JUDGEMENT AND ORDER : SUSMITA PHUKAN KHAUND, J. 1. Nilu Gogoi is the appellant who is aggrieved by the judgment and decree dated 09.01.2024 and 19.01.2024, passed by the learned Civil Judge (Sr. Division), Lakhimpur, North Lakhimpur in Money Appeal No. 01/2021, upholding the judgment and decree dated 09.02.2021 and 19.02.2021, passed by the learned Civil Judge (Jr. Division No. 1), Lakhimpur, North Lakhimpur in Money suit No. 06/2021.The respondent in this case is Smt. Lakhima Dutta Saikia. 2. It is contended on behalf of the appellant that the first Appellate Court has committed gross error and irregularity in deciding the appeal against the appellant in a manner which is not sustainable in the eye of law. Both the Appellate Court of First instance and the Trial Court did not properly scrutinize the case record and failed to examine the issue relating to the alleged borrowing of money by the appellant and relating to the execution of the hand note as well as the deposition of the official witness i.e., witness No. 2 for the defendant. 3. It is further submitted that the Appellate Court as well as the Trial Court have clearly discussed about the disputed amount i.e., Rs. 3 lacs and Rs. 3,55,450/-, being written subsequently on the basis of forensic examination report (Exhibit-A), as well as on the basis of the evidence of official witness i.e., witness No. 2 for the defendant. However, the learned Appellate Court of First instance as well as the learned Trial Court has erred while shifting the burden of proving the disputed amount on the defendant instead of the plaintiff which is bad in law. Both the Courts were silent about the purpose of loan. The Courts have failed to appreciate the evidence of DW1 that the son of the appellant/DW1 cleared his MBBS in the year 2013, which would answer the issue No. 2 relating to the borrowing of money for the purpose of education of the appellant’s son. 4. Learned counsel for the Appellant has assailed the decision on the failure of the First Appellate Court to observe that the issue No. 3 was struck out by the order dated 26.11.2020 in M.S. No. 06/2021 which was bad in law. 4. Learned counsel for the Appellant has assailed the decision on the failure of the First Appellate Court to observe that the issue No. 3 was struck out by the order dated 26.11.2020 in M.S. No. 06/2021 which was bad in law. It is contended that whether the alleged agreement between the appellant and the respondent is a valid document as a scrutiny of the document reveals manipulation of Exhibit-1 and its subsequent development i.e., findings of the handwriting expert, of Central Forensic Science Laboratory, Guwahati, Assam. No scope was accorded to analyse on the findings of any handwriting expert. 5. The learned Trial Court ought to have framed an issue on the manipulated amount added later, which would have had a bearing on the case. The Courts have also failed to appreciate that all the witnesses were interested witnesses. The cross examination of PW2 who is the writer of Exhibit-1 i.e., the hand note was also not taken into consideration. It is further contended that one who seeks equity and approaches for justice should approach with clean hands but the respondent has approached this Court with a manipulated document and thus the learned Trial Court completely erred while deciding the issue No. 4. The learned Trial Court failed to appreciate that the respondent/plaintiff has failed to prove the financial capacity with regard to lending of cash. On cross examination relating to proof of income with regard to submission of Income Tax Return for the year 2014, the respondent clearly stated that the amount given i.e., Rs. 7,55,450/- was not shown in the Income Tax Return, which the defendant has substantiated through her defense. As it is a case of providing loans in the form of cash, it was required to be reflected in the income tax return under Section 269SS of the INCOME TAX ACT , 1961, as a loan of more than Rs. 20,000/- cannot be advanced, except by way of an account payee cheque/account payee bank draft/use of electronic clearing system through a bank account and as such, advancing cash as loan is punishable under the INCOME TAX ACT , 1961 (The Act of 1961). 