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2018 DIGILAW 364 (KAR)

Ravindra v. T. Parameshwara Hegde

2018-03-13

H.B.PRABHAKARA SASTRY

body2018
JUDGMENT : 1. The appellant herein was the plaintiff before the Principal Civil Judge (Jr.Dn.) & J.M.F.C., Sagar, (henceforth for brevity referred to as the `Trial Court’ for short), who had instituted a suit in O.S.No.34/2007 against the present respondent for recovery of money. 2. The summary of the case of the plaintiff in the Trial Court is that the defendant had borrowed a sum of Rs.25,000/- from him on 6.11.2004 and had executed a On-demand Promissory Note agreeing to repay the said loan amount along with interest thereupon @ 18% per annum. Despite the demand, the defendant did not repay the loan amount, which made him to issue a legal notice to him on 12.9.2005. The defendant neither responded to the legal notice nor repaid the loan amount. Hence, the plaintiff was constrained to file suit for recovery of a sum of Rs.25,000/- with accrued interest thereon. 3. The defendant contested the matter by filing his written statement wherein he denied the entire plaint averment with respect to the alleged loan transaction except admitting that the plaintiff was a person known to him. The defendant has categorically and specifically denied the alleged loan transaction much less the one dated 6.11.2004 for a sum of Rs.25,000/-. 4. Based on the pleadings of the parties, the Trial Court framed the following issues: (1) Whether the plaintiff proves that on 6-11-04 the defendant borrowed a sum of Rs.25,000/- and agreeing to repay the same at the rate of interest 18% per annum and the defendant executed on Demand Pronote on the same day in favour of the plaintiff? (2) Whether the plaintiff has entitled to relief as sought for? (3) What order or decree? 5. The plaintiff got himself examined as PW1 and got marked three documents at Exs.P-1 to P3. Defendant neither chose to lead evidence from his side nor produced any document as exhibits. After hearing both side and analyzing the material placed before it, the Trial Court by answering issue Nos.1 and 2 in the affirmative proceeded to decree the suit of the plaintiff by its judgment and decree dated 3.10.2008. 6. Defendant neither chose to lead evidence from his side nor produced any document as exhibits. After hearing both side and analyzing the material placed before it, the Trial Court by answering issue Nos.1 and 2 in the affirmative proceeded to decree the suit of the plaintiff by its judgment and decree dated 3.10.2008. 6. Being aggrieved by the judgment and decree of the Trial Court, the defendant preferred an appeal before the Senior Civil Judge and J.M.F.C., Sagar, (henceforth for brevity referred to as ‘First Appellate Court’), in R.A.No.01/2009 and the said Court framed the following points for its consideration: (1) Whether the appellant/defendant establishes that the trail Court had erred in come to the conclusion that he had executed On Demand Promissory Note and put the signature and received the consideration amount and also agreed to pay the interest as alleged by the respondent? (2) Whether the appellant further establishes that the Judgment rendered by the learned trial Judge is not at all in accordance with the law and against to the evidence? (3) Whether the appellant further establishes that the Judgment and Decree rendered by the learned trial Judge is perverse arbitrary not sustainable under law and calls for interference? (4) What Order? 7. After hearing both sides and perusing the material placed before it, the First Appellate Court answered issue Nos.1 to 3 in affirmative and by its judgment and decree dated 28.7.2011, allowed the appeal and dismissed the suit of the plaintiff. 8. It is against the said judgment and decree of the First Appellate Court, the plaintiff before the Trial Court has preferred this appeal. 9. For the sake of convenience, the parties would be referred to henceforth with the ranks they are holding respectively in the courts below. 10. In response to the notice, the respondent is being represented by his Counsel. 11. The lower court records were called for and the same are placed before the Court. 12. While admitting this appeal, this Court framed the following substantial question of law: “Whether the Lower Appellate Court had erred in law in holding that Ex.P-1 – On demand Pronote was not proved in accordance with law?” 13. Heard the arguments from both sides. 14. 12. While admitting this appeal, this Court framed the following substantial question of law: “Whether the Lower Appellate Court had erred in law in holding that Ex.P-1 – On demand Pronote was not proved in accordance with law?” 13. Heard the arguments from both sides. 14. Learned counsel for the appellant/plaintiff in his argument submitted that, non-marking of the signature of the defendant in Ex.P-1 is for the reason that, marking of Ex.P-1 had taken place before the defendant could file his written statement. Since the defendant did not choose to contest the matter and to file written statement, his evidence was already recorded, as such, he could not mark the signature of the defendant in Ex.P-1. However, the said document has been marked as an exhibit and stated that the same was the document by the defendant. Learned Counsel further submitted that the finding of the First Appellate Court that the courts need not have to compare the handwriting of the signature of the parties is unknown to law and the Trial Court had rightly held that the court can compare the disputed signature with the admitted one and that it had rightly compared the signatures and arrived at a conclusion that