M.Balasubramaniam vs M.Rathna

Mr. S.Palanivelu, J.—The defendant is the appellant. The plaintiff/respondent filed O.S.No.114 of 1991 on the file of the learned Principal Subordinate Judge, Erode for recovery of money. The trial Court decreed the suit by judgment dated 14.03.2000. Challenging the same, the defendant/appellant filed A.S.No.46 of 2001 before the learned Principal District Judge, Erode. The First Appellate Court dismissed the appeal by confirming the judgment and decree of the trial Court dated 12.06.2001. Challenging the same, the unsuccessful appellant has come forward with this second appeal.

The case of the appellant/defendant is as follows:-

On 23.03.1988, the defendant had borrowed a sum of Rs.40,000/- from the plaintiff for his urgent expenses and executed a promissory note in favour of the plaintiff promising to repay the said sum with interest thereon at 15% per annum on demand of plaintiff or his order. In spite of repeated personal demands made by the plaintiff, the defendant failed and neglected to pay the suit amount.

In the written statement, the respondent/defendant has pleaded as follows:-

The plaintiff is none other than the defendant''s brother''s wife, that his elder brother Nagarajan has created the promissory note and another promissory note, the former in the name of his wife, the later in his own name and filed this suit and O.S.No.113/1991 on the file of the I Additional Subordinate Judge at Erode, that the defendant had no necessity to borrow huge amount on the alleged date of promissory note, that the plaintiff and her husband Nagarajan have no means to advance such huge amount and the plaintiff''s husband and this defendant are not in talking terms for a long time, that the said Nagarajan has set up his wife to file this suit on promissory note created by him and hence the suit is liable to be dismissed.

Based on the above pleadings, the trial Court framed relevant issues. During the trial of the case, plaintiff examined himself as PW1 and as many as 2 documents were exhibited as Exs.A.1 to A.2. On the side of the defendant, DW1 was examined and no documents were marked. Having considered the oral and documentary evidence adduced, the trial Court decreed the suit by judgment and decree dated 14.03.2000. Aggrieved by the same, the unsuccessful defendant has preferred an appeal in A.S.No.46 of 2001 on the file of the learned Principal District Judge, Erode.

The First Appellate Court, on considering the materials on record, dismissed the appeal confirming the judgment and decree of the trial court in O.S.No.114/1991 dated 14.03.2000. Challenging the same, the defendant/appellant has come forward with the present second appeal.

While admitting the Second Appeal, this Court has framed the following substantial questions of law:-

In the face of the evidence in cross of PW1, whether the courts below are right in finding that the promissory note on which the suit is laid is duly executed ?

Ex.A.1 is the suit promissory note allegedly executed by appellant/defendant in favour of the respondent/plaintiff after receiving a sum of Rs.40,000/- on 23.03.1988. The defendant has taken a defence that he did not execute the pro note and that he had not received the amount from the plaintiff and that the signature found in Ex.A.1 does not belong to him. Even though the execution of pro note is disputed by the defendant, the plaintiff did not examine any witness nor the scribe. The defendant in his cross examination has admitted that the witnesses to the execution of Ex.A1 are not alive. However, from the evidence of PW1, the plaintiff, it transpires that the scribe and the other persons who are present at the time of execution of pro-note are alive. Even then, they were not brought to the witness box by the plaintiff. The plaintiff in the oral testimony states that the witnesses are not alive, that when Mohandas has written the pro-note, her husband was also present while she gave money to the defendant. Hence, two persons namely the scribe Mohandas and the husband of the plaintiff were present in the place where the pro-note was executed but the plaintiff has failed to examine those witnesses. When the defendant has raised a plea that he did not execute the pro-note, it is incumbent upon the plaintiff to establish that the pro-note was executed by the defendant.

In this context, the learned counsel for the appellant/defendant would contend that the execution of pro note was denied by the defendant, it is for the plaintiff to prove its due execution. In support of this contention, he placed reliance upon a decision of this Court reported in [A.Raju v. S.Raju] in which it is held that when there was a statutory presumption of consideration in respect of promissory note as per Section 118 of Act, as a matter of fact, defendant can let in direct evidence to prove that promissory note was not supported by consideration, circumstantial evidence may be relied upon if circumstances were compelling burden may once again be shifted upon the respondent/plaintiff, he has to show that the pro-note was supported by consideration. Identical principles are available in the following decisions -

(1) AIR 63 1975 Goa Daman and Diu 60 [Visvonata Raghunath Audi v. Mariano Colaco and another]

(2) Judgment of Andhra Pradesh High Court in SA No.13 of 2001 dated 29.08.2005 [P.Venkatamma and Ors. v. Dontham Sulochana]

(3) AIR 2007 Madhya Pradesh 13 [Shyamrao v. Champalal]

(4) 2011 (3) MWN (Civil) 611 [Ranganayaki v. Kasinatha Padayachi & Anr.]

