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2023 DIGILAW 3147 (MAD)

Karunanithi v. C. J. Rasal

2023-09-22

C.KUMARAPPAN

body2023
JUDGMENT : (C. Kumarappan, J.) (Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree, dated 28.01.2016, made in A.S.No.40 of 2015, on the file of the VI Additional District Court, Madurai, reversing the judgment and decree, dated 01.10.2013, made in O.S.No.253 of 2010, on the file of the II Additional Sub Court, Madurai.) The appellant herein is the respondent/defendant and the respondent herein is the appellant/ plaintiff before the Court below. 2. For the sake of convenience, the parties are referred to as per their rank before the trial Court. 3. The brief averments of the plaint is as follows: The plaintiff submits that the defendant borrowed a sum of Rs.2,00,000/- by executing a pro-note, dated 05.11.2008. As per the pro-note, the defendant agreed to return the borrowed amount with interest at the rate of 12% per annum. In pursuance there of, the defendant has also executed a memorandum of deposit of title deed with xerox copy of the partition deed, which stands in the name of the defendant. It is the submission of the plaintiff that, while executing a memorandum of deposit of title deed, on 06.11.2008, the defendant agreed to deliver the original partition deed. However, he has failed to submit the same. Since the defendant evaded to repay the borrowed amount, the plaintiff has issued notice on 07.04.2010, demanding the defendant, to pay the principal as well as the interest. For which, the defendant sent a reply with untenable contention. Hence, the plaintiff has come forward with the suit for recovery of Rs.2,35,333/- with interest at the rate of 24% from the date of plaint till the date of realisation. The plaintiff has also filed a reply statement. Wherein, he put forth his wherewithal to give a loan of Rs.2,00,000/- (Rupees Two Lakhs only) to the defendant. 4. The brief averments of the written statement is as follows:- The said suit was resisted by the defendant by disputing the very borrowal of Rs.2,00,000/- and execution of pro-note, dated 05.11.2008, so also the alleged memorandum of deposit of title deed dated 06.11.2008. According to the defendant, the above documents are the rank one forgery of the plaintiff. 4. The brief averments of the written statement is as follows:- The said suit was resisted by the defendant by disputing the very borrowal of Rs.2,00,000/- and execution of pro-note, dated 05.11.2008, so also the alleged memorandum of deposit of title deed dated 06.11.2008. According to the defendant, the above documents are the rank one forgery of the plaintiff. This defendant submits that there was no necessity for him to borrow the amount as he has been doing business and that he was having sufficient resource at the relevant point of time. The defendant has also undertaken to file appropriate application to send for the pro-note for handwriting expert. Hence, the defendant prayed to dismiss the suit. 5. The defendant in his additional written statement has stated that he has already filed an application to compare the signature of the defendant with the admitted signature. 6. Before the trial Court, on the side of the plaintiff, 2 witnesses were examined as P.W.1 and P.W.2, and 8 documents were marked as Exs.A1 to A8. On the side of the defendant, 2 witnesses were examined as D.W.1 and D.W.2 and 2 documents were marked as Exs.B1 and Ex.B2. 7. After considering either side submission and based on the evidence and materials on record, the trial Court has found that the plaintiff has not proved his wherewithal to pay the loan amount, and has also relied upon the evidence of the handwriting expert and has dismissed the suit. 8. Aggrieved with the said findings of the trial Court, the plaintiff has preferred an appeal before the First Appellate Court. In which, the first Appellate Court had reversed the finding of the trial Court, on the basis of the presumption under Sections 20 and 118 of the Negotiable Instruments Act. The first Appellate Court was of the view that the admitted signature of the defendant was not accepted by the plaintiff. Therefore, the first Appellate Court disbelieved the report of the handwriting expert. The first Appellate Court has also believed the evidence of the plaintiff and has ultimately decreed the suit by reversing the decree and judgment passed by the trial Court. 9. Aggrieved with the finding of the first Appellate Court, the defendant has filed this Second Appeal. 10. Therefore, the first Appellate Court disbelieved the report of the handwriting expert. The first Appellate Court has also believed the evidence of the plaintiff and has ultimately decreed the suit by reversing the decree and judgment passed by the trial Court. 9. Aggrieved with the finding of the first Appellate Court, the defendant has filed this Second Appeal. 10. This Court, by order dated 22.04.2022, has admitted the second appeal on the following substantial questions of law:- “(A) Whether the Lower Appellate Court is right in holding that the passing of consideration is proved even though there is a doubt with regard to the existence and execution of pronote Ex.A1 and the document of security Ex.A2? (B) Whether there is any prohibition for the Court to compare the signatures under Section 73 of the Evidence Act apart from the fact that the Document Expert, opinioned that the signatures found in Ex.A1 and Ex.A2 are forged?” 