Kerala High Court
Jose Valiyaveedan vs Giri K.George on 20 August, 2010
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
FRIDAY, THE 2ND DAY OF MARCH 2012/12TH PHALGUNA 1933
OP(C).No. 953 of 2010 (O)
OS.240/2008 OF THE SUBORDINATE JUDGE'S COURT,KOTTAYAM
PETITIONER:
------------------
JOSE VALIYAVEEDAN, S/O.V.V.CHACKO,
VALIYAVEETTIL HOUSE, VADAVATHOOR P.O.,
KOTTAYAM.
BY ADV. SRI.M.P.MADHAVANKUTTY
RESPONDENT:
--------------------
GIRI K.GEORGE,
PROPRIETOR TWINS HARDWARE & PAINTS
KALLUKAL KADAVU POOPPADA,
MANARCADU P.O., KOTTAYAM- 686 001.
BY ADVOCATE SMT.GIRIJA.L.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.240/2008 BEFORE
THE SUBORDINATE JUDGE'S COURT, KOTTAYAM.
EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT.
EXT.P3 TRUE COPY OF THE PROMISSORY NOTE.
EXT.P4 TRUE COPY F THE PROOF AFFIDAVIT.
EXT.P5 TRUE COPY OF THE DEPOSITION.
EXT.P6 TRUE COPY OF THE PETITION TO RECALL HIM AND RE-
EXAMINE.
EXT.P7 TRUE COPY OF THE ORDER DATED 20.8.2010 IN
I.A.NO.1976 OF 2010 IN O.S.NO.240/2008 BEFORE THE
SUBORDINATE JUDGE'S COURT, KOTTAYAM.
EXT.P8 TRUE COPY OF THE ADDITIONAL AFFIDAVIT FILED BY
THE PETITIONER.
EXT.P9 TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT.
EXT.P10 TRUE COPY OF THE ORDER DATED 26.10.2010 REJECTING
EXT.P8 ADDITIONAL AFFIDAVIT.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
AHZ/
K.T.SANKARAN, J.
------------------------------------------------------
O.P.(C) NO. 953 OF 2010 O
------------------------------------------------------
Dated this the 2nd day of March, 2012
JUDGMENT
The petitioner filed O.S.No.240 of 2008 on the file of the Court of the Principal Subordinate Judge, Kottayam, against the respondent for realisation of money on the foot of a promissory note. The respondent/defendant denied the execution of the promissory note. He contended that he had joined a chitty run by the plaintiff and while receiving the prize amount, he was forced to handover a blank signed cheque, two signed blank papers and two unfilled printed forms. Though the amount covered by the chitty was repaid, the signed papers were not handed over. The defendant further contended that the plaintiff has filled the blank portions in the printed form and fabricated the suit promissory note.
2. The plaintiff was examined as PW1 and the defendant was examined as DW1.
3. After closing the evidence, the petitioner/plaintiff filed O.P.(C) NO.953 OF 2010 O :: 2 ::
I.A.No.1976 of 2010 to recall the plaintiff and to mark certified copies of certain documents. That application was allowed by Ext.P7 order dated 20.8.2010 on payment of costs and the plaintiff was permitted to prove the documents "subject to admissibility".
4. Thereafter, the petitioner/plaintiff filed a proof affidavit, in which, he stated the following: While the defendant gave evidence, he deliberately put his signature in the deposition by changing his handwriting. This would be clear from the signature put by the defendant in his deposition while he was examined before the Court of the Judicial Magistrate of the First Class in a case filed by the plaintiff under Section 138 of the Negotiable Instruments Act. The plaintiff also stated in the affidavit that the deposition of the defendant in S.T.No.119 of 2007 (the case before the Magistrate's Court) and his signature may be marked as Exts.A3 and A3(a) respectively. The petitioner also sought to mark copy of the notice sent by him to the defendant and the acknowledgment card in which the signature of the defendant appears.
5. Objections were filed by the defendant to the proof affidavit filed by the plaintiff. The defendant contended that the court O.P.(C) NO.953 OF 2010 O :: 3 ::
permitted the plaintiff only to produce certain documents and mark the same "subject to admissibility". But, while filing the proof affidavit, the plaintiff stated several other facts in the affidavit and they are intended to fill up the lacuna in the evidence.
6. The court below considered the objections raised by the defendant and directed the plaintiff to file a proper additional affidavit containing the averments with respect to copy of the notice and the acknowledgment card. The court below also considered the objection raised by the defendant that the deposition of the defendant in the criminal case and the signature in the deposition could be proved only in the cross examination of the defendant and then only it would be admissible. The court below held, by the order dated 26.10.2010, that the plaintiff can mark the deposition and the signature therein "by adopting some other modes as contemplated under the Evidence Act". The order dated 26.10.2010 is under challenge in this Original Petition.