6. Per contra, learned counsel for the respondent has laid stress in his argument that both the plaintiff and defendant worked as ANM nurse in the same hospital at Boginadi. The plaintiff has retired on superannuation. 6. Per contra, learned counsel for the respondent has laid stress in his argument that both the plaintiff and defendant worked as ANM nurse in the same hospital at Boginadi. The plaintiff has retired on superannuation. They were close friends and trusted each other. The defendant had to borrow money to make both ends meet after sending her son for the MBBS course. She informed the plaintiff about her financial constraints and sought her help to educate her son. Therefore, on 04.07.2014 as the defendant was in urgent need of money, the plaintiff agreed to pay cash to the tune of Rs. 1 lac as the defendant came to her house and requested her for financial assistance. The plaintiff had kept some money to construct her house and this money, she handed over to the defendant out of sympathy. On the same day, an agreement was executed in presence of witnesses and an amount of Rs. 3 lacs was taken on 02.02.2014, and another amount of Rs. 3,55,450/- was taken by the defendant on 04.07.2014 from the plaintiff. The defendant assured to return the money with a written assurance in the form of agreement which was executed after the defendant had taken the money on credit. The agreement was marked as Exhibit-1. 7. Meanwhile, the defendant failed to return the money despite several requests from the plaintiff. The plaintiff had sent her children for higher education and they were staying in a hostel and she was in need of money but the defendant never returned the money borrowed from the plaintiff. Then, the plaintiff on 12.05.2016 demanded the money through an advocate's notice. 8. The defendant was however taken aback by the plaintiff's notice and denied of having borrowed money from the plaintiff in a false and fabricated manner and without substantiating evidence and with malafide. The defendant on the contrary replied that she had borrowed only Rs. 2,10,000/-, Rs. 60,000/- and Rs.1,50,000/- on different dates from the plaintiff. This impelled the plaintiff to file the Money Suit being M.S. Case No. 06/2021. 9. Heard Ms. S. G. Baruah, learned counsel for the appellant and Mr. B. Haldar, learned counsel for the respondents. Both the parties will be hereinafter referred according to their ranks in the original title suit. The defendant is the appellant in this case. Findings of the learned Trial Court:- 10. 9. Heard Ms. S. G. Baruah, learned counsel for the appellant and Mr. B. Haldar, learned counsel for the respondents. Both the parties will be hereinafter referred according to their ranks in the original title suit. The defendant is the appellant in this case. Findings of the learned Trial Court:- 10. The learned Trial Court framed the following issues:- (i) Whether there is cause of action for the suit? (ii) Whether the defendant borrowed an amount of Rs 3.00.000/- (Three Lakh) on 02 02 2014. Rs 3.55 450/(Three Lakh Fifty Five Thousand and Four Hundred Fifty) on 11.05.2014 and Rs 1.00.000/ (One Hundred) on 04 07 2014 from the plaintiff for education of her son? (iii) Whether the alleged agreement between the plaintiff and the defendant is a valid agreement in the eyes of law? (Issue No.3 has been struck out vide order dated 26.11.2020? (iv) Whether the plaintiff is entitled to the relief as prayed for? 11. On issue No. 2, whether the defendant borrowed an amount of Rs. 3 lacs on 02.02.2014 and Rs. 3,55,450/- on 11.05.2014 and Rs. 1 lac on 04.07.2014, from the plaintiff for education of her son, it was held by the learned Trial Court that the defendant had indeed borrowed the aforementioned amount. The learned Trial Court on an in-depth discussion held that (a) the plaintiff had exhibited one hand note wherein the fact of the defendant borrowing Rs. 1 lac has been mentioned in the first paragraph, (b) the fact of borrowing Rs 3 lac and Rs. 3,55,450/- on 02.02.2014 and 11.05.2014, respectively have also been mentioned in the second paragraph, subsequently. 