11. The learned counsel for the defendant/ appellant would submit that, the very finding of the first Appellate Court that the admitted signature of the defendant was not admitted by the plaintiff is contrary to the fact. It is the further submission of the learned counsel for the defendant that contrary to the documentary evidence, the First Appellate Court has given undue weightage to the evidence of the plaintiff and has arrived at wrong conclusion. The learned counsel for the defendant would also submit that when the scribe has stated that, there are no entry in respect of the interest in the pro-note and that the very pro-note was executed in the green paper, the fact remains is the pro-note is written in printed format and that there is a reference about rate of interest. Therefore, would submit that the above factual position would exemplify forgery committed by the plaintiff. It is the submission of the learned counsel for the defendant that the defendant has established his wherewithal and had proved before the Court that no occasion arisen for him to borrow the amount. In spite of the same, the first Appellate Court has erroneously reversed the finding, which is contrary to the settled legal principles. The learned counsel for the defendant has also relied upon the judgment of this Court reported in 2020-1-CTC-515 (B.Rajeswari V. B.Vinayagam). 12. In spite of the same, the first Appellate Court has erroneously reversed the finding, which is contrary to the settled legal principles. The learned counsel for the defendant has also relied upon the judgment of this Court reported in 2020-1-CTC-515 (B.Rajeswari V. B.Vinayagam). 12. Per contra, the learned counsel for the plaintiff/ respondent would submit that the very finding of the trial Court based upon the handwriting expert is erroneous as there was no admitted signature by the plaintiff. It is the further submission of the learned counsel for the plaintiff that the admitted signature was never shown to the plaintiff and the plaintiff has never given consent for those admitted signature. It is the further submission of the plaintiff that the plaintiff has established his financial capacity to advance loan to the defendant. Therefore, the learned counsel for the plaintiff would submit that the very order passed by the first Appellate Court is liable to be confirmed. In support of his contention, he also relied upon the judgment of the High Court of Punjab and Haryana reported in 2019-4-RCR(Crl)-536 (Mohit Bansal V. Ankit Polywave Industry) and also relied upon another judgment of the High Court of Calcutta reported in AIR-2006-Calcutta-109 (Sunil Chowdhury V. Arup Kumar Ghosh). It is also the submission of the learned counsel for the plaintiff that the presumption under Section 118 of N.I.Act is in favour of the plaintiff. Therefore, contended that the findings of the First Appellate Court by following the Sections 20 and 118 of the N.I. Act is liable to be sustained. 13. I have given my anxious consideration to the either side submissions and also perused the materials on record. 14. The first Appellate Court by referring Section 20 and 118 of N.I. Act, has ignored the valid admission made by P.W.2, who is the scribe of Ex.A1, promissory note. The witness P.W.2, during his cross examination has stated that there is no reference in the promissory note as to the rate of interest. But, contrary to the same, in Ex.A1-pro-note, there is a reference as to the rate of interest. This is one of the factor to flung a serious doubt as to the presence of the scribe at the time of execution of alleged promissory note. But, contrary to the same, in Ex.A1-pro-note, there is a reference as to the rate of interest. This is one of the factor to flung a serious doubt as to the presence of the scribe at the time of execution of alleged promissory note. If really the P.W.2 was scribe of Ex.A1- pro-note, he would have definitely stated as to the basic tenets of the clauses in the pro-note. 15. But, the first Appellate Court has construed the said admission as a slip short evidence, and has rest its finding based on Sections 20 and 118 of N.I.Act. If we closely read Section 20 of the N.I. Act, it deals about the inchoate stamped instrument. For ready reference, this Court deem it appropriate to extract the same:- 20. Inchoate stamped instrument:- Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as then case may be, upon it a negotiable instrument, instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount, provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. (Emphasis supplied by this Court) 16. The plain reading of the said Section would vindicate that, if the signature of the party proved, then the blanks of the document can be filled. But, in our case, the very signature has been consistently denied by the defendant. It is also the submission that Ex.B1- pro-note is a rank one forgery. 