Robinson vs Ramachandran

Pushpa Sathyanarayana, J.—The defendant, who has lost before the Courts below in a suit based on a promissory note is the appellant herein. The relevant facts for the proper adjudication of the case is as follows:-

According to the plaintiff, the defendant had borrowed sum of Rs. 90,000/- on 2/6/2006 agreeing to repay the same with an interest at 24% p.a., and executed the suit promissory note on the same day. It is stated by the plaintiff that the defendant had made a payment of Rs. 5,000/- on 9/9/2006 and made an endorsement on the back of the promissory note. As the defendant failed to pay the amount, the plaintiff caused suit notice on 8/3/2007 calling upon the defendant to discharge the obligation. The defendant also sent a reply with untenable allegations. Therefore the plaintiff has filed the suit. The defendant in his written statement had denied all the allegations including the execution of a promissory note. He had denied his signature in Ex.A1 stating that his signature was forged by the defendant. The endorsement alleged to have been made on 9/9/2006 after part payment of Rs. 5,000/- is also disputed by the defendant. According to the defendant, the personal enmity between him and the plaintiff had driven the plaintiff to file the frivolous suit and hence the same is liable to be dismissed.

Before the trial Court, on the side of plaintiff, Exs.A.1 to A.3 have been marked and P.Ws. 1 and 2 had been examined and on the side of the defendant, D.W.1 had been examined.

The Courts below, after elaborate consideration had held that the suit promissory note is a valid genuine and legally enforceable one and decreed the suit. Aggrieved by the decisions of the courts below, the defendant has preferred the above second appeal raising the following questions of law:-

"1. Whether the First Appellate Court is right in deciding the matter by placing burden of proof on defendant to prove the signature without considering the settled proposition of law that plaintiff should prove his own case independently?

Whether the First Appellate Court is right in dismissing the appeal by declaring that the PAN card issued by the Government of India, is an admissible document to verify the same?

Whether the First Appellate Court is wrong in admitting Ex.A.1 as promissory note though the same was contained conditional clause? (sic)

As the execution of the suit promissory note itself is denied, the first question that has to be seen is ''whether the suit promissory note is genuine, valid and enforceable''?.

The learned counsel for the respondent/plaintiff contended that Ex.A. 1 is proved

(i) by examining P.Ws. 1 and 2 who have deposed that the defendant borrowed the money and executed the promissory note.

(ii). Secondly, A.1 itself was said to be written by the defendant himself. Therefore, it is said to be a self-styled document.

(iii). Thirdly, it was contended that when the defendant had filed I.A to send the documents to an expert for comparison of signatures and failed to continue the same, it is presumed that the defendant had not discharged the burden on him.

Therefore, Ex.A1 is deemed to be proved.

On the other hand, the learned counsel for the appellant/defendant contended that he had not borrowed money from the plaintiff nor did he write and execute Ex.A.1 by himself. In Ex.A.4 reply notice as well as in the written statement, the defendant''s specific case was that he had not executed the promissory note and borrowed money from the plaintiff and contended that the plaintiff had forged the signature of the defendant and that he should be prosecuted for the same. While so, the contention that he had admitted in the cross-examination that he had signed in Ex.A. 1 is only a mistake and cannot be deemed to be an admission. In fact, the lower Appellate Court had not adverted to the evidence of D.W.1.

Ex.A.1 is the suit promissory note which according to the defendant was not signed by him. He had produced Ex.B. 1 which is the PAN card issued in his name and admitted the signature therein to be compared with Ex.A. 1. The defendant also admitted his signature in Ex.A.3 which is the acknowledgement signed by him for receipt of Ex.A.2 notice. The defendant had further stated that he used to sign only as , whereas in Ex.A. 1, it appears to have been signed as . Even in Ex.A.3, it has been signed as and it is contended by him that he never used to sign as

It is also stated further that the contents of Ex.A.1 was written by the defendant himself. To support his contention, the plaintiff has examined P.W.2 who has deposed that on 2.6.2006, the plaintiff had received the amount and executed the promissory note and he had signed as a witness in the promissory note.

Therefore, the plaintiff contended that the evidence of P.W.1 and P.W.2, go to prove the execution of the promissory note. On the other hand, the defendant had denied the execution of Ex.A.1 and denied his signature also in the same. The defendant also had deposed in his evidence that he was not present in Nagercoil as he was taking treatment on that date in Thanjavur Hospital. Having denied his signature in Ex.A.1, the defendant had filed I.A. No. 204 of 2007 for sending the document to the expert which was dismissed for default. Thereafter, a restoration application was also filed. However, it was not proceeded further.

Though the burden is on the plaintiff to establish the execution of Ex.A.1, the defendant had taken out an application as he denied the signature in Ex.A.1. For the reasons best known to him, it was not prosecuted. Merely because the defendant had taken out an application to send the document for comparison of signatures to an expert to discharge his burden, it does not absolve the burden of the plaintiff to prove the execution of the same as the burden is primarily on the plaintiff to prove. Once the plaintiff discharges his burden, then the burden shifts on the defendant.

In so far as the comparison of signature is concerned, the burden is only on the plaintiff to establish the execution when the same is denied in the written statement. Whereas in this case, though the defendant himself had taken steps to send the document to the expert, but had given up the process in the middle. But the Courts below have taken the task of comparing the signature by themselves. Whether such an exercise by the Courts below is permissible when the plaintiff himself has not taken care to prove the execution. In this regard, the learned counsel for the respondent/plaintiff had placed reliance on State of Gujarat Vs. Vinaya Chandra Chhota Lal Patni, , wherein in paragraph 10 it has been held as follows:-

"A court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for a Court to record a findings about a person''s writing in a certain document merely on the basis of comparison, but a Court can itself compare the writings in order to appreciate properly the other evidence produced before in that regard. The opinion of a handwriting expert is also relevant in view of S. 45 of the Evidence Act. But that too is not conclusive. It has also been held that the sole evidence of an handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. It follows that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing. It was therefore, not right for the learned Judge to consider it unsafe to rely upon the evidence of the complainant in a case like this, i.e. in a case in which no handwriting expert had been examined in support of his statement."

