Madras High Court
P.Ganesan vs G.Govindasamy on 29 October, 2014
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.10.2014 CORAM THE HONOURABLE MR.JUSTICE P.DEVADASS Second Appeal (MD)No.1041 of 2009 and M.P.(MD)No.1 of 2009 P.Ganesan : Appellant/Defendant Vs. G.Govindasamy : Respondent/Plaintiff Prayer Second Appeal is filed under Section 100 of the Civil Procedure Code praying to set aside the judgment and decree passed in A.S.No.12 of 2007 on the file of the Additional District Court/Fast Track Court No.I, Thoothukudi, dated 07.07.2009, confirming the judgment and decree in O.S.No.39 of 2005, on the file of the Sub Court, Thoothukudi, dated 30.11.2006. !For Appellant : Mr.S.Meenakshi Sundaram ^For Respondent : Mr.S.Subbiah :JUDGMENT
Since a money decree has been passed in O.S.No.39 of 2005 by the Sub Court, Thoothukudi, as against the appellant/defendant and the same has been upheld by the Additional District Court/Fast Track Court No.I, Thoothukudi, in A.S.No.12 of 2007, the appellant/defendant has directed this second appeal.
2. The respondent/plaintiff instituted the suit on a promissory note dated 19.02.2002, alleging that it was executed by the appellant/defendant for the principal sum of Rs.1,50,000/-, agreeing to repay it with interest and since the appellant/defendant had failed to repay the principal and the interest, he has filed the suit.
3. The suit has been resisted by the appellant/defendant by filing written statement contending that he did not borrow any money as alleged by the respondent/plaintiff and he did not execute any promissory note and his signature has been forged in the suit promissory note and thus, he is not liable to pay the suit amount.
4. The learned Sub Judge, Thoothukudi, referring to the evidence of the respondent/plaintiff (P.W.1) and P.W.2 and also the evidence of the appellant/defendant (D.W.1) and also comparing the signature of appellant/defendant found in written statement, and in his vakalat, with the signature found in Ex.A.1, came to the conclusion that the execution of the suit promissory note has been proved and decreed the suit.
5. The first Appellate Court, in view of the decision in Pattabirama Reddiar and another vs. Navaneetha Sundaram [2006(2) CTC 201], though not accepting the mode of comparison of the signatures, adopted by the trial Court, taking note of the evidence let in, agreed with the final conclusion of the learned Sub Judge, in decreeing the suit and dismissed the appeal.
6. In the circumstances, as stated at the outset, the appellant/ defendant has directed this second appeal.
7. For the purpose of the second appeal, the following substantial questions of law have been framed:
"1.Whether the Courts below are correct in comparing the signature by naked eye by the Courts itself without getting an expert opinion in the light of the dictum laid down in 2005(2) MLJ 603, 2007(2) LW 450 and 2008(3) MLJ 897?
2. Whether the Courts below are correct in comparing the disputed signature with that of admitted signature of different periods?"
8. The learned counsel for the appellant/defendant contended that in law, comparing the signature by the Presiding Officer of the Court himself, is not the proper mode and the disputed signature should be compared with the admitted signature by an expert. However, the Trial Court has erred in comparing the signature by itself. This has not been properly viewed by the first Appellate Court. In this connection, the learned counsel for the appellant/defendant would cite the decision of this Court in Chandran Udayar v. Kasivel [2008(3) MLJ 897].
9. The learned counsel for the appellant/defendant also would contend that Ex.A-1-promissory note is of the year 2002 and the trial was taken up in 2006. It is common sense that by this time, there will be change in one's signature. Therefore, it is too dangerous to compare the signatures having a distance of five years.
10. On the other hand, the learned counsel for the respondent/plaintiff would contend that by sufficient evidence, the respondent/plaintiff has proved the execution of Ex.A.1. The respondent/plaintiff as P.W.1 and other attestor P.W.2-Marimuthu have spoken to about the execution of promissory note and passing of consideration. Further, D.W.1 also admitted the signature of the other attesting witness in Ex.A.1, viz., one Victor. Further, in having put up a plea that the promissory note is a forged one, the appellant/defendant would have taken steps for expert opinion and he did not do so. Further, at no point of time, the appellant/defendant has lodged a police complaint as against the respondent/plaintiff that his signature has been forged and Ex.A.1 is a forged one. Even in the decision cited by the learned counsel for the appellant/defendant, it was held that expert's opinion is not equivalent to conclusive proof. It is merely an opinion evidence.
