JUDGMENT : 1. The present respondent had instituted a suit against the present appellant in the Court of the Civil Judge (Sr.Dn.), Virajpet, (henceforth for brevity referred to as “the trial Court”) in O.S.No.104/2005 for recovery of a sum of Rs. 62,625/- with interest thereupon. 2. The summary of the case of the plaintiff in the trial Court was that, the husband of the defendant by name Sri M.P. Ganapathy, who was an employee of A.P.C.M.S, at Gonikoppa, was known to him and that the said M.P. Ganapathy for his urgent personal necessity, had borrowed a sum of Rs. 25,000/- from him during the month of May 2004. Towards the repayment of the said amount, he had issued a post dated cheque for the said amount dated 21.2.2005, drawn on Canara Bank, Gonikoppa Branch. Once again the said M.P. Ganapathy had borrowed another sum of Rs. 25,000/- from the plaintiff in the month of August 2004, towards which also, he had issued one more cheque drawn on Gonikoppa Rural Cooperative Bank, Gonikoppa Branch, for a sum of Rs. 25,000/-, dated 21.2.2005. According to the plaintiff, defendant had assured to arrange sufficient funds in his account on the date of presentation of the cheques. However, when the plaintiff presented the said cheques for realisation on 21.2.2005, both the cheques were returned unpaid with Banker’s endorsement “insufficient funds”. The defendant being the wife and legal representative of said borrower M.P. Ganapathy, who has succeeded to the property of deceased M.P. Ganapathy and also his assets and service benefits, is liable to pay the debt borrowed by her husband. In that connection, the plaintiff caused two legal notices dated 25.2.2005, calling upon her to clear the loans of her husband. However, the defendant in her reply notice dated 16.3.2005, denied her liability. Stating that the defendant being the wife of the borrower, who has succeeded to the property of the deceased as such she is liable, the plaintiff instituted a suit for recovery of the sum of Rs. 62,625/-, together with interest at the rate of 18% p.a. thereupon. 3. After service of summons, the defendant appeared through her counsel and has filed her written statement, wherein except admitting that she is the wife of late M.P. Ganapathy, who was an employee of A.P.C.M.S., Gonikoppa, had denied all other averments, including borrowal of a sum of Rs. 25,000/- + Rs. 3. After service of summons, the defendant appeared through her counsel and has filed her written statement, wherein except admitting that she is the wife of late M.P. Ganapathy, who was an employee of A.P.C.M.S., Gonikoppa, had denied all other averments, including borrowal of a sum of Rs. 25,000/- + Rs. 25,000/-, by her husband from the plaintiff. She specifically denied that her husband had borrowed a sum of Rs. 25,000/- each on two occasions and had issued two post dated cheques towards the repayment of the same. Though she admitted that she is the legal heir of her husband M.P. Ganapathy and had succeeded to his property, assets and service benefits, but categorically denied that she is liable to pay the suit claim towards the alleged borrowal said to have been made by her husband. She further stated that her husband M.P. Ganapathy died on 8.2.2005 under tragic circumstances and after knowing the death of her husband, the plaintiff fraudulently was trying to deceive her by taking advantage of her situation and her helplessness. 4. Based upon the pleadings of the parties, the trial Court framed the following issues: (1) Whether plaintiff proves that deceased M.P. Ganapathy had borrowed loan of Rs. 25,000/- for his legal necessity from him during the month of May 2004, for which he had issued a post dated cheque dated 21.2.2005 on Canara Bank, Gonikoppa Branch? (2) Whether the plaintiff further proves that deceased M.P. Ganapathy again borrowed a sum of Rs. 25,000/- for his legal necessity from him in the month of August 2004 and had issued post dated cheque dated 21.2.2005 on Gonikoppa Rural Cooperative Bank, Gonikoppa branch? (3) Whether plaintiff proves that defendant is liable to pay interest at 18% p.a. as agreed? (4) Whether plaintiff is entitled to the suit claim? (5) What decree or order? 5. In-support of his case, the plaintiff got himself examined as PW1 and got examined three more witnesses as PWs2 to 4. He has also got produced and marked the documents from Exs.P1 to P18. Defendant got herself examined as DW1 and no exhibits were marked from her side. 6. The trial Court after hearing both side and considering the material placed before it, answered issue Nos.1 and 2 in the affirmative and issue No.3 in the negative. He has also got produced and marked the documents from Exs.P1 to P18. Defendant got herself examined as DW1 and no exhibits were marked from her side. 6. The trial Court after hearing both side and considering the material placed before it, answered issue Nos.1 and 2 in the affirmative and issue No.3 in the negative. While answering issue No.4 partly in the affirmative, by its judgment and decree dated 21.4.2007, had decreed the suit of the plaintiff for a sum of Rs. 50,000/-, with interest at 6% p.a. 7. Being aggrieved by the judgment and decree of the trial Court, the defendant preferred an appeal before the Fast Track Court, Kodagu at Madikeri (henceforth for brevity referred to as “the First Appellate Court”) under Order XLI Rules 1 and 2 read with Section 96 of the Code of Civil Procedure, in R.A.No.21/2007. The plaintiff as a respondent appeared in the said appeal and contested the matter. 