Naranjan Singh vs Gurdev Singh

S.S. Sudhalkar, J.—Being dissatisfied with the dismissal of the suit and the appeal based on the promissory note for recovery of Rs. 3700/-, the original plaintiff has come in this second appeal before this court. According to the case of the appellant, respondent-defendant had borrowed an amount of Rs. 2950/-on 10.6.1972 and executed a promissory note mark ''A'' along with pronote receipt mark ''B'' According to the trial Court the promissory note was insufficiently stamped because it did not bear the adhesive ''refugee relief'' stamp and, therefore, it was held that it could not be read in evidence. The trial court also held that the appellant''s counsel fairly conceded that the document was inadmissible in evidence but he feebly argued that even though it was inadmissible in evidence, the advancement of loan was proved independently of the promissory note. The trial Court further observed that the promissory note contained the entire transaction of advancement of loan between the parties and oral evidence to prove the terms of transaction was not admissible u/s 91 of the Evidence Act and the document also being not admissible in evidence, the oral evidence shall be in the nature of the secondary evidence and is not admissible in evidence.

The lower appellate court, of course, held that the execution of the promissory note and the receipt were sufficiently proved but promissory note was inadmissible in evidence because of want of ''refugee relief stamp, it also held that some of the stamps were cancelled by drawing a line and that was not a proper cancellation of the stamps. The lower appellate court has observed that" I have looked at the whole of the writing of the pronote and the lines drawn across those stamps under a magnifying glass and find that those lines across the stamps could not have been made with the pen with which the writing of the pronote was made. The line drawn across the stamps is much thinner than the line of the writing of the pronote suggesting that a different pen must have been used for cancellation. The shade of the ink used also appears to be somewhat different. The cummulative effect of all these circumstances is to show that two of the stamps were probably affixed subsequently or at any rate these were not properly cancelled. The result would be that the promote was in-sufficiently stamped and this would make it inadmissible in evidence."

The lower appellate court did not agree with the trial Judge regarding the execution of the pronote and held that the execution of the pronote was affirmatively proved.

As stated earlier because the pronote was held to be inadmissible in evidence, the appeal was dismissed by the lower appellate court.

I have heard learned counsel for the parties and have perused the record of the case.

Shri Mittal, the learned counsel for the appellant has argued that the ''refugee relief stamp is not required on the promissory note. However, this question is set at rest by the Division Bench of this Court in Kapur Singh v. Dalbara Singh, R.S.A. No. 1430 of 1978. The matter was placed before the Division Bench for deciding the following question referred to by the Single Judge :-

"Whether the promissory note executed in the year 1972 requires to be stamped with a ''refugee relief additional stamp ?

The Division Bench observed that "we, therefore, hold that the promissory note is required to be stamped with ''Refugee Relief'' stamp u/s 3(a) of the Indian Evidence Act, 1899." In view of this judgment of the Division Bench, no further discussion on this point is necessary and it is held that the promissory note required the affixation of ''refugee relief'' stamp. Admittedly, and even from the fact of it, it is apparent that no ''refugee relief'' stamp is affixed on the promissory note.

Learned counsel for the appellant argued that the cancellation of the revenue stamp affixed on the promissory note was properly made. It is apparent from the promissory note that the thumb mark is on two of the stamps only and other two stamps are cancelled by drawing a line only. There is no reason to show that as to why the thumb marks could not be made on the other two stamps. The learned counsel for the appellant has relied on the judgments of (1) K.A. Lona etc. Vs. Dada Haji Ibrahim Hilari and Co. and Others, and (2) Sumitra Debi Gour Vs. Calcutta Dyeing and Bleaching Works, . Relying on these two cases, the learned counsel for the appellant argued that cancellation of the stamps by drawing lines was a valid cancellation and, therefore, could not vitiate the execution of the promissory not. The similar contention raised in this case that drawing two lines across the stamps is note sufficient cancellation accordring to law was not accepted in those cases. In K.A. Lona''s case (Supra), their Lordship of the Karela High Court have relied on Section 12 of the Stamp Act and held that the stamps must be cancelled either immediately they are affixed or immediately after the marker puts his signatures. They have held that in other words, the entire process must take place in such a manner that one must be able to say that it has been done simultaneously as a part of the same transaction.

