Major Singh vs Raj Kumar

R.L. Anand, J.—This is a defendant''s appeal and has been directed against the judgment and decree dated 31.3.1980 passed by Addl. District Judge Barnala, who affirmed the judgment and decree dated 2.4.1979 passed by Sub Judge IInd Class, Barnala, who decreed the money suit of the plaintiff respondent to the effect that he is entitled to recover Rs. 9,520/ with future interest @ 6 per cent per annum till realisation from the defendant appellant.

The brief facts of the case are that Raj Kumar plaintiffrespondent filed a money suit for a sum of Rs. 9,520/, i.e Rs. 7,000/ as principal and Rs. 2,520/ by way of interest, on the basis of pronote Ex. P1 and receipt Ex. P2. The case set up by Raj Kumar plaintiffrespondent in the trial Court was that Major Singh defendant obtained a sum of Rs. 7,000/ from him on 25.6.1974 and agreed to pay interest @ 1.56 per month and executed a pronote and receipt in this behalf. The pronote and receipt were duly stamped. The money was received by Major Singh in the presence of Jeet Singh, who also attested the receipt which was scribed by the plaintiff. In spite of the repeated demands made by the plaintiff upon the defendant to return the principal amount and interest nothing has been paid. Hence the suit.

Notice of the suit was given to the defendant, who filed the written statement and took certain objections that the pronote and receipt had been materially altered and these are forged documents and thus these have no legal value. He also took the objection of limitation. It was also pleaded by the defendant that the plaintiff was money lender and he had no licence. The defendant also stated that the pronote is not properly stamped or cancelled. On merits, it was stated that Chiman Lal and Raj Kumar (plaintiff) were running a firm known as ''Chiman Lal Raj Kumar'' and the said firm was unregistered. The defendant pleased that on 25.6.1971 he obtained a sum of Rs. 4,500/ from Chiman Lal and executed a writing in his favour. Raj Kumar forged the date from 25.6.1971 to 25.6.1974 and filed the present suit against the defendant for which he is not liable.

The plaintiff filed rejoinder to the written statement in which he reiterated the pleas made in the plaint by denying those of the written statement and from the above pleadings of the parties the trial Court framed the following issues :

Whether defendant took a loan of Rs. 7,000/ on 25.6.1974 from the plaintiff and agreed to pay interest at the rate of Rs. 1.56 P.C.P.M. and executed a pronote and receipt in his favour ? OPP

Whether the suit is barred by limitation ? OPD

Whether the plaintiff is a moneylender ? If so its effect ? OPD

Whether the pronote and the receipt have been properly stamped and the stamps have been duly cancelled ? OPP

Whether the pronote and the receipt have been materially altered as alleged ? If so, its effect? OPD

Relief.

The parties led oral and documentary evidence in support of their case and on the conclusion of the trial issued No. 1 was decided in favour of the plaintiff and against the defendant. Similarly, issues No. 2 to 5 were decided in favour of the plaintiff and against the defendant. It was also held by the trial Court that the pronote and receipt have not been tampered with. Resultantly, the suit of the plaintiff was decreed.

Aggrieved by the judgment and decree passed by the trial Court, the defendant filed the first appeal before Addl. District Judge, Barnala, who vide impugned judgment and decree dated 31.3.1980 dismissed the appeal and aggrieved by the said judgment and decree, the present appeal.

I have heard Mr. S.P. Gupta, Advocate, on behalf of the appellant, Mr. Pawan Kumar Bansal, Advocate, on behalf of the respondent and with their assistance I have gone through the record of the case.

The learned counsel for the appellant submitted that the pronote Ex. P1 and receipt Ex. P2 have been tampered with by the plaintiffrespondent. In fact these documents were executed on 25.6.1971 and in order to bring the suit within limitation the year has been changed from 1971 to 1974. Meaning thereby that digit ''1'' of the year 1971 has been altered to digit ''4'' so as to read it 1974. Since there were vacations in the subordinate courts from 16.6.1997 to 15.7.1997, therefore, the suit has been instituted on 16.7.1997 so as to make it within limitation. In support of his contention the learned counsel for the appellant relies upon the statement of Diwan K.S. Puri, a handwriting expert, who submitted report Ex. DW2/F and stated that the disputed year was 1971 and subsequently altered into 1974 and since it was done with a different ink, therefore, the entire date has been overwritten and the entire date had to be overwritten to match the same with the ink of the altered figure ''4'' which made the disputed document more fraudulent and easy to detect.