11. In reply, the learned counsel for the appellant/defendant would submit that the very execution of Ex.A.1 has not been properly proved and even P.W.2 has fumbled in the witness box and he has shown himself a lier.
12. I have given my anxious consideration to the arguments of the learned counsels at the bar and perused the decision cited by the learned counsel for the appellant/defendant and the impugned judgments of the Courts below and the case records.
13. Actually the second appeal arose out of a simple suit on a promissory note. The specific case of the respondent/plaintiff is that the appellant/defendant borrowed a sum of Rs.1,50,000/- from him on 19.02.2002 and executed the suit promissory note-Ex.A.1. However, the appellant/defendant denied his execution of the promissory note. He alleged that it is a rank forgery.
14. Ex.A.1 has been executed in favour of the respondent/plaintiff. It was attested to by P.W.2-Marimuthu and one Victor. The respondent/plaintiff as P.W.1 has spoken to about the execution of Ex.A.1 by the appellant/defendant (D.W.1), Ganesan and he has also examined P.W.2- Marimuthu, who had also spoken in extenso about the execution of Ex.A.1 by D.W.1 and the signature therein. In his cross-examination, D.W.1 would admit the signature of the other attesting witness Victor and he did not plead ignorance about that.
15. In this connection, it has been contended by the learned counsel for the appellant/defendant that even the very Marimuthu (P.W.2) and Victor would have been co-conspirators for the commission of forgery by P.W.1 on the appellant/defendant.
16. Even the first Appellate Court in its judgment has differed with the mode adopted by the Trial Court in comparing the admitted signature of the appellant/defendant found in his written statement, and in his vakalat with the disputed signature in Ex.A.1. However, the first Appellate Court rested its conclusion not on the comparison but on the evidence adduced by the respondent/plaintiff, to prove the execution of the promissory note.
17. Opinion evidence is contemplated under Section 45 of the Indian Evidence Act, 1872. It also will come under scientific evidence. The evidence of an expert witness is not equivalent to the evidence of an ocular witness. He gives his opinion. It is his opinion evidence. It is the opinion formed by a person based on the materials produced before him. By opinion evidence alone, a conclusive finding cannot be arrived at. It may be helpful to find out the truth, but it cannot be the sole test to decide the disputed point. This has also been remarked by the learned Single Judge of this Court in Chandran Udayar's case (supra).
18. We have already seen the oral and documentary evidence let in by the respondent/plaintiff as to the execution of the suit promissory note. The appellant/defendant took the specific plea that his signature has been forged in Ex.A.1. This is a very serious charge. It is more than cheating a person. When an innocent man's signature is so put in a promissory note, he will be frightened and even he will beat the person who has forged his signature. However, this appellant/defendant is a good man and he did not do so. But, nothing prevented him from going to a police station and lodging a complaint for an offence under Section 420 of the Indian Penal Code. His written statement cannot be equivalent to police complaint. Nothing prevented him from filing a private complaint before the Jurisdictional Magistrate. Except making a one line pleading in his written statement that it is a forged one, he did not do anything. Further, even the appellant/defendant would have taken steps to send Ex.A.1 for comparison by an expert to prove that the signature found therein is not that of him. Therefore, in the facts and circumstances, the plea in the written statement appears to be an usual plea made by a defendant in a suit on promissory note.
19. In the face of the available evidence on record, the execution of the promissory note has been established. In such circumstances, necessarily, the presumption under Section 118 of the Negotiable Instruments Act, 1881, arises. In such circumstances, the appellant/defendant ought to have let in rebuttal evidence, but the evidence of D.W.1 alone is not sufficient. Merely, by inserting a one line statement in his written statement denying his signature in promissory note and describing it as a forgery, is not sufficient to thrash down the case of the respondent/plaintiff, when especially positive evidence also has been let in. Accordingly, the substantial questions of law are answered as against the appellant/defendant.
20. Ultimately, the second appeal fails and it is dismissed. The concurrent judgments and the decrees of the Trial Court and the first Appellate Court are confirmed. Consequently, the connected miscellaneous petition is also dismissed.
21. In the facts and circumstances of the case, let us not further saddle the appellant/defendant with cost of the second appeal.
To
1.The Additional District Court/ Fast Track Court No.I, Thoothukudi.
2.The Sub Court, Thoothukudi.