In the case of Sumitra Debi Gour''s case (supra), the learned Single Judge of the Calcutta High Court held crossing of the stamps is effective cancellation.

However, crossing of the stamps should have been made at the very time the process takes place and if stamps are subsequently affixed and cancelled by drawing lines, the promise cannot get any advantage of the same because he will be, by such an act, illegally trying to show an insufficiently stamped promissory note as sufficiently stamped. In other words, he cannot by such an act convert the promissory note not admissible in evidence into that which is admissible. It will amount to a material alteration in the promissory note.

In Suresh Chandra v. Satish Chandra AIR 1983 All 81 and Narayanprasad Rai Gokulprasad Rai Vs. Ghanshyamlal alias Shukhlal Jawarharlal Kurmi, , this question is considered. In Suresh Chandra''s case (supra), the learned Single Judge of Allahabad High Court has held that when it is found that material alteration are made in the pronote destroying the evidence of his debt, the plaintiff is not entitled to a decree on the original cause of action. In Narayanprasad Rai Gokulprasad Rai''s case (supra), it has been held by the Madhya Pradesh High Court that the alteration which has the effect of making the instrument void u/s 87 of the Negotiable Instruments Act, 1887 should have been brought about by the plaintiff or by any one with his consent or on account of his negligence.

Though slightly on the different point considering the law laid down in all the four cases regarding the drawing of lines and alterations, it can be said to have been established that a promissory note otherwise not admissible in evidence for want of sufficient stamps cannot be subsequently altered to make it appear to be admissible in evidence by adding stamps and cancelling by drawing lines. The question, therefore, will be how and when the lines are drawn and if the lines are drawn for cancellation at the time of execution of the promissory note, there can be nothing against the plaintiff to hold that the promissory note is not admissible because of the same.

With these observations in the background the findings of the lower appellate court assumes importance. The promissory note is in the record of the case and a look on the promissory note would show that the observations of the lower appellate court cannot be brushed aside. Moreover there is one more infirmity in the promissory note and the receipt pronote which is below it. This infirmity being visible to the naked eye (though it is not considered by the courts below) cannot be ignored. From the endorsement regarding attestation after L.T.I. in English in Gurmukhi script, both on the promissory note and the receipt pronote below it, it is apparent to the naked eyes that four revenue stamps on the promissory note and one revenue stamp on the receipt are affixed after the endorsement has been made. That shows that there is something fishy which the plaintiff wants to suppress and this circumstances strengthens the observations of the lower appellate court regarding the cancellation of the stamps. The execution of the pronote itself becomes doubtful in view of this suspicious circumstances.

The lower appellate court has, of course, believed the execution of the promissory note but because of the above position which is apparent even to the naked eye on a glance at the promissory note, it will not be proper for me to shut the eye and ignore the same. The execution of the promissory note itself is, therefore, held to be in suspicious and doubtful circumstances.

Learned counsel for the appellant has cited before me the judgment of the full Bench of the Gujarat High Court in J.M.A. Raju Vs. Krishnamurthy Bhatt, , relating to Section 36 of the Stamp Act, wherein it has been held that once the trial court decides to admit a document as properly or sufficiently stamped, the decision has to be accepted as final and the matter has to be treated as closed and it is not open to any superior court either in appeal or revision to admit the document in evidence or review judicially the decision of the trial court to admit the document. However, the principle held in that judgment does not apply to the facts of this case in view of the circumstances that the promissory note is only marked and it is not exhibited and, therefore, it cannot be said to have been admitted in evidence.

In view of the above discussed facts and circumstances, the appeal deserves to be dismissed. Hence the same is dismissed with costs.