated. It is for the Court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when experts' evidence is not there, Court has power to compare the writings and decide the matter. [See Murari Lal v. State of Madhya Pradesh (1980) 1 SCC 704 ]" 12. Relying upon the said judgment, the learned Senior Counsel submitted that when the signature of the defendant/appellant is disputed, the only manner in which the signature can be proved is by sending the signature for expert opinion or to compare the admitted signature with disputed signature by the Court itself as provided under Section 73 of the Indian Evidence Act. The submission of the learned Senior Counsel does not go well with the judgment of the Hon'ble Supreme Court in paragraph 13 of its judgment. The submission of the learned Senior Counsel does not go well with the judgment of the Hon'ble Supreme Court in paragraph 13 of its judgment. The Hon'ble Supreme Court has never said in the said judgment that the signature of a person cannot be proved otherwise than by comparing the signature in the disputed document with admitted one or by sending them to get expert opinion. The Hon'ble Supreme Court has only observed that the Court also can compare the admitted writing with the disputed writing and come to its own independent conclusion, irrespective of an opinion of the hand writing expert and that such an exercise of comparison is permissible under Section 73 of the Indian Evidence Act. It is also made clear by the Hon'ble Supreme Court that even without an expert evidence, the Court has power to compare the writing and decide that matter. Therefore, the judgment that was relied upon by the learned Senior Counsel for the defendant/appellant is not really helpful to strengthen his submission. As a matter of fact, this Court has done the exercise of comparing the signature of the defendant/appellant in the disputed cheque and the signature of the defendant/appellant found in the written statement. On a comparison, the defendant/appellant, is in the habit of writing his full name with initial while signing. The signature with initial appears to be distinct and it is not very easy to reproduce the signature by another person without there being uninterrupted flow of pen or lifting of pen. The signatures appears to be similar by one and the same person in view of the similarity in the style of letters found in both documents. The size of the letters and the length of the whole signature with gaps are identical. On mere looking and comparing the admitted signature with the disputed one, gives a clear impression that the signature found in the disputed cheque which is marked as Ex.A1 is the signature of the defendant/appellant in the suit. Further, the cheque can also be proved to be in the handwriting of the defendant/appellant as any other document by any other evidence and circumstances to the satisfaction of the Court. 13. The learned Senior Counsel for the defendant/appellant relied upon a judgment of the Hon'ble Supreme Court in the case of S. Gopal Reddy v. State of A.P. reported in (1996) 4 SCC 596 . 13. The learned Senior Counsel for the defendant/appellant relied upon a judgment of the Hon'ble Supreme Court in the case of S. Gopal Reddy v. State of A.P. reported in (1996) 4 SCC 596 . The learned Senior Counsel relied upon paragraph 29 of the said judgment which is extracted as follows: "29. We are unable to agree, in the established facts and circumstanced of this case, with the view expressed by the courts below that PW1 is a competent witness to speak about the handwriting of the appellant and that the opinion of PW3 has received corroboration from the evidence of PW1. PW1 admittedly did not receive any of those letters. He had no occasion to be familiar with the handwriting of the appellant. He is not a handwriting expert. The bald assertion of PW1 that he was "familiar" with the handwriting of the appellant and fully "acquainted" with the contents of the letters, admittedly not addressed to him, without disclosing how he was familiar with the handwriting of the appellant, is difficult to accept. Section 67 of the Evidence Act enjoins that before a document can be looked into, it has to be proved. Section 67, of course, does not prescribe any particular mode of proof. Section 47 of the Evidence Act which occurs in the chapter relating to 'relevancy of facts' provides that the opinion of a person who is acquainted with the handwriting of a particular person is a relevant fact. Similarly, opinion of a handwriting expert is also a relevant fact for identifying any handwriting. The ordinary method of proving a document is by calling as a witness the person who had executed the document or saw it being executed or signed or is otherwise qualified and competent to express his opinion as to the handwriting. There are some other modes of proof of documents also as by comparison of the handwriting as envisaged under Section 73 of the Evidence Act or through the evidence of a handwriting expert under Section 45 of the Act, besides by the admission of the person against whom the document is intended to be used. The receiver of the document, on establishing his acquaintance with the handwriting of the person and competence to identify the writing with which he is familiar, may also prove a document. The receiver of the document, on establishing his acquaintance with the handwriting of the person and competence to identify the writing with which he is familiar, may also prove a document. These modes are legitimate methods of proving documents but before they can be accepted they must bear sufficient strength to carry conviction. Keeping in view the in-conclusive and indefinite nature of the evidence of the handwriting expert PW3 and the lack of competence on the part of PW1 to be familiar with the handwriting of the appellant, the approach adopted by the courts below to arrive at the conclusion that the disputed letters were written by the appellant to Ms. Vani on the basis of the evidence of PW1 and PW3 was not proper. The doubtful evidence of PW1 could neither offer any corroboration to the inconclusive and indefinite opinion of the handwriting expert PW3 nor could it receive any corroboration from the opinion of PW3. We are not satisfied, in the established facts and circumstances of this case, that the prosecution has established either the genuineness or the authorship of the disputed letters allegedly written by the appellant from the evidence of PW1 or PW3. The courts below appear to have taken a rather superficial view of the matter while relying upon the evidence of PW1 and PW3 to hold the appellant guilty. We find it unsafe to base the conviction of the appellant on the basis of the evidence of PW1 or PW3 in the absence of substantial independent corroboration, internally or externally, of their evidence, which in this case is totally wanting." 