In the above said Venkatamma''s case cited supra, it is also observed that non-examination of important witness by respondent/plaintiff to prove lending would attract inference under Section 114 (g) of Evidence Act. Since the respondent/plaintiff had not taken any steps to examine the persons who were available at the time of execution of promissory note, adverse inference could be drawn against her.

In view of the above said observations, it is held that the respondent/plaintiff has not proved that the appellant/defendant had executed the promissory note.

Another circumstance which leads to an inference that the promissory note is not true is that the comparison of signature of the defendant with the suit pro-note. The trial court Judge has taken up a job of comparing the signatures of the appellant/defendant found in Ex.A.1 pro-note with that of the signature found in the summons signed by the defendant on 08.03.1991. After comparing the signatures contained in Ex.A1 and the summons, the trial court Judge has reached a conclusion that by comparison, it is proved that the signatures found in the pro-note belong to the appellant/defendant.

The learned counsel for the appellant/defendant would submit that the comparison of signature by the court itself is not admissible, that it might have ascertained opinion of the handwriting expert in sorting the issue as per the settled position. In support of his contention, he placed reliance upon a decision of this Court reported in 2002 (3) MLJ 617 [Marappa Gounder (died) & others v. Kandasamy]. This Court, after observing and following the judgments of the Hon''ble Supreme Court has recorded findings as follows -

"14. While reiterating the principles laid down by the Hon''ble Supreme Court, this Court, in 1997 (1) LAW WEEKLY 402 [Dhanakodi Padayachi v. Muthukumarasmi), would indicate the method of approach to be adopted by the Court, while exercising the power under Section 73 of the Evidence Act.

"15. On the basis of the principles laid down by the Hon''ble Supreme Court, the lower appellate Court, correctly ignoring the finding given by the trial Court on the basis of comparison of the signatures, placed reliance on PW1, in whose favour the promissory note has been executed and Pws 2 and 3, the scribe and the attestor and decreed the suit.

Same principles have been reiterated in a decision of this Court reported in 1999 (iii) CTC 156 [Somasundaram v. Palani] and also in a decision of mine in CRP PD No.2173 of 2008 and MP (MD) No.1 of 2008 dated 24.11.2008 which reads as follows -

"34. In O.Bharathan v. K.Sudhakaran, AIR 1996 SC 1140, the Apex Court, relying on an earlier judgment reported in AIR 1978 SC 14, held that it is not advisable that a judgment should take upon himself the task of comparing the admitted handwriting with the disputed one to find out whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert."

For the purpose of comparison of signatures, it is advisable that the court shall require the defendants to produce documents which are prior to the date of the suit pro note whose dates are contemporanious and after hearing both sides, it shall refer the matter to the wisdom of the handwriting expert. In the case on hand, the trial court has compared the signatures which came to existence long after the date of pro note which will not furnish the desired receipt. The signatures of the defendant prior to the disputed document should be utilised for comparison as per the principles laid down by the Hon''ble Supreme Court. In such view of this matter, even though there is no need for the court to compare the signatures, still, since the trial court has not observed proper procedure in the matter of comparison of signatures, the result of its comparison is not acceptable.

In view of the fact that the respondent/plaintiff has not proved the execution of pronote and there is no material to show that the signatures found in Ex.A.1 belongs to the appellant/defendant, the judgments and decrees passed by both the courts below are liable to be set aside and they are accordingly set aside. O.S.No.114 of 1991 on the file of the Principal Subordinate Judge, Erode dated 14.03.2000 is dismissed. The substantial question of law is answered as indicated above.

In fine, the Second Appeal is allowed with costs setting aside the judgment and decree in A.S.No.46/2011 on the file of the Principal District Judge, Erode dated 12.06.2011 in confirming the judgment and decree in O.S.No.114 of 1991 on the file of the Principal Subordinate Judge, Erode dated 14.03.2000.