the defendant had signed the Promissory Note, which finding could not have been set aside by the First Appellate Court. Learned Counsel further argued that the observation of the First Appellate Court that Section 68 of the Evidence Act, 1872 warrants an examination of at least one of the witnesses to prove the document was also not applicable and not called for in the instant case. Since the document in question was neither a Will nor a Gift deed, but it was only a Promissory Note, while mentioning about the alleged conduct of the defendant, learned Counsel for the appellant submitted that, in-spite of the specific allegation made by the plaintiff that the defendant had borrowed hand-loan and also executed a Pronote as per Ex.P-1, the defendant did not choose to enter the witness box and to lead his evidence. Had he stepped into the witness box, then the plaintiff got an opportunity to cross-examine him and elicit such an admission from his mouth, as such, by not stepping into the witness box and making himself available to the cross-examination of the plaintiff, the defendant has deprived the plaintiff of an opportunity, as such, adverse inference under Section 114(g) of the Evidence Act has to be drawn in favour of the plaintiff. With this, stating that the preponderance of probabilities would clearly establish that the defendant has executed a Pronote in return of hand loan availed by him from the plaintiff, learned Counsel submitted to allow the appeal, as prayed. 15. Learned Counsel for the respondent/defendant in his brief argument submitted that the plaintiff has not discharged his initial burden of proving the execution of the alleged Promissory Note; though the Promissory Note was marked at Ex.P-1, that by itself cannot be noted that there was an execution of the said document by none else than the defendant himself. Further he submitted that the plaintiff’s case should have stood on its own leg, but not as a fact that the defendant did not choose to enter the witness box. However, learned Counsel fairly conceded that the Promissory Note is not a document, which necessarily requires to be attested by the witnesses, as such, Section 68 of the Evidence Act is not applicable, however, in view of the fact that the Promissory Note is shown to have been attested by two witnesses, the plaintiff should have necessarily examined at least one of them in support of his case. Thus, the plaintiff without examining the witnesses, though were available to him and not proving the signature of the defendant over Ex.P-1, has withheld the best possible evidence that was available for him, as such, benefit must be given to the other side. Learned Counsel at the conclusion submitted that even according to Section 67 of the Evidence Act, the document in dispute was required to be proved by proving its contents and signature, which the plaintiff has failed to do. He has also failed to request the Court to refer the matter to the handwriting/signature experts, which also has resulted fatal to his case. Thus, the finding of the First Appellate Court is well-reasoned, which does not warrant interference at the hands of this Court. 16. He has also failed to request the Court to refer the matter to the handwriting/signature experts, which also has resulted fatal to his case. Thus, the finding of the First Appellate Court is well-reasoned, which does not warrant interference at the hands of this Court. 16. The only document upon which the plaintiff relies to prove the alleged loan transaction is, the document marked at Ex.P-1, which is described as On-demand Promissory Note. The said document is shown to have been handwritten on a stamp paper for a sum of Rs.20/- and is dated 6.11.2004. The recital of the said document in summary goes to show that the defendant has availed a hand-loan of a sum of Rs.25,000/- from the plaintiff due to domestic requirement and has agreed to repay the same together with interest @ 1.5% per month as and when demanded by the plaintiff. The said document is also shown to have been signed by the witnesses and also one more signature can be found at the right bottom corner of the document. 17. Now the question is, whether the plaintiff has proved that the said document at Ex.P-1 was executed by the defendant as a documentary evidence of the alleged loan transaction? 18. Admittedly, the plaintiff has got marked the said document as Ex.P-1, however, none of the signatures found on the said document was marked as exhibit by him. It is in this regard, learned Counsel for the appellant in his argument relied upon a judgment of the Hon’ble Supreme Court in P.C. Purushothama Reddiar –vs S.Perumal reported in AIR 1972 SC 608 wherein he drew the attention of this Court at paragraphs18 and 19 of the judgment, which read as below: “18. Before leaving this case is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the Police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility – see Bhagat Ram V. Khetu Ram, AIR 1929 PC 110 . 19. It was next urged that even if the reports in question are admissible we cannot look into the contents of those documents. This contention is again unacceptable. Hence it is not open to the respondent now to object to their admissibility – see Bhagat Ram V. Khetu Ram, AIR 1929 PC 110 . 19. It was next urged that even if the reports in question are admissible we cannot look into the contents of those documents. This contention is again unacceptable. Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.” 