Madras High Court
Kannamma vs P.Sagunthala on 2 November, 2017
Author: D.Krishnakumar
Bench: D.Krishnakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.11.2017 CORAM THE HONOURABLE MR. JUSTICE D.KRISHNAKUMAR S.A.No.50 of 2012 Kannamma ... Appellant Vs P.Sagunthala ... Respondent Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 12.04.