17. It is also relevant to see Section 118 of N.I. Act. Section 118 of the N.I. Act deals about the special Rule of evidence in respect of negotiable instruments and the presumption. In N.I. Act, Section 4 defined promissory note. Where it states about the signature of the maker of the promissory note. 17. It is also relevant to see Section 118 of N.I. Act. Section 118 of the N.I. Act deals about the special Rule of evidence in respect of negotiable instruments and the presumption. In N.I. Act, Section 4 defined promissory note. Where it states about the signature of the maker of the promissory note. Therefore, if the signature of the maker is proved, then as observed by the first Appellate Court, there will be a presumption as to the consideration, date, demand, stamp etc. Further under Section 20 of the N.I.Act, the holder of the pro-note will have authority to complete the document. Therefore, to apply Sections 20 and 118 of N.I.Act, the primordial requirement is the proof towards the signature of the maker. Therefore, the Court must first find out whether the signature found in the promissory note is that of the defendant. 18. In this regard, the learned counsel for the respondent would invite the attention of this Court in respect of Ex.B1 and B2 qua the reports from the handwriting expert; and would contend that according to the handwriting expert, the signature found in Ex.B1- promissory note is not that of the defendant. However, the learned counsel for the plaintiff would submit that the very reliance of handwriting expert's report is highly unsafe. In this regard, the learned counsel for the plaintiff would draw the attention of this Court about paragraph No.21 of the first Appellate Court judgment, Wherein, the first Appellate Court found that the alleged sample signature of the defendant, which was subscribed in the rental receipts, has not been accepted by the plaintiff. Therefore, the report given by the handwriting expert will have no sanctity. 19. At this juncture, this Court would like to rely upon the application filed by the defendant, before the trial Court for sending document for comparing the handwriting. The said application has been filed under Sections 45 and 73 of the Indian Evidence Act and the same has taken on file in I.A.No.143 of 2011. On perusal of the said petition, the documents for the sample signature was enclosed. The said petition was posted to 04.02.2011 for notice of hearing. On 04.02.2011, the following order has been made by the trial Court:- “Notice given. No counter endorsed by the respondent. Hence, Advocate Mr.K.Marimuthu, J/o.Vallinayagam is appointed as Commissioner. On perusal of the said petition, the documents for the sample signature was enclosed. The said petition was posted to 04.02.2011 for notice of hearing. On 04.02.2011, the following order has been made by the trial Court:- “Notice given. No counter endorsed by the respondent. Hence, Advocate Mr.K.Marimuthu, J/o.Vallinayagam is appointed as Commissioner. His remuneration is fixed at Rs.2,000/- which is to be paid by the petitioner directly. The Commissioner is directed to take over the original documents in the Court, to the Forensic Science Department, Madurai for expert opinion of signature of defendant - Kanunanithi and to get the expert opinion. The sherisdar of this Court is directed to hand over the original documents containing the disputed signature in Ex.A1 and the admitted signature in the rent receipts in a sealed cover, after retaining the xerox copies in the bundle and after obtaining two proper acknowledgment from the Commissioner. The Assistant Director, Forensic Science Department, Madurai, is directed to compare the signatures and send the expert opinion by 04.03.2011." 20. Therefore, only after showing the sample signature of the defendant to the plaintiff, and only after getting the concurrence of the plaintiff, the sample signature was elevated to the status of admitted signature and has been forwarded to the handwriting expert, through the Advocate Commissioner. Therefore, the defence of the plaintiff that he has not given consent to sample signature is contrary to factual position. In the Second Appeal stage, the plaintiff can't take a different stand that he has not given any concurrence to the sample signature. More pertinently, not even any suggestions were put forth to the expert as to his challenge towards the admitted signature. Therefore, this Court is of the view that, the very submission made by the learned counsel for the plaintiff that, the plaintiff has not given any concurrence to the sample signature is unfounded. Therefore, the very finding recorded by the first Appellate Court that the plaintiff did not give concurrence to the sample signature of the defendant is perverse and the said finding of fact is liable to be reversed. 21. Therefore, this Court is of the view that the very reason assigned by the first Appellate Court to ignore the expert report is erroneous and perverse. 22. 21. Therefore, this Court is of the view that the very reason assigned by the first Appellate Court to ignore the expert report is erroneous and perverse. 