In Fakhruddin Vs. The State of Madhya Pradesh , wherein in paragraph Nos. 10 and 11 it has been held as follows:-

"10. Evidence of the identity of handwriting receives treatment in three sections of the Indian Evidence Act. They are Sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available, the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (S. 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (S. 73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person.

Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case, the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way, the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where as expert''s opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert of other witness."

The defendant had also filed Ex.B.1 PAN card which could have been sent to the expert for comparison. But not in all cases, the Court can compare the signature. When the defendant denied the execution of the pro-note it is the duty of the plaintiff to establish his case. The plaintiff having failed to discharge the burden cast upon him cannot take advantage of the fact that the Court had compared the signatures and found the signature of the defendant to be the same. Since the plaintiff failed to discharge the burden cast upon the plaintiff, the decree granted in his favour cannot be sustained.

Next, the plaintiff/respondent relied on the deposition of D.W.1, who has admitted in his evidence that he had received Rs. 90,000/- and signed in Ex.A.1 which is as follows:-

The learned counsel for the respondent based on the above quoted evidence of D.W.1 contended that D.W.1 has admitted the execution of the signatures in the cross-examination and therefore, the burden is discharged as admitted fact need not be proved.

Per contra, the learned counsel for the appellant/defendant contended that the defendant had denied the borrowal from the beginning viz. in the reply notice Ex.A.4 dated 14.3.2007 in his written statement and even in his evidence. However, it is a mistake which has crept in, in the deposition of D.W.I, as if he had admitted the execution of the suit promissory note. The said mistake cannot be taken advantage of by the plaintiff when the burden is cast on the plaintiff to prove the execution of the suit promissory note.

In this regard, the learned counsel appearing for the respondent relied on a decision reported in Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import, , wherein in paragraph 17, it has been held as follows:-

"Admission, unless explained, furnishes the best evidence. With respect, the High Court overlooked the material evidence, drew impermissible inference and came to the conclusion which on evidence we find utterly unsustainable. A finding of fact recorded by the High Court overlooking the incontrovertible evidence which points to the contrary and therefore, utterly unsustainable cannot come in the way of this Court reaching a correct conclusion on facts and the examination of the evidence by this Court cannot be impeded by a mere submission that this Court does not interfere with finding of fact."

17(A). Section 3 of the Evidence Act defines ''Evidence'' means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to matters to fact under inquiry; such statements are called oral evidence. The object of cross-examination is to weaken, quality or destroy the case of the opponent and to establish one''s own case by means of his opponents'' witnesses. However, the suggestion made in the cross-examination is not evidence but may aid the case when other evidence establishes the allegation put forth by the party.

No doubt, on the reading of D.W.1, it can be seen that the defendant has admitted that he has signed in Ex.A.1. However, the other surrounding circumstances and evidence and the denial by the defendant should be taken into consideration before arriving at a conclusion. Whether the said recording of the evidence of D.W. 1 could be stated to be an admission at all because in normal circumstances, if such a answer is inadvertently recorded, there will be an explanation in the re-examination. In the absence of the same, the same can be taken to be only as a mistake. Besides it will not be a sound rule of appreciation of evidence to pick up an answer from the cross-examination of a witness and draw inference taking it in isolation. It has to be seen how consistent the testimony of the witness is and how that answer fits in with the rest of the evidence and probabilities of the case. During cross-examination, where the question is also not recorded from one sentence stated as reply it cannot be inferred that the defendant admitted his execution of Ex.A.1. Therefore, it can be stated that the plaintiff has not discharged his burden in proving the execution of the document, but relied on the admission of D.W. 1.

The learned counsel appearing for the appellant/defendant also pressed into service in Kundan Lal Rallaram Vs. Custodian, Evacuee Property, Bombay, , wherein in paragraph No. 5, it has been held as follows:-

"Therefore, the burden initially rests on the plaintiff who has to prove that the promissory note was executed by the defendant. As soon as the execution of the promissory note is proved, the rule of presumption laid down in S. 118 of the Negotiable Instruments Act helps him to shift the burden to the other side. The burden of proof as a question of law rests therefore on the plaintiff; but as soon as the execution is proved, S. 118 of the Negotiable Instruments Act imposes a duty on the Court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendant. The defendant may adduce direct evidence to prove that the promissory note was not supported by consideration, and, if he adduced acceptable evidence, the burden again shifts to the plaintiff, and so on. The defendant may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift again to the plaintiff. He may also rely upon presumptions of fact, for instance those mentioned in S. 114 and other Sections of the Evidence Act."

In the foregoing circumstances, it could be seen that the Courts below have wrongly caused the burden of proof on the defendant to prove the signature without adverting to the settled principles of law that the plaintiff should discharge the burden of proof and therefore, the plaintiff having not established the execution of exhibits under Ex.A. 1 is not entitled to the decree as prayed for and the questions of law are answered accordingly. The judgment and decree granted by the trial Court as confirmed by the Appellate Court are set aside and the suit is dismissed. In the result, the Second Appeal is allowed. No costs. Consequently, the connected Miscellaneous Petition is closed.