8. The First Appellate Court framed the following points for its consideration: (1) Whether the appellant/defendant has shown to the satisfaction of this Court that the Judgment and Decree passed by the trial Court is erroneous, not sustainable in law and on facts, liable to be set aside? (2) Whether the appellant/defendant has shown to the satisfaction of this Court that the interference of this Court in the Judgment and Decree passed by the trial Court is necessary? (3) What order? After hearing both side and perusing the materials placed before it, it answered both the points in negative and by its judgment and decree dated 22.8.2011, it dismissed the appeal and confirmed the judgment and decree passed by the trial Court. 9. It is against the said judgment and decree of the First Appellate Court, the defendant has preferred this appeal. 10. This Court while admitting this appeal, framed the following substantial question of law : “Whether in the absence of documentary evidence to establish that deceased M.P. Ganapathy had borrowed a loan of Rs. 25,000/- for legal necessity during the month of May, 2004 and further sum of Rs. 25,000/- for legal necessity in the month of August, 2004, following which, post dated cheques of Exs.P.1 and P.2 were issued, the courts below were justified in decreeing the suit?” 11. In response to the notice, the respondent is being represented by his Counsel. 12. 25,000/- for legal necessity during the month of May, 2004 and further sum of Rs. 25,000/- for legal necessity in the month of August, 2004, following which, post dated cheques of Exs.P.1 and P.2 were issued, the courts below were justified in decreeing the suit?” 11. In response to the notice, the respondent is being represented by his Counsel. 12. The lower Court records were called for and the same are placed before the Court. 13. Heard arguments of learned Counsel from both side. Perused the materials placed before this Court. 14. For the sake of convenience, the parties would be referred to henceforth with the ranks they were holding before the trial Court respectively. 15. Learned counsel for the appellant in his argument while reiterating the contention taken up by the appellant in her memorandum of appeal, has further agitated that the plaintiff was a stranger to the defendant, as such, the question of husband of the defendant approaching the plaintiff and availing the loan on two occasions does not arise. He also stated that the husband of the defendant was an employee and a salaried person and that he had no legal necessity to borrow loan, much less, a sum of Rs. 50,000/- from the plaintiff. Referring to the evidence of PW2, the Bank Manager, the learned counsel further submitted that the evidence of PW2 go to show that the husband of the defendant had availed loan from their bank on more than one occasion and had repaid the entire loan liability promptly. It was the contention of the learned counsel that the same being the case, had there really been any necessity of any fund to the husband of the defendant, he would have approached the same bank and availed the loan. On the contrary, he had no reason to approach the plaintiff for the loan. While referring to the evidence of PW3, learned counsel for the appellant further submitted that merely because the husband of the defendant is said to have misappropriated some amount from the A.P.C.M.S. Ltd., Gonikoppa, and that his wife has agreed to appropriate the monetary loss to the said organisation from out of the service benefits of her husband, itself would not lead to any inference that M.P. Ganapathi was in need of money. Learned counsel also submitted that the alleged reliance by the trial Court on the alleged fact of institution of Original Suit in O.S.No.461/2005 by a person against the husband of the defendant for recovery of money would not by itself leads any one to believe that M.P. Ganapathy was a regular borrower. Learned counsel further submitted that the trial Court, as well the First Appellate Court failed to take notice of the fact that said O.S.No.461/2005 ended in dismissal. Thus, there was no iota of evidence to believe that the defendant had any reason to avail any loan from the plaintiff. Learned counsel for the appellant further submitted that even in the absence of any admitted signature of the alleged borrower, the evidence of the defendant, who is none else than the wife of the deceased alleged borrower, is sufficient to arrive at a conclusion that cheques were not issued by her husband and the signatures found therein were not of him. However, both the Courts below did not appreciate the