On the contrary, it was submitted by the learned counsel for the respondent that the concurrent finding of fact cannot be disturbed in Regular Second Appeal. The defence taken up by the appellant is totally different. It was the case of the defendant that he obtained a loan of Rs. 4,500/ from Chiman Lal and he returned that amount to him. The defendant admits the execution of pronote and in these circumstances there is a presumption that the defendant had executed the pronote against consideration. There is no cogent evidence that the year 1971 has been changed to year 1974. The opinion evidence of the expert cannot take importance to the direct statements of the witnesses, moreover, when the opinion of the expert of the defendant has been contradicted and disproved by the expert who has been examined by the plaintiff. It was also submitted by the learned counsel for the respondent that there is a consistent evidence that Raj Kumar, present plaintiff, paid a sum of Rs. 7,000/ to the defendant in the presence of one Jeet Singh, who has no axe to grind.

I have considered the rival contentions of the parties and I am of the opinion that this appeal is devoid of any merit. The opinion of DW2 Diwan K.. Puri cannot take precedence over the direct and substantial statements of the witnesses. Raj Kumar plaintiff while appearing in the witnessbox as PW1 has categorically deposed that he advanced a loan of Rs. 7,000/ to the defendant, who executed the pronote Ex.P1 and receipt Ex.P2 in the presence of Jeet Singh. It has further been stated by Raj Kumar that a sum of Rs. 7,000/ was given in cash, to the defendant. Jeet Singh PW2 has also corroborated the statement of PW1 Raj Kumar. The counsel for the appellant has not been able to show that why Jeet Singh is supporting the stand of the plaintiff. The plaintiff has also examined PW4 Diwan J. C. Singla, who gave the opinion that the date appearing at three places in Ex. P1 and Ex. P2 was originally written as 25.6.1974 and was not subsequently altered as 25.6.1974. It is a settled principle of law that the opinion of expert is not conclusive piece of evidence and in this regard reliance can be placed upon Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 S.C. 529, in which it was observed as under :

"The expert''s evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence."

In this context the stand of the defendant cannot be ignored. As per his stand he executed the pronote in favour of one Chiman Lal and took the amount of Rs. 4,500/ and thereafter paid the same. If this was so, why the defendant has not taken the said pronote. The plea which has been taken up by the defendant appears to be false. The statement of the defendant Major Singh was recorded before issues on 23.8.1977 in which he taken the following stand :

"I had taken Rs. 4,500/ as loan from the plaintiff about 7 years and I had executed a pronote in his favour, and I had repaid that amount but I was not returned the pronote. I never executed any pronote on 25.6.1975 nor took Rs. 7,000/ from the plaintiff. The plaintiff might have obtained my thumb impression on the previous pronote."

The above would show that the defendant does not want to tell the correct things. The advancement of loan of Rs. 7,000/ stands proved even from the statement of Jeet Singh, who was not interested in the plaintiff nor he was inimically disposed against the defendant. While appearing as DW, the defendant stated that he took the loan of Rs. 4,500/ from Chiman Lal and he further agreed to pay the interest. It was also agreed upon that if he failed to pay the amount then he would pay Rs. 7,000/ to Chiman Lal. In this regard writing Mark A was written. Pronote Ex. P1 and receipt Ex. P2 were also written on the same day. Thus the above stand of the defendant is the third stand which is contradictory to the first and second stand which I have discussed above. In such circumstances no reliance can be placed upon the statement of the defendant. In this view of the matter, I do not see any illegality in the reasons advanced by the courts below when they have decreed the suit of the plaintiffrespondent.

A feeble argument was also raised by the learned counsel for the appellant that it is not proved on the record how the plaintiff arranged a sum of Rs. 7,000/ in order to make the payment to the defendant and in the absence of any cogent proof it has to be held that the pronote and receipt were without consideration. I again do not subscribe to the argument raised by the learned counsel for the appellant firstly for the reason that concurrent finding of fact with regard to the advancement of loan cannot and should not be interfered in the Regular Second Appeal and secondly there is direct evidence that a sum of Rs. 7,000/ was advanced to the defendant, who even admitted the execution of the pronote Ex. P1 and receipt Ex. P2. In these circumstances, it was not obligatory on the part of the plaintiff further to prove from where the money was arranged especially when the plaintiff has categorically stated that he paid the cash consideration to the defendant in the presence of Jeet Singh.

Resultantly, I do not see any merit in this appeal and dismiss the same with no order as to costs.