Kerala High Court
Jyothis Kuries And Loans vs George Jose on 2 July, 2003
Equivalent citations: II(2004)BC36, 2003(3)KLT1157
JUDGMENT K.A. Mohamed Shafi, J.
1. The plaintiff in O.S. 171/92 on the file of the Munsiff's Court, Chavakkad is the appellant in this C.M.A. The Judgment passed by the District Court, Thrissur in A.S.215/93 is under challenge.
2. The appellant filed the above suit for realisation of Rs. 6,000 with interest at 12 per cent per annum from the defendants-respondents herein alleging to be due as per the promissory note alleged to have executed by them in favour of the appellant.
3. The 1st defendant-1st respondent herein contended that the appellant is not a registered partnership firm and the person who verified and signed the plaint is not competent to do so. He also denied the execution of the promissory note and receipt of any amount from the appellant.
4. The trial court decreed the suit as prayed for with costs. The defendants-respondents took up the matter in appeal before the District Court, Thrissur in A.S.215/93. The lower appellate court found that the contention of the respondents that the suit is not maintainable under Section 69 of the Partnership Act is not tenable. The lower appellate court further found that since the respondents denied the execution of the promissory note, the appellant ought to have adduced better evidence regarding the transaction and since they have not produced the account books maintained by them relating to the transaction, the findings of the trial court cannot be sustained. Accordingly the lower appellate court set aside the decree and Judgment passed by the trial court and remanded the case to the trial court for fresh disposal after giving opportunity to both sides to adduce further evidence. The Judgment passed by the lower appellate court remanding the case to the trial court is under challenge in this C.M.A. preferred by the appellant-plaintiff.
5. The 1st respondent-1st defendant in the suit filed written statement denying the execution of the promissory note and passing of consideration thereunder in favour of the respondents.
6. The counsel for the appellant vehemently argued that when the execution of the promissory note is admitted or the same is proved, the burden is upon the defendants-executants of the promissory note to prove that the promissory note is not supported by consideration.
7. The proposition that when the execution of the promissory note is admitted or proved the presumption under Section 118(a) of the Negotiable Instruments Act regarding passing of consideration is available in favour of the plaintiff and the burden is upon the defendant to prove that no consideration under the promissory note is passed, cannot be disputed.
8. In the decision reported in 1990 (1) KLJ 591 (Marimuthu Rounder v. Radhakrishnan) this Court has held that in cases where execution of promissory note is admitted or proved the presumption under Section 118(a) of the N.I. Act is raised and the burden is on the defendant to prove lack of consideration.
9. In the decision reported in 1998 (1) KLT 881 (Bhaskaran Chandrasekharan v. Radhakrishnan) a Division Bench of this Court has held that once there is admission of issuance of a cheque or the same is proved to have been issued, presumption under Section 118 of the N.I. Act is raised that it is supported by consideration and the burden is upon the defendant to rebut that presumption and to prove failure of consideration.
10. Even though in the Judgment passed by the trial court it is stated that the answers given by DW.1, i.e. the 1st defendant during cross-examination revealed that Ext.A2 was executed by the defendants and that they have accepted the consideration thereof, the evidence of DW.1 does not reveal any such fact. A careful reading of the testimony of DW.1 reveals that in spite of the searching cross-examination, he maintained that he has not executed Ext.A2 promissory note and he has not received any consideration thereunder. It is well-settled that even if the signature is admitted by the defendant and execution of the pro-note is denied, the burden is upon the plaintiff to prove the execution of the document. When the signature in a pro-note is denied by the defendant, the burden is upon the plaintiff to prove the execution of the pro-note. Then only the presumption regarding passing of consideration under Section 118(a) of the N.I. Act arises.
11. In this case the plaintiff-appellant have examined PW. 1 to prove the execution of the pro-note and passing of consideration and produced Exts.A1 to A3. The 1st defendant as DW.1 has denied the execution of Ext.A2 pro-note. When DW.1 was in the witness box, he denied the signatures seen in Exts.A1, A2 and A3 when specifically put to him. At the same time he admitted his signatures in Ext.A4(a) acknowledgment and his vakalath. When it was suggested that the signatures seen in Exts.A4(a) and A2 are the same, he said that Ext. A4(a) bears his signature. He denied the suggestion that the signatures in his vakalath and Ext. A2 are the same. But the trial court on comparison of the signatures in Exts.A1 to A and the signatures of the 1st defendant in the written statement filed by him, found that the 1st defendant has put his signature in Exts.A1 to A3.