evidence in their proper perspective which resulted in decreeing the suit. 16. The learned counsel for the respondent/plaintiff in his argument submitted that the evidence of PW2 and PW3 make it very clear that the defendant even though was an employee in A.P.C.M.S. Ltd., Gonikoppa, was still in the habit of borrowing loan. Moreover, he has also misappropriated a huge amount, which has ultimately to be recovered from out of his service benefits. As such, he was in the habit of borrowing loan as evident. Learned counsel further submitted that the return of the cheques presented for clearance by the bank was not for the reason of any difference in the signature of the drawer of the instruments, but, it was for insufficiency of funds. As such, the contention of the defendant that the signatures found on the cheques in Ex.P1 and Ex.P2 were not of the husband of the defendant, is also not acceptable. Further stating that had really been the case of the defendant that the cheques were not issued by her husband and the signatures found on those two cheques were not that of her husband, nothing had prevented her to make any application seeking reference of the signatures to the expert’s opinion and also it was incumbent upon her to produce any admitted signature of her husband. The learned counsel submitted that the inaction on the part of the defendant on these aspects would further strengthen the case of the plaintiff. 17. It is not in dispute that one Sri M.P. Ganapanthy, who is said to be the drawer of the cheques at Exs.P1 and P2, is the husband of the defendant. It is also not in dispute that said M.P. Ganapathy was working in A.P.C.M.S. Ltd., Gonikoppa, as a Clerk. It is the case of the plaintiff that in May 2004, as well in August 2004, the said M.G. Ganapathy had availed a loan of Rs. 25,000/- each from him and that he had issued two postdated cheques, both bearing date of 21.2.2005, towards its repayment. It is not in dispute that those two cheques when presented for realisation, were returned with Banker’s shara “insufficient funds”. Considering all these aspects, both the lower Courts have concurrently held that the alleged loan transaction has been proved by the plaintiff and that the defendant had borrowed loan from the plaintiff and that the cheques were issued by him. It is in view of the above concurrent finding of both the Courts below, this Court while admitting the appeal, has framed the substantial question of law. The gist of which was not the question of alleged borrowal of loan amount by the husband of the defendant from the plaintiff, but the legal question as to whether to prove the alleged borrowal as a part of legal necessity, any documentary evidence is required. As such, what is required to be looked into in the said substantial question of law is that, in the absence of any documentary evidence to establish the alleged loan transaction, can the alleged loan transaction be suspected. 18. Admittedly, in this case, except two cheques at Exs.P1 and P2, there are no other documentary evidence to show that the husband of the defendant had borrowed a loan of Rs. 50,000/- in total, for his alleged legal necessities. Thus, Exs.P1 and P2 are the sole documents to prove the alleged loan transaction and also the alleged repayment in the form of issuance of cheques by M.P. Ganapathy. 50,000/- in total, for his alleged legal necessities. Thus, Exs.P1 and P2 are the sole documents to prove the alleged loan transaction and also the alleged repayment in the form of issuance of cheques by M.P. Ganapathy. Even with respect to the alleged loan transaction, it is the sole evidence of PW1 the plaintiff, is the basis and admittedly, the evidence of PWs.2 and 3 has got nothing to do with the alleged loan transaction by M.P. Ganapathy with the plaintiff. 19. In his evidence, PW1 has reiterated the plaint averments by stating that the husband of the defendant had borrowed loan from him on two occasions, once in May 2004 and another in August 2004. In that regard, he had issued two cheques, both dated 21.2.2005. When he (plaintiff) presented those two cheques for realiasation, both of them were dishonoured with the shara “insufficient funds”. No doubt, the defendant has stated in her written statement that the plaintiff was unknown either to her or to her husband, but PW1 in his cross-examination made by none else than from the defendant side, has specifically stated that husband of the defendant was known to him since 15 to 20 years. The said specific statement made by the plaintiff has not been denied or disputed by the defendant in the further cross-examination of the same witness. Added to this, in the cross-examination of the defendant, who was examined as DW1, a suggestion was made from the plaintiff side to the effect that the plaintiff and husband of the defendant were known to each other, DW1 has not denied the same as false, however, she has expressed her ignorance about the same. The said ignorance pleaded by DW1 in her cross-examination cannot be construed as denial of the said suggestion, that too, when a statement to the effect of alleged acquaintance was elicited in the cross-examination of PW1 by none else than the very same defendant. As such, the contention that the plaintiff and the husband of defendant were not known to each other, cannot be accepted. 