Madras High Court
Marappa Gounder (Died), Muthayammal, ... vs Kandasamy on 29 July, 2002
Equivalent citations: (2002)3MLJ617
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT
1. Kandasamy, the respondent herein, filed a suit against Marappa Gounder, the appellant herein, for recovery of a sum of Rs. 19,060/-, on the basis of a promissory note executed by him. The trial Court dismissed the suit, observing that the promissory note had not been executed by the defendant. However, in the appeal filed by the respondent herein, the lower appellate Court decreed the suit by allowing the appeal. Hence, this Second Appeal.
2. The case of the plaintiff is as follows :
The defendant obtained a loan of Rs. 16,000/- on 03.06.1992 from the plaintiff and executed a promissory note for the said sum. Since the amount was not paid in time despite repeated demands, the plaintiff sent a lawyer's notice on 24.06.1994. On receipt of the notice, the defendant sent a reply, containing false allegations. Hence, the suit.
3. The case of the defendant is as follows :
The defendant has no transaction whatsoever with the plaintiff in either obtaining any loan or in executing any promissory note. The promissory note is a forged one, as he has not signed in the same. Therefore, the suit is liable to be dismissed.
4. On the basis of the above pleadings, the issues were framed. On the side of plaintiff, P.Ws. 1 to 3 were examined and Exs. A-1 to A-3 were marked. On the other side, defendant himself got examined as D.W.1. Ultimately, the trial Court, mainly on the basis of the comparison of the promissory note together with the documents, concluded that the signature was not put by the defendant and dismissed the suit.
5. However, the lower appellate Court, placing reliance on P.Ws. 1 to 3, concluded that the plaintiff has proved his case and that the mode of comparison by the trial Court was improper. Hence, this Second Appeal.
6. When the appeal came up for admission before this Court, this Court, instead of admitting the appeal, thought it fit to only issue Notice of Motion. Learned counsel on behalf of the respondent, after entering his appearance, would submit that he is ready for final disposal of the appeal.
7. Learned Counsel for the appellants would submit that the lower appellate Court, without considering the reason given by the trial Court for dismissal of his suit, reversed the decree, when there is no acceptable evidence to show that the defendant executed the promissory note and therefore, the decree passed by the lower appellate Court is to be set aside and the decree passed by the trial Court is to be restored.
8. I heard the learned counsel for the respondent.
9. Learned Counsel for the respondent would contend by citing various authorities that the trial Court, by mere comparing the signature found in the promissory note with the other documents, came to its own conclusion, without appreciating the evidence of P.Ws. 1 to 3, and the said approach is wrong and as such, the decree passed by the lower appellate Court is correct and the same is laible to be confirmed.
10. I carefully considered the submissions made on either side.
11. On going through the judgment of the trial Court, it is noticed that the trial Court compared the disputed signature found in the promissory note with the signature found in other documents such as, Written Statement etc. filed by the defendant. Curiously, the defendant himself would admit in the cross-examination that the signature found in the vakalat filed by the counsel and the signature found in the summons sent by the Court were not put by him. But, the trial Court, unfortunately, compared the signature in the promissory note with the signature in the summons and found that there is a difference. P.W.1 speaks about the execution of document by the defendant in his favour and handing over the promissory note amount to defendant. P.Ws. 2 and 3 are the scribe and the attestor respectively. When it is the case of the defendant that the signature found in the promissory note is not his signature, it is for him to prove the same by getting an expert's opinion. No such step has been taken by the defendant. As noted above, the defendant disputes not only the signature found in the promissory note but also the signature found in the vakalat given to his lawyer and in the summon Under those circumstances, the comparison of these documents by the Court wound not be of any use.
12. It is held in (Somasundaram v. Palani) that "Even though the Court may have the power to compare the signatures, there must be some admitted signature of the defendant, on the basis of which a comparison will have to be made. In this case, a comparison has been made on the basis of signatures affixed by defendant in the vakalath and written statement, which are documents that have come into existence after the dispute arose, and after the promissory note in question was filed into Court along with plaint. A comparison should not have been made on the basis of those signatures. If that be so, it has to be held that the comparison was not made in accordance with law, even though the Court is empowered to make a comparison."
13. The above observation of this Court would make it clear that the comparison of the documents must be made only with the admitted signature, that too, in the documents, which have come into existence prior to the filing of the suit. In this case, admittedly, the signatures of the defendant found in the summons as well as the vakalat are not his admittied signatures. Moreover, the other documents with the admitted signatures, which were in existence prior to the suit, have not been filed by the defendant to show that the signature is different. That apart, as held by the Hon'ble Supreme Court in A.I.R.1967 SUPREME COURT 1326 (Fakhruddin v. The State of Madhya Pradesh), this Court would specifically hold that "Although there is no legal bar to the judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that a judge should take upon himself the task of comparing the admitted writing 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."
14. While reiterating the principles laid down by the Hon'ble Supreme Court, this Court, in 1997 (1) LAW WEEKLY 402 (Dhanakodi Padayachi v. Muthukumarsami), 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 P.W.1, in whose favour the promissory note has been executed and P.Ws. 2 and 3, the scribe and the attestor and decreed the suit. The trial Court rejected the evidence of P.Ws. 2 and 3 merely on the reason that they are related to P.W.1. But, this reasoning is not correct, as it is well settled that proximate relationship of a witness with any party to the proceedings is by itself no ground to reject such evidence, unless any tangible or concrete defects are pointed out or any convincing reasons are assigned to reject the evidence, otherwise than on the mere ground of relationship.
16. In view of what is stated above, the reasonings given by the lower appellate Court in decreeing the suit, in my view, are correct and since there is no substantial question of law, I do not find any merit in this Second appeal, which is, accordingly, dismissed. No costs. Consequently, the connected C.M.P. is closed.