7. Learned counsel for the petitioner submitted that it is not necessary to confront with the defendant, the deposition in the criminal case and the signature therein, in order to prove the same. O.P.(C) NO.953 OF 2010 O :: 4 ::
He submitted that a distinction has to be drawn between proof of admission under Section 21 of the Evidence Act and proof of a previous statement made by the witness under Section 145 of the Evidence Act. The learned counsel relied on the decision of the Supreme Court in Biswanath Prasad and others v. Dwarka Prasad and others (AIR 1974 SC 117). In that case, the question was whether the plaint schedule properties were the self acquired properties of the first defendant or whether they were joint family properties. There was also a question as to whether the shop room situated in a particular plot belonged to the first defendant or it formed part of the joint family properties. The first defendant relied on the depositions of the plaintiff and the eighth defendant as well as the written statement filed by the plaintiff in an earlier suit between the parties, as admission of the nature of the property. The courts below relied on the written statement and deposition in the earlier suit as admission on the part of the plaintiff in the subsequent suit and held that the properties are not joint family properties. A contention was put forward before the Supreme Court that the deposition of the plaintiff and the written statement were not confronted to him when he was in the witness box in the subsequent O.P.(C) NO.953 OF 2010 O :: 5 ::
suit and no opportunity was granted to explain the admissions. In that context, the Supreme Court held thus:
"8. There is no merit even in the contention that because these three statements - Exs.G, G2 and H - had not been put to the first plaintiff when he was in the witness box or to the eighth defendant although he had discreetly kept away from giving evidence, they cannot be used against him. Counsel drew our attention to S.145 of the Indian Evidence Act. There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfills the requirements of S.21 of the Evidence Act: in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore; in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by S.145 of the Evidence Act. This distinction has been clearly brought out in the ruling in Bharat Singh's case, (1966) 1 SCR 606; 615-16 = (AIR 1966 SC 405). This Court disposed of a similar argument with the following observations:
O.P.(C) NO.953 OF 2010 O :: 6 ::
"Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S.145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence."
8. In Bharat Singh v. Bhagirathi (AIR 1966 SC 405), the Supreme Court held that an admission is substantive evidence of the fact admitted and that admissions duly proved are "admissible evidence irrespective of whether the party making them appeared in O.P.(C) NO.953 OF 2010 O :: 7 ::
the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions". This decision was followed by the Supreme Court in Union of India v. Moksh Builders and Financiers Ltd. and others (AIR 1977 SC 409).
9. Section 21 of the Indian Evidence Act deals with proof of admissions. Relevant part of Section 21 reads as follows:
"21. Proof of admission against persons making them, and by or on their behalf.--
Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:--
(1) ......
(2) ......
(3) ......"
10. 'Admission' is defined in Section 17 of the Indian Evidence Act, which reads as follows:
O.P.(C) NO.953 OF 2010 O :: 8 ::
"17. Admission defined.-- An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned."
11. Section 145 of the Indian Evidence Act reads as follows:
"145. Cross-examination as to previous statements in writing.-- A witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
12. In the present case, the deposition of the defendant is not relied on to prove any of the statements made by the defendant in the criminal case. None of the sentences in the deposition is being relied on by the plaintiff in the present case. The purpose of marking O.P.(C) NO.953 OF 2010 O :: 9 ::
the deposition in the criminal case under Section 138 of the Negotiable Instruments Act is to prove that the defendant deliberately put a different signature in the deposition in the present case.
13. Going by the definition of "admission" in Section 17 of the Evidence Act, it should be a statement, oral or documentary or contained in electronic form. A signature contained in an admission cannot be treated as an admission and therefore, the signature cannot be treated as substantive evidence. A statement can be treated as an admission and it can be proved as a substantive evidence. If that statement is otherwise admitted and the maker states that he put his signature under the statement, that can also be treated as admitted. But, by producing a statement as evidence of admission, it cannot be used as admission of a disputed signature. If the statement has nothing to do with the facts in issue in the case in which that statement is sought to be proved, the signature therein cannot be proved by mere production of that statement, in order to prove the disputed signature of the maker of the statement.
14. For the aforesaid reasons, I am of the view that the signature O.P.(C) NO.953 OF 2010 O :: 10 ::
of the defendant contained in the deposition given by him in the criminal case as such may not be treated as admission and, therefore, the signature cannot be treated as substantive evidence in the present case, if the statement in the deposition cannot be treated as an admission. On the other hand, if the statement is to be proved as an admission and if it is admissible under Section 21 read with Section 17 of the Evidence Act, it could also be proved that the signature in the deposition was put by the deponent thereof.
15. Section 80 of the Evidence Act reads as follows:
"80. Presumption as to documents produced as record of evidence.-- Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume--
that the document is genuine; that any statements O.P.(C) NO.953 OF 2010 O :: 11 ::
as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken."
Certified copy of the deposition given by the defendant in another judicial proceeding can be marked without the defendant being examined, in view of Section 80 of the Evidence Act. The deposition of the defendant can even be marked in the evidence of the plaintiff. The Court shall presume that the document is genuine and that such evidence or statement was duly taken. If that statement purports to be the statement of the defendant and since the Court can presume the genuineness of the deposition, the Court can also presume that the signature therein was put by the defendant. The signature of the defendant in the deposition given by him in another judicial proceeding can be proved not as an admission as such under Section 21 read with Section 17 of the Evidence Act, but by invoking the presumption under Section 80 of the Evidence Act that the evidence and statement were duly taken and that the document is genuine and, therefore, the signature of the maker of the statement contained therein is also genuine.
O.P.(C) NO.953 OF 2010 O :: 12 ::
16. For the aforesaid reasons, the order passed by the court below is set aside. The petitioner shall be permitted to mark the document. If the defendant wants to adduce evidence or if the Court finds that his further evidence is required, the defendant can be further examined in the case. If the defendant is examined, the plaintiff also would be entitled to cross examine him.
The Original Petition (Civil) is disposed of as above.
(K.T.SANKARAN) Judge ahz/