14. The learned Senior Counsel appearing for the defendant/appellant further submitted that since the plaintiff/respondent has not resorted to the well known method of proof of documents by getting the evidence of a handwriting expert as provided under Section 45 of the Indian Evidence Act, the Courts below ought to have drawn an adverse inference against the plaintiff/respondent. The learned Senior Counsel appearing for the defendant/appellant further submitted that since the plaintiff/respondent has not resorted to the well known method of proof of documents by getting the evidence of a handwriting expert as provided under Section 45 of the Indian Evidence Act, the Courts below ought to have drawn an adverse inference against the plaintiff/respondent. Secondly, the learned Senior Counsel for the defendant/appellant submitted that the plaintiff/respondent who has not taken any effort to produce any other evidence or called upon any independent evidence to prove the signature of the defendant/appellant in the cheque has to fail as the burden of proof lies on him especially in the absence of any other evidence to make out a prima facie case and that the lower Courts ought to have disbelieved the case of the plaintiff/respondent on the ground that the plaintiff/respondent has not discharged his burden of proof as contemplated under Section 102 of the Indian Evidence Act. In short, the learned Senior Counsel submitted that in the absence of any other evidence, the case of plaintiff/respondent about the signing of cheque cannot be accepted. I find that the learned Senior Counsel for the defendant/appellant submits a proposition of law which is not discernible from the judgments cited by him before this Court. 15. Regarding the question of limitation, the learned counsel for the plaintiff/respondent pointed out even in paragraph 5 in the plaint the plaintiff/respondent has stated as follows: "5.The suit should be filed on 27.12.2006, but the court was on Christmas Holidays from 23.12.2006 to 27.12.2006. So, the suit is filed on the immediate next working day i.e., on 28.12.2006. Hence, there is no limitation and the suit is filed in time." 16. It is admitted that the plaintiff/respondent has to file a suit on or before 27.12.2006, as the three years period expires on 27.12.2006. Since it is also admitted that 27.12.2006 is a holiday, the suit filed on 28.12.2006, immediately on the reopening day, is well within time and there is no merit in the contention of the learned Senior Counsel appearing for the defendant/appellant. The last of the submission is about the presentation of the plaint. The learned Senior Counsel for the defendant/appellant contended that the plaintiff/respondent has not verified the plaint as contemplated under Section 26 (2) of C.P.C. as the verification found in the plaint is not signed by the plaintiff/respondent. The last of the submission is about the presentation of the plaint. The learned Senior Counsel for the defendant/appellant contended that the plaintiff/respondent has not verified the plaint as contemplated under Section 26 (2) of C.P.C. as the verification found in the plaint is not signed by the plaintiff/respondent. This submission is factually not correct as the plaintiff has signed below the verification. There is no plea regarding the improper presentation of the plaint for any irregularity before the trial Court. It has been held by this Court that omission to file even an affidavit at the time of institution of the suit does not really invalidate the suit. Since the point was not raised either before the trial Court or before the lower appellate Court, the defendant/appellant cannot be allowed to raise as a pure question of law especially facts are involved. Hence, this plea is rejected. 17. Regarding the third submission of the learned Senior Counsel for the defendant/appellant, the learned counsel for the respondent referred to the written statement of the defendant/appellant and pointed out that the defendant/appellant has not even stated in the written statement that the plaintiff/respondent was employed by the defendant/appellant any time during the issuance of cheque so as to suggest that the plaintiff had access to the cheques drawn by the defendant/appellant. It is seen that the written statement does not disclose an averment that the plaintiff/respondent was ever an employee of the defendant/appellant. Even in the cross-examination of the plaintiff/respondent, what was suggested to P.W.1, was about the fact that the plaintiff/respondent was an ex-employee. There was no suggestion to the plaintiff/respondent during the cross examination about his employment with the defendant/appellant at the time of drawing of cheque which is marked as Ex.A1. In the said circumstances, the contention of the learned Senior Counsel for the defendant/appellant that the lower Court has failed to consider the material fact that the plaintiff/respondent was an employee of the defendant/appellant has no merit as this was never pleaded by the defendant/appellant in the written statement and the suggestion and the admission of the plaintiff/respondent was only about the fact that the plaintiff/respondent was an ex-employee of the defendant/appellant. The defendant/appellant though has denied his signature in the cheque, in paragraph 6 of the written statement, his main defence appears to be one to impress the Court that the cheques were not at all intended for enforcing any subsisting liability. 18. It was also a matter of fact that defendant/appellant never complained about the missing of the cheques from his custody. It is also admitted in this case that the defendant/appellant never informed the bank to stop payment when the missing cheques are presented. Even after filing of the suit, the defendant/appellant did not file any criminal complaint against the plaintiff/respondent for committing an act of forgery or theft. Admittedly, the cheque Ex.A1 is the one issued to the defendant/appellant by his banker in connection with the account maintained by him in the bank. In such circumstances, it cannot be said that the cheque Ex.A1 was forged by the plaintiff/respondent. There is a presumption in law regarding consideration. This Court is not in a position to accept or appreciate the contention of the defendant/appellant in this case. The findings of the Courts below are on the basis of appreciation of evidence, and supported by reasons. In the above circumstances, I find that the concurrent findings of the Courts below do not warrant any interference and hence, there is no merit in the Second Appeal and the same is liable to be dismissed. The Second Appeal is, therefore, dismissed and the judgment and decree of the learned District Judge, Kanyakumari at Nagercoil, in A.S. No.39 of 2008, dated 09.06.2009, confirming the judgment and decree of the learned Subordinate Judge, Padmanabhapuram, in O.S. No.1 of 2007, dated 03.10.2007, is confirmed. There is no order as to costs. Consequently, the connected miscellaneous petition is closed.