12. Though the appellant attempted to justify the above finding of the trial court, the counsel for the respondents vehemently argued that on the basis of comparison of the signatures by the trial court which has no expertise in the matter, it cannot be jumped into the conclusion that Ext.A2 pro-note is executed by the 1st defendant without the assistance of an expert or any other aid.
13. In the decision reported in AIR 1980 SC 531 (Murarilal v. State of M.P.) the Supreme Court has observed as follows:
"The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which Judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative text book and the court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the ' court itself compared the writings."
14. In the above Judgment though the Supreme Court held that in certain exceptional circumstances such as where neither side calls an expert, being unable to afford him etc., it is the duty of the court to compare the writings and come to its own conclusion and that duty cannot be avoided by stating that the court is not an expert. It is further held by the Supreme Court that when there is no expert opinion the court will, have to seek guidance from authoritative text books and the court's own experience and knowledge.
15. In the decision reported in AIR. 1979 SC 14 (State v. Pali Ram) the Supreme Court has observed as follows:
"The matter can be viewed from another angle also. 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 form 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."
16. In the decision reported in 1996 (1) KLT 466 (SC) (Bharathan v. Sudhakaran) the Supreme Court following the above dictum laid down in the decision reported in AIR 1979 SC 14 observed as follows:
"It appears that the learned Judge decided the question of void and invalid votes on insufficient materials and evidence in the case. Majority of the witnesses denied that they have voted more than once and they have also denied their signatures in the counterfoils. Under such circumstances, the learned Judge could have summoned documents containing admitted signatures for comparison by an expert and also by comparing them himself. Instead the learned Judge undertook the hazardous task of comparing hundreds of disputed signatures which are not having individual characteristics to set aside the election of the candidate, the appellant herein.
21. The learned Judge in our view was not right either in brushing aside the principles laid down by this Court in AIR 1979 SC 14(Supra) on the ground that it was not a criminal case or taking upon himself the hazardous task of adjudicating upon the genuineness and authenticity of the signatures in question even without the assistance of a skilled and trained person whose services could have been easily availed of. Annulling the verdict of popular will is as much a serious matter of grave concern to the society as enforcement of laws pertaining to criminal offences, if not more. Though it is the province of the expert to act as Judge or jury after a scientific comparison of the disputed signatures with admitted signatures, the caution administered by this Court is to the course to be adopted in such situations could not have been ignored unmindful of the serious repercussions arising out of the decision to be ultimately rendered."
17. In this case the learned Munsiff who has no expertise of knowledge or experience in comparing the disputed writings with the admitted writings compared the disputed signatures in Exts.A1 to A3 and the signatures in the written statement of the 1st defendant and found that they are similar even without noting any of the special characteristics or the similarities in the signatures or referring to any text book or any other aid. Under the circumstances it is not possible to accept the finding arrived at by the trial court by comparing the signatures in Exts.A1 to A3 and the signatures of the 1st defendant in the written statement by himself.
18. The Counsel for the appellant submitted that the court being expert of experts is competent to compare signatures and the finding arrived at by the trial court after comparing the signatures is perfectly justified. In support of his arguments he relies upon the Judgment rendered by a single Judge of the Madras High Court in the decision reported in (2002) 1 MLJ 809. (Boorasamy Naidu v. Kannusamy Naidu and Company). In that case at the instance of the defendant the trial court compared the signatures and decided the suit in favour of the defendant. The lower appellate court decided the case against the defendant and before the High Court the defendant raised the plea that the court should not have compared the signatures. Therefore, in view of the fact that the lower appellate court came to the conclusion that the signatures in the disputed document was that of the defendant, the High Court did not interfere with that finding. The facts in that case are clearly distinguishable from the facts in this case. In this case there is no contention that the court compared the signatures at the instance of the defendant or the plaintiff. But the trial court took that task upon itself. Therefore, the above decision of the Madras High Court has no bearing upon the facts of this case.
19. As already noted the trial court itself took upon itself the hazardous task of comparing the disputed signatures in Exts.A1 to A3 with the signatures of the 1st defendant in the written statement without the aid or assistance of any expert or text book and without even noting any specific or distinctive characteristics or similarities between the signatures, disregarding the caution sounded by the Supreme Court in the decisions referred to above. Hence the finding of the trial court that the signature found in Ext.A2 pronote is that of the 1st respondent cannot be accepted.
20. The appellant is very much aggrieved by the finding of the lower appellate court that since the 1st defendant disputed the execution of Ext. A2 pronote and passing of consideration thereunder, the appellant should have produced the documents in their custody, viz. the account books relating to the transaction to prove their case. The counsel for the appellant vehemently argued that since the presumptions under Section 118 of the N.I. Act are available in favour of the appellant, so long as the respondents discharged the burden of proving failure of consideration, the non-production of the account books maintained by the appellant is of no significance and no adverse inference can be drawn against the appellant for non-production of the account books.