22. At this juncture, the learned counsel for the plaintiff relied upon the judgment reported in AIR-2006-Calcutta-109 (Sunil Chowdhury V. Arup Kumar Ghosh) and would submit that the admitted document must be to the satisfaction of the person, who asserts that the disputed signature could be genuine. In our case, as found herein above, as per the endorsement made in I.A.No.140 of 2011 in O.S.No.253 of 2010, the plaintiff has expressed his concurrence in respect of the admitted signature by endorsing no counter to the Section 45 of Evidence Act application. Therefore, the above ruling is not applicable to the present case. 23. The learned counsel for the plaintiff would also further submit that the defendant has given only interim reply to their detail demand notice. Therefore, prayed to draw an adverse inference against the defendant. However, while perusing the plaint, the plaintiff himself has not raised such plea. Wherein, in paragraph No.7 of the plaint, the plaintiff contended that the defendant has sent a reply with untenable false pleas. Therefore, this Court is of the view that the ruling reported in 1993-2- MLJ-228 (The Superintending Engineer V. The Green Lands New India Construction Company) is not applicable to the present case. 24. At this juncture, the learned counsel for the defendant/ appellant would invite the attention of this Court in respect of the judgment of this Court reported in 2020-1-CTC-515 (B.Rajeswari V. B.Vinayagam). The relevant portion of the judgment is as follows: “17. The Question of Law No.2 The lower Appellate Court has ignored the expert opinion by citing certain judgments wherein it has been held that expert opinion is very weak evidence unless it is proved by examination of the expert. The lower Appellate Court had totally overlooked the fact that the expert has been examined as D.W.3. It has not considered the evidence of the expert and reached a conclusion that the report of the expert is not reliable. No doubt the expert's opinion is not final and it is for the Court to accept or reject the expert opinion. While rejecting the opinion of the expert, that too an expert who has deposed in Court, the Court must give cogent and convincing reasons for such rejection. No doubt the expert's opinion is not final and it is for the Court to accept or reject the expert opinion. While rejecting the opinion of the expert, that too an expert who has deposed in Court, the Court must give cogent and convincing reasons for such rejection. The lower Appellate Court has not even attempted to examine the evidence of D.W.3 in order to find out whether his report could be relied upon or not. The opinion of the expert was simply brushed aside. I find that the procedure adopted by the lower Appellate Court is totally unconvincing. Hence, Questions of law No.2 is also answered in favour of the appellant to the effect of the lower Appellate Court was not right in ignoring the opinion of the expert.” (Emphasis supplied by this Court) 25. The learned Single Judge of this Court has held that when a report of the handwriting expert is rejected by the Court, then the Court should give a cogent reason. While perusing the order of the First Appellate Court, the only reason assigned by the first Appellate Court is that the sample signature was not to the satisfaction of the plaintiff. However, as found elsewhere in the order, such finding is contrary to the factual position. Therefore this Court is of the view that the finding of the Court below ignoring the report of the handwriting expert is perverse and liable to be interfered with. 26. More interestingly, the first Appellate Court has gone to an extent to say that, the very exercise of power under Section 73 of the Evidence Act by the trial Court in the place of availability of option under Section 45 of the Indian Evidence Act is erroneous. But, at the same breath, has disbelieved the expert report, without assigning any cogent reason. In our case, the expert gave opinion that the signature found in the Ex.A1- pro-note, is not that of the person, who signed the admitted signature. In other words, the expert found that the signature found in the Ex.A1- pronote is not that of the defendant. In such background of fact, this Court is of the view that the admission made by the scribe in respect of absence of reference about the interest assumes significance. In other words, the expert found that the signature found in the Ex.A1- pronote is not that of the defendant. In such background of fact, this Court is of the view that the admission made by the scribe in respect of absence of reference about the interest assumes significance. Therefore, this Court hold that, on the basis of the experts opinion, coupled with the admissions made by P.W.2, about some discrepancy, this Court is of the indubitable view that the signature found in Ex.A1-promissory note is not that of the defendant. Therefore, no occasion arisen to seek the aid under Sections 20 and 118 of N.I. Act. The net result would be the Ex.A1 – pro-note has not been executed by the defendant and the same is the out come of forgery. Hence, the suit is liable to be dismissed. Therefore, the substantial question of law is answered in favour of the appellant. 27. In the result, the instant Second Appeal stands allowed by setting aside the decree and judgment of the First Appellate Court, by restoring the order of the trial Court. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.