19. A reading of the said judgment and more particularly the paragraphs referred to by the learned Counsel for the appellant, nowhere gives an impression that, to prove execution of a document, mere marking of the document is sufficient. On the other hand, the said judgment discloses that apart from mere marking of a document, the admission of said document in a proper manner is also required because it has clearly stated that once the document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence. It is at this juncture, we have to see whether mere marking of document at Ex.P-1 was sufficient or in addition to that, the plaintiff was required to establish that the said document was executed by the defendant himself. 20. In that regard, the written statement of the defendant is the specific denial of the execution of any document much less On-demand Promissory Note dated 6.11.2004 and also he executing the said document by prescribing his signature on that. Specifically he has taken a contention in his written statement that he has never executed the said document and also the signature said to have been found in the said document does not belong to him. He has further stated that he is also unknown to the witnesses, who are said to have witnessed the said document. In the specific denial of the plaint averment, the available evidence with respect to the alleged execution of Ex.P-1 is required to be looked into. 21. The plaintiff, who got himself examined as PW1, in his examination-in-chief in the form of affidavit evidence, has stated in Kannada language, the English translation of which reads that, in the presence of witnesses while availing the loan, an On-demand Promissory Note also (I) have got written. 21. The plaintiff, who got himself examined as PW1, in his examination-in-chief in the form of affidavit evidence, has stated in Kannada language, the English translation of which reads that, in the presence of witnesses while availing the loan, an On-demand Promissory Note also (I) have got written. Thus, such statement made in the examination-in-chief in verbatim mentioned that it was not the defendant, but it was the plaintiff, who has got written the said Promissory Note, however, in his cross-examination while marking the said document at Ex.P-1, he has described the said Promissory Note as the one written by the defendant. By reading his evidence in its entirety, it can be noticed that, throughout in his evidence, the witness has stated only that the Promissory note was written, may be by the defendant, but nowhere he stated that the said Promissory Note was either signed by the defendant/borrower or was executed by the defendant/borrower. Mere writing of a document cannot be taken as an execution of the same. 22. As observed by the Hon’ble Apex Court in the very same judgment in P.C.Purushothama Reddiar’s case (supra), mere marking of document and its proper admission may not be the conclusive evidence of its contents. Thus, mere stating that the defendant has written would not necessarily mean that the defendant has executed the said document by subscribing his signature admitting to the contents of the said document in order to prove that it was incumbent upon the plaintiff/PW1 to state that the defendant had executed the said document by subscribing his signature to the same, which also would have warranted him to identify and mark the signature of the defendant in the document. Admittedly, the plaintiff has not done that. Even though learned Counsel for the plaintiff/appellant in his argument submitted that, marking of the said document as Ex.P-1 was already done prior to the defendant filing his written statement, that cannot be an excuse for non-marking of the signature of executor of the disputed document at Ex.P-1. Admittedly, the plaintiff has not done that. Even though learned Counsel for the plaintiff/appellant in his argument submitted that, marking of the said document as Ex.P-1 was already done prior to the defendant filing his written statement, that cannot be an excuse for non-marking of the signature of executor of the disputed document at Ex.P-1. Though the defendant had filed his written statement, may be belatedly, once the defendant has taken a specific contention of he having not executed any document much less the Promissory Note dated 6.11.2004 and specific issue regarding the proving of the alleged loan transaction was framed thereafter, the plaintiff had all the opportunity to seek permission from the court to lead his further evidence in the form of examination-in-chief and marking the alleged signature of the executant of the said document at Ex.P-1. As such, the argument of the learned Counsel for the appellant that mere non-marking of the signature of the defendant at Ex.P-1 was with justifiable cause and it would not take away the value of the Promissory Note/Ex.P-1 cannot be accepted in the light of the circumstances of this case. 23. Section 67 of the Evidence Act speaks about proof of signature and handwriting of a person alleged to have signed or written document produced. According to the said Section, if a document is alleged to have been signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Therefore, when the plaintiff has contended that Ex.P-1 was in the handwriting of the defendant, it was incumbent upon him to establish the same specifically when the defendant had categorically denied about he executing the Promissory Note. In that regard, even though Section 68 of the Evidence Act was not applicable in the instant case since the Promissory Note was not legally required to be attested by witness, however, the document at Ex.P-1 was shown to have been signed in the presence of two witnesses, who also have subscribed their signature. The plaintiff could have summoned at least either of them to substantiate his case. The plaintiff could have summoned at least either of them to substantiate his case. Thus, firstly, without alleging and deposing in his evidence that the Promissory Note was executed by the defendant, secondly without marking the alleged signature of the defendant in Ex.P-1 and particularly without even examining any of the witnesses in his support, the mere self-serving statement of the plaintiff that the defendant had got written the document at Ex.P-1 cannot be taken that the defendant has executed the said document at Ex.P-1 admitting its contents therein. 