A. Thomas Xavier vs Murugesan

S. Palanivelu, J.—The petitioner is the defendant in O.S. No. 15 of 2006 on the file of the learned Subordinate Judge, Paramakudi filed by

the respondent herein for recovery of money. It is stated in the plaint that on 01.05.2003 this petitioner received a sum of Rs. 1,50,000/-(Rupees

One Lakh and Fifty Thousand only) from the respondent herein and executed the suit promissory note.

In the written statement the petitioner has pleaded that while he was working in the State Bank of India at Paramakudi, he approached one

Ibrahimshaw, who is a moneylender, to advance loan of Rs. 30,000/-(Rupees Thirty Thousand only) to his friend and the said Ibrahimshaw

obtained a blank promissory note with the signature from this petitioner and thereafter he gave loan to the friend of the petitioner herein and

subsequently the said friend discharged the amount by paying to the said Irahimshaw and while this petitioner demanding the said Ibrahimshaw to

return the blank promissory note, he told that it was misplaced and he would return the same after securing it.

It is further stated that relying upon the words of the said Ibrahimshaw, the petitioner did not compel to return the blank promissory note and

now he believes that the said blank promissory note has been utilised by this respondent and the suit has been filed.

The trial in the said suit was started and the plaintiff''s evidence was over and afterwards, the petitioner filed the application requesting the Court

to refer the said promissory note to an expert in the Forensic Science Department to ascertain the fact that whether the signature and the contents

of the promissory note were made simultaneously.

The petition was resisted by the respondent by stating that the attestors to the promissory note have been examined and the same has been

proved and only to drag on the case, the petition has been filed.

The learned trial Judge has dismissed the application by stating that the document of the Court shall not be sent out of Court and it is a post trial

step to refer the promissory note for expert''s opinion and it cannot be entertained.

Ms. R. Shivasankari, learned Counsel appearing for the petitioner would submit that inasmuch as already the defence has been raised in the

written statement to the effect that the petitioner has only delivered the blank promissory note with his signature to one Imbrahimshaw as a security

for advancing loan of Rs. 30,000/-(Rupees Thirty Thousand only) to his friend and the said friend having discharged the loan and the fact that the

failure is on the part of the said Ibrahimshaw to return the blank promissory note, it has become necessary for this petitioner to establish those facts

before the Court and only if the said promissory note is sent for scientific examination to verify the age of the signature and that of the other

contents of the document made at the later date, the truth could be unearthed.

Mr. M. Suresh Kumar, learned Counsel appearing for the respondent would submit that there is no necessity to send the promissory note for

comparing the age of the signature for the reason that the practice has been discouraged by this Court by means of earlier decisions.

Learned Counsel for the petitioner would draw attention of this Court to the decision of this Court in R. Elango v. K. Dhanasekaran and Ors.

reported in (2008) 8 MLJ 299, wherein it is observed that a handwriting expert opinion is of weak value but it shall be considered along with all

other relevant facts and materials. But the facts involved in the decision are not akin to the facts of this case.

Learned Counsel for the respondent would garner support from the decision of this Court in S. Gopal Vs. D. Balachandran, , wherein the

learned Judge after considering the judgment in Rajendran v. Usharani reported in 2001 LW (Crl.) 319 has observed that once the execution is

admitted, it shall be taken that the cheque was issued by the accused in favour of the complainant. Further in the decision in Gopal''s case, (supra)

this Court has observed thus:

It is found that the age of the ink cannot be determined by an expert with scientific accuracy. Further, the use of old ink manufactured long ago will

definitely create a dent in the opinion furnished by an expert. Therefore, there is no necessity for sending the disputed cheque admittedly signed by

the petitioner to an expert for his opinion. The order passed by the learned Judicial Magistrate I, Erode in C.M.P. No. 2915 of 2007 in C.C. No.

1287 of 2006 does not suffer from any illegality or impropriety. Therefore, there is no warrant for interference with the well considered order

passed by the Trial Court.

Considering the view already expressed by this Court as well as in the considered opinion of this Court, the request of the petitioner cannot be

entertained for the reason that there is every opportunity available for him before the trial Court to examine his friend for whom the petitioner

requested the said Imbrahimshaw and also Ibrahimshaw before the Court to establish his contentions and hence the present petition is not

maintainable. There is no infirmity in the order passed by the Court below which is confirmed.

In fine, the Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.