20. As such, the contention that the plaintiff and the husband of defendant were not known to each other, cannot be accepted. 20. When it is established that the plaintiff and husband of the defendant were known to each other and when the plaintiff specifically has pleaded and produced the cheques at Exs.P1 and P2 stating that they were issued by none else than the husband of the defendant, the same cannot be totally disbelieved on its facial value, for the reason that, the said cheques when said to have been issued by the husband of the defendant during his life time, no effort was made by the drawer of the instrument to ensure that its payments are stopped. No specific instruction has been given by the drawer of the instrument or at least, by the defendant, requesting the banker to stop the payment upon those two cheques. When the cheque admittedly, which pertains to the account of the husband of the defendant, has reached in the hands of the plaintiff, then, it was for the drawer of the instrument or in case of his death, the legal representative of the drawer of the instrument, who, in the instant case, is the defendant, to establish that the cheque had reached the hands of the plaintiff not in a normal case, but under a suspicious circumstance. In that regard, there is no specific plea in the written statement of the defendant, except stating that the plaintiff has taken undue advantage of the defendant, who has lost her husband during that time. Therefore, the position of the plaintiff as a holder of the instrument and as a beneficiary of those two cheques, also cannot be suspected. 21. Admittedly, both the cheques when presented, they were returned by the respective banks with the shara “insufficient funds”. Had really the signature of the drawer of the instrument been tampered, forged or varied with, then, dishonour of the cheque would be necessarily and definitely with the reason of “difference in signature”. In the instant case, when the bankers themselves, who will be the custodian of specimen signatures of the account holder, have not found any variance in the signatures found on the instrument at Exs.P1 and P2, the contention of the defendant that the signatures at Exs.P1 and P2, which are at Exs.P1(a) and P2(a) were not of her husband, cannot be accepted. 22. 22. It is also for the reason that when the plaintiff as a bona fide holder of a negotiable instrument, has proved his possession of the instrument and how the said instrument is said to have been reached his hand, at the earliest point of time by issuing a legal notice, then, apart from reply to the said notice as per Exs.P9 and P10, the defendant also should have taken necessary steps in showing that those two cheques had reached the hands of the plaintiff not in an ordinary course. Nothing had prevented her to approach the police or any other appropriate authorities with any complaint or some such remedial applications and bringing to their knowledge that those two cheques which were in the possession of the plaintiff were not in a lawful manner and in a lawful way. She has not taken any steps in that regard. Thus, for long time, till she was served with the Court summons and was asked to file her written statement, she slept on the matter without taking any steps in ensuring with proper production of those two cheques and clearing of those two instruments by the bank. Even after filing written statement in the trial Court, if she was of firm belief and confident that the cheques were not issued by her husband to the plaintiff and that the signatures in those two cheques were not of her husband, apart from taking a mere pleading in her written statement, she could have requested the Court for getting an expert’s opinion on the said instrument, which also she has not done. No doubt, under Section 47 of the Indian Evidence Act, 1872, the statement of a person who has acquainted with the handwriting or signature of a person known to him would be a relevant factor, but that statement can only be a relevant fact, but, it cannot be equivalent to expert’s opinion under all circumstances. In the instant case, even though it can be taken that the defendant, as a wife of the alleged borrower, though was acquainted with the handwriting of her husband, so also his signature, still she being the defendant in the suit, was an interested party. More than that, as observed above, she had every opportunity to get the disputed signature with the admitted signature referred to for the expert’s opinion. More than that, as observed above, she had every opportunity to get the disputed signature with the admitted signature referred to for the expert’s opinion. Ironically, DW1 in her evidence itself has stated that she does not possess any document bearing the admitted signature of her husband. So, that