12. The plaintiff in her evidence as PW1 stated that on 04.07.2014, as the defendant was in need of money, she approached the plaintiff and requested her for a loan. A hand note was prepared wherein the defendant undertook to return Rs. 3 lacs and Rs. 3,55,450/- and also Rs. 1 lac which the plaintiff had handed down to the defendant in cash. The hand note was executed on 04.07.2014. However, the defendant stated that she had borrowed only Rs. 1 lac from the plaintiff on 04.07.2014 and she never borrowed Rs. 3 lacs or Rs. 3,55,450/- on 02.02.2014 or 11.05.2014 respectively from the plaintiff. 3,55,450/- and also Rs. 1 lac which the plaintiff had handed down to the defendant in cash. The hand note was executed on 04.07.2014. However, the defendant stated that she had borrowed only Rs. 1 lac from the plaintiff on 04.07.2014 and she never borrowed Rs. 3 lacs or Rs. 3,55,450/- on 02.02.2014 or 11.05.2014 respectively from the plaintiff. The plaintiff was then impelled to send the hand note, Exhibit-1 to the Directorate of Forensic Science (DFS for short) for examination and from the report received from the DFS, the hand note clearly reveals that the defendant had borrowed the amount as claimed by the plaintiff. 13. A witness, PW2 who was the writer of the said hand note, Shri Ratul Saikia admitted that the defendant had also borrowed Rs. 3 lacs and Rs. 3,55,450/- and so he has mentioned about the money borrowed by the defendant on the hand note later on. 14. The evidence of PW1 and PW2 was also substantiated by the evidence of two witnesses PW3, Riju Saikia and PW4, Chenimai Saikia. It was also held by the learned Trial Court that the fact of borrowing has been sufficiently proved by the plaintiff. The defendant has also admitted that the signature on the hand note is her signature. 15. However, the learned Trial Court has not accepted the contention of the defendant that the later part of the hand note was a manipulation by the plaintiff, as the defendant failed to prove that she did not borrow Rs. 3 lacs and Rs. 3,55,450/- on 02.02.2014 as well as 11.05.2015. Findings of the learned Appellate Court:- 16. Against the judgment and decree of the Trial Court, the defendant preferred an appeal which was dismissed by the learned Appellate Court of First instance. 17. A point of determination was framed whether the judgment and order dated 09.02.2021, passed by the learned Civil Judge (Jr. Division No. 1), Lakhimpur required any interference. 18. It was held by the learned First Appellate Court that:- " the defendant had averred that the Exhibit-1 had been manipulated by the plaintiff. 17. A point of determination was framed whether the judgment and order dated 09.02.2021, passed by the learned Civil Judge (Jr. Division No. 1), Lakhimpur required any interference. 18. It was held by the learned First Appellate Court that:- " the defendant had averred that the Exhibit-1 had been manipulated by the plaintiff. However, after Exhibit-1 was sent for forensic examination, the expert had submitted a report that the writings from the word 'ARU' of the eleventh line to the word reading as 'DILO' of the last line have been subsequently written after the execution of the writings from the first word reading as 'MAI' of the first line to the word reading as 'DILO' of the eleventh line." 19. From the report of the expert, it was held by the learned Appellate Court that the second query pertaining to borrowing of Rs. 3 lacs on 02.02.2014 and Rs. 3,55,450/- on 11.05.2014 were subsequently written on Exhibit-1. This fact has been proved by PW2 who was the writer of Exhibit-1. The execution of Exhibit-1 has also been proved by PW3 and PW4 who categorically deposed that they were both present when defendant had borrowed Rs. 3 lacs from the plaintiff on 02.02.2014 and Rs. 3,55,450/- on 11.05.2014 and Rs. 1 lac on 04.07.2014. Although, PW3 deposed in her cross-examination that no hand note or agreement was prepared between the parties on 02.02.2014 or on 11.05.2014, nothing material was extracted from the cross-examination of the PWs which would cast a doubt on the veracity of the testimonies of PW3 and PW4 pertaining to their version of being present at the time when the defendant had borrowed Rs. 3 lacs from the plaintiff on 02.02.2014 and Rs. 3,55,450/- on 11.05.2014 and Rs. 1 lac on 04.07.2014. 