24. The Trial Court on its own has compared the signature said to be of defendant on Ex.P-1 and the signature on RPAD card at Ex.P3 with the one found in the vakalath of the defendant and has come to the opinion that, defendant himself has marked his signature in Ex.P-1. The First Appellate Court observing that though Court cannot take the risk of comparing the signature on its own, at least while comparing the disputed signature with the admitted one, as per the second part of Section 73 of the Evidence Act, the Trial Court should have called the person and obtained his handwriting as well as signature and then compared the same with the disputed signature and observing that the Trial Court has not followed the said procedure, it disbelieved that the signature said to be of the defendant on Ex.P-1 was that of him. In the circumstances of the case, it has to be said that the approach made by both the courts below are not in accordance with law. It is for the reason that Section 73 of the Evidence Act reads as below: “73. Comparision of signature, writing or seal with others admitted or proved In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.” 25. A reading of the above Section goes to show that when the dispute is with respect to the handwriting in such a case, the Court as per the second part of Section 73 of the Evidence Act may direct any person present in Court to write any words or figures for the purpose of enabling it to compare the words or figures so written with any words or figures alleged to have been written by such person. Whereas when the dispute is with regard to the signature, it is not always necessary for the Court to direct the presence of person before it and to put his signature in its presence. On the other hand, when the admitted signature of the alleged execution is available before it, then it can make use of the same to compare the same with the disputed signature. The first para to Section 73 makes it very clear that the said comparison of the admitted signature would be with the one which is to be proved, the signature to be proved shall be the disputed signature, in such case, the court must be first made clear as to which is the disputed signature in order to enable the court to notice and to take legal cognizance of the disputed signature. Said disputed signature is required to be identified by any of the witnesses and get it marked. In the instant case, admittedly, when the disputed document at Ex.P-1 bears more than one signature in it (in the instant case, three signatures), without identifying as to which particular signature is that of the alleged executant, it is not possible to compare the admitted signature with any of them. It is for said purpose, it was incumbent upon the plaintiff to get the disputed signature marked as an exhibit, so that the admitted signature available before the Court could have been compared either under Section 73 of the Evidence Act or taking recourse to Section 45 of the Evidence Act, by referring the same to an expert opinion. It is for said purpose, it was incumbent upon the plaintiff to get the disputed signature marked as an exhibit, so that the admitted signature available before the Court could have been compared either under Section 73 of the Evidence Act or taking recourse to Section 45 of the Evidence Act, by referring the same to an expert opinion. However, both the courts below without noticing that among more than one signature available in the disputed document, no single signature was marked as a disputed signature have proceeded on the presumption that the disputed signature is identified. It is the said error committed by both the courts has led them to give a divergent view regarding comparison of signature. However, as observed above, in the present case, the question of comparison does not arise for the simple reason that the admitted signature in the form of signature of the document on vakalath, if at all to be compared, has to be compared with disputed signature, but the very disputed signature since has not been identified in Ex.P-1, the question of comparing either by the court itself or by the expert, “disputed signature” with “admitted signature” does not arise. Therefore, the argument of the learned Counsel that the First Appellate Court has committed an error and that non-marking/identifying of the disputed signature in the document Ex.P-1 would not weaken his case is not acceptable. Consequently, it has to be necessarily held that even though the plaintiff has averred that the defendant had availed hand-loan of Rs.25,000/- from him, he failed to prove the same with cogent and reliable evidence. As such, the conclusion arrived at by the First Appellate Court, though with different reasoning, would not require any interference in it. Accordingly, I answer the substantial question of law in the negative and proceed to pass the following ORDER The appeal is dismissed. The judgment and decree dated 28th July 2011 passed in R.A.No.01/2009 by the Senior Civil Judge and J.M.F.C., Sagar, is hereby confirmed.