being the case, except taking a contention in that regard, she had not put any effort either by producing the admitted signature of her husband or getting the matter referred to for expert’s opinion. As such, the recourse has to be taken to the endorsement given by the bank at Exs.P3 to P6 which only mentions about the insufficiency of funds in the account of the drawer of the instrument, but not variation in his signature. As such, the contention of the defendant that the signature of the deceased M.P. Ganapathy are not the one at Exs.P1(a) and P2(a), is also not accepted. It is the say of the PW1 that deceased M.P. Ganapathy had borrowed a loan of Rs. 50,000/- towards his personal requirement and necessities. However, except his statement in that regard, there are no material or document to prove the purpose of the loan taken by the said M.P. Ganapathy. However, the plaintiff got examined PW2 – Mohan, who is said to be the Manager of Kodagu K.D.C.C. Bank, at Gonikoppa and one Sri K.P. Charamana, as PW3, who is the Secretary of A.P.C.M.S., Ltd., Gonikoppa. PW2 in his evidence has stated that M.P. Ganapathy was an account holder in their bank and that he had availed personal loan on two occasions as per Exs.P11 and P12 and that he had cleared both the loans as could be seen from Exs.P13 and P14, which are the receipts. HP.PW3 has stated that in their A.P.C.M.S. Ltd., deceased M.P. Ganapathy was working as a Clerk and he died on 8.2.2005. After his death, when they verified the Books of Accounts and the Ledger, which were in his custody, it revealed that he had misappropriated a sum of Rs. 2,15,160.50/-. However, with the consent of the wife of the said M.P. Ganapathy, who is defendant herein, the said amount was recovered from the service benefits of the said M.P. Ganapathy. After his death, when they verified the Books of Accounts and the Ledger, which were in his custody, it revealed that he had misappropriated a sum of Rs. 2,15,160.50/-. However, with the consent of the wife of the said M.P. Ganapathy, who is defendant herein, the said amount was recovered from the service benefits of the said M.P. Ganapathy. No doubt, neither of the evidence of PW2 and PW3 nor the documents at Exs.P11 to P16, have no direct bearing upon the alleged loan transaction, which is the subject matter of the suit, but, they could lead to an inference that the deceased was in the habit of availing loan from the Bank and that he was also found fault with misappropriation of a large amount of not less than Rs. 2,15,160.50. Thus, it makes it clear that said M.P. Gapanathy was not contented with the salary what he was getting as a Clerk in A.P.C.M.S. Ltd., Gonikoppa. To meet his requirement, he had found out the way of borrowing a loan from the bank on more than one occasion and also alleged misappropriation of funds belonging to his employer. So, merely because he has cleared his two earlier loans with K.D.C.C. Bank, Kodagu, by that itself, it cannot be concluded that had really said M.P.Ganapathy was in genuine requirement of loan, he should have definitely approached the same bank and borrowed the loan once again. It is also for the reason that if the said logic that in case of his requirement of money, he should have approached the same bank is acceptable, then, the fact that A.P.C.M.S. Ltd., noticed shortage of Rs. 2,15,160.50., in the work of deceased M.P.Ganapathy and recovering it from his service benefits would not have been arisen. Therefore, even after considering that the alleged Original Suit No.461/2005 filed against the very same M.P.Ganapathy in the Court of Munisff, came to be dismissed, still the evidence of PW2 and PW3 read in the light of Exs.P11 to P16 go to show that the deceased M.P.Ganapathy was in the requirement of money from his known source of income. It is in this background, the evidence of PW1 that said M.P.Ganapathy who was known to him from 15 to 20 years had approached him and borrowed on two occasions a loan of Rs. 25,000/- each for his requirements is to be believed. It is in this background, the evidence of PW1 that said M.P.Ganapathy who was known to him from 15 to 20 years had approached him and borrowed on two occasions a loan of Rs. 25,000/- each for his requirements is to be believed. Both the Courts below have appreciated the evidence led before it in their proper perspective and have arrived at a concurrent finding that the deceased M.P.Ganapathy had borrowed the said loan. As such, even in the absence of any documentary evidence to establish that deceased M.P.Ganapathy had borrowed a sum of Rs. 25,000/- each on two occasions, the Courts below have justified in decreeing the suit based on the evidence available. Thus, I do not find any infirmity or perversity in the said finding given by both the Courts below. Accordingly, I answer the substantial question of law in the affirmative and proceed to pass the following ORDER The Regular Second Appeal is dismissed. The judgment and decree dated 22.8.2011, passed by the Fast Track Court, Kodagu at Madikere, in R.A.No.21/2007, is confirmed.