20. The learned Appellate Court's order was in concurrence with the order of the learned Trial Court. It was observed by the Learned Appellate Court that the testimonies of PWs had remained unshaken pertaining to the borrowing and lending of the aforementioned amount and has held that the plaintiff was able to discharge her burden in support of her stance and the defendant failed to impeach the testimonies of PWs 2 and 3. Now, could she bring any evidence on record or lead evidence to rebut the evidence of the witnesses. Decision:- 21. Now, could she bring any evidence on record or lead evidence to rebut the evidence of the witnesses. Decision:- 21. On the appeal by the defendant, the following substantial questions of law has been formulated by this Court as follows:- “ (i) Whether the First Appellate Court erred in law in affirming the judgment of the learned Trial Court in considering the hand note (Ext.-1) to be a basis of the relief granted in view of the FSL report, Ext.-A as well as the evidence of the official witness? (ii) Whether in view of the anomaly in respect of Ext.-1, the decree could have been granted in favour of the plaintiff? 22. Stressing on Exhibit-1 and Exhibit-A, this Court has to refer to the evidence as substantial questions of law were formulated on the documentary evidence, Exhibit-1 and Exhibit-A. No question of law has been formulated on issue No. 3, on which the appellant has laid sufficient emphasis. 23. It is further submitted on behalf of the respondent that issue No. 3 was struck off, and at that time, it was not disputed in any court and now, at this later stage, the appellant has raised the issue No. 3, which is as follows:- “ Whether the alleged agreement between the plaintiff and the defendant is a valid agreement in the eyes of law? (Issue No.3 has been struck out vide order dated 26.11.2020?” 24. Even if the issue No. 3 is decided in the affirmative, yet the appellant cannot dispel the evidence and pleadings and the other issues decided in favour of the respondent. 25. It is held that the First Appellate Court has correctly affirmed the judgment of the learned Trial Court. The hand-note marked as Exhibit-1 has been proved by the writer of the document and substantiated by the evidence of two other witnesses. The documentary evidence has been proved by oral evidence. The Trial Court did not examine any official witness to prove the Exhibit-A nor did the Appellate Court found it necessary to examine any official witness to prove Exhibit-A. 26. It was concurrently held by both the Trial Court and the Appellate Court of First instance that the final report of the expert clearly reveals that the document, Exhibit-A was written by the same person. 27. It was concurrently held by both the Trial Court and the Appellate Court of First instance that the final report of the expert clearly reveals that the document, Exhibit-A was written by the same person. 27. It is also apt to mention at this juncture, that the plaintiff has not claimed that the defendant had borrowed the money on the same date. The defendant had borrowed the money on several dates and finally Exhibit-1 was executed as a gesture of assurance between both the parties. Exhibit-1 is not a formal agreement. It is a hand-note in the form of an agreement. This answers the first substantial question of law that the First Appellate Court has correctly affirmed the judgment of the learned Trial Court by considering the hand-note (Exhibit-1) to be a basis of relief granted in view of the FSL report, Exhibit-A. Relating to the second substantial question of law formulated in this case, it is held that the plaintiff was successful to prove her case on preponderance of probabilities. Her oral evidence has been substantiated by the documentary evidence or vice versa. 28. It is also reaffirmed by this Court that no anomaly in respect of Exhibit-1 could be deciphered based on the report marked as Exhibit-A and the evidence of the writer who deposed as PW-2 and the evidence of the writer of Exhibit-1 who deposed as PW-2. This decides the second substantial question of law. 29. In the wake of the foregoing discussions, it is thereby held that there appears to be no justified ground to interfere with the concurrent decisions of the Trial Court as well as the Appellate Court. 30. Thereby, appeal is dismissed as the appeal is bereft of merits. 31. Send back the original Trial Court Records as well as the original Appellate Court Records to the Courts. 32. No order as to costs.