21. The Counsel for the appellant relies upon the decision reported in AIR 1986 Patna 154 (Ram Lakhan Prasad v. Narain Prasad) in support of the above contention wherein a Single Judge of the Patna High Court has observed as follows:
"Both the courts below have decreed the suit of the plaintiff on consideration of a large number of materials on the record. The presumption of passing of consideration under Section 118 of the Negotiable Instruments Act being there, the courts below were not bound to draw adverse inference against the plaintiff for non-filing of the account books. After all, it is an inference of fact to be drawn on various attending circumstances and does not make out a question of law."
22. It is clear from the above decision that the trial court as well as the appellate court decreed the suit in favour of the plaintiff after considering large number of materials on record. In this case only on the mere comparison of the disputed signatures with the signatures in the written statement filed by the 1st defendant the trial court found that execution of the pronote is proved. Moreover, the appellant contended that in view of the finding of the trial court that presumption under Section 118 of the N.I. Act is available in favour of the plaintiff, non-production of the account books is immaterial.
23. But in the present case the finding of the trial court that execution of the pronote is proved and it is supported by consideration is set aside by the lower appellate court and nobody has got a case that any of the parties requested the court to compare the disputed signatures with the admitted signatures of the 1st defendant, nor there is any indication that the court has sought the assistance from any authority of text book or the learned Munsiff had any experience or knowledge in comparing handwritings and signatures. It is also pertinent to note that there is absolutely no indication in the Judgment passed by the trial court regarding the peculiar characteristics or similarities noted between the disputed and admitted signatures compared by the court.
24. Under the circumstances the contention of the appellant that since the execution of the pro note is proved, the presumption regarding passing of consideration under Section 118(a) of the N.I. Act and other presumptions available to the appellant follows and therefore, there is no necessity for the appellant to produce the account books in this case is absolutely unsustainable.
25. In the decision reported in AIR 1976 Calcutta 182 (Peter v. East India Pharmaceutical Works Ltd.) a Division Bench of the Calcutta High Court has observed as follows:
"It is contended by Mr. Bankim Chandra Dutt, learned Advocate appearing on behalf of the plaintiffs that the defendant not having produced the plans an adverse inference should be drawn against them under Section 114(g) of the Evidence Act, even though the onus is on the plaintiffs to prove that the constructions are unauthorised. In support of his contention Mr. Dutt has placed reliance on two decisions of the Supreme Court. The first one is the case of Gopal Krishnaji v. Mohamed Haji Lalif ((1968)3 SCR 862 = AIR (1968) SC 1413). It has been held by the Supreme Court in that case that even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts in issue. In the other decision of the Supreme Court in Virendra Kumar v. Jagjiwan (AIR 1974 SC 1957), an adverse inference was drawn against the respondent in an election petition for his failure to "produce a material witness and the notes made by him at a meeting. The principles of law which have been laid down in the aforesaid decisions of the Supreme Court are well-known. The said principles will apply where a party deliberately withholds from court a material document which is in his possession."
Therefore it is clear that even if the burden of proof does not lie on a party, the court may draw an adverse inference against him if he withholds important documents in his possession which can throw light on the facts in issue.
26. Therefore, considering the fact that in the above case there is dispute with regard to the execution of the pro note and passing of consideration thereunder, the appellant is liable to prove the transaction by adducing the best evidence viz. the account books maintained by the appellant in this case. The lower appellate court by remanding the suit to the trial court after setting aside the decree and Judgment passed by the trial court has afforded an opportunity to the appellant to adduce the best evidence before the trial court. Therefore, the contention of the appellant that the finding of the lower appellate court that the appellant has not adduced the best evidence and the consequential remand of the suit to the trial court for producing the account books is not sustainable, is of no force.
27. Even though the 1st respondent has contended that the suit is barred under Section 69(2) of the Indian Partnership Act and the person who has verified and signed the plaint in this case has no authority to do so, the trial court as well as the lower appellate court found that the suit is maintainable under Section 69(2) of the Indian Partnership Act. The contention raised by the 1st respondent against that finding is not sustainable.
28. Under the circumstances I find absolutely no force in the contention raised by the appellant against the Judgment passed by the lower appellate court setting aside the decree and Judgment passed by the trial court and remanding the suit for fresh disposal to the trial court after affording opportunity to both sides to adduce further evidence. Hence the appeal is dismissed.
The parties will appear before the trial court on 4th August, 2003. The Registry is directed to send the records to the trial court forthwith. The trial court is directed to dispose of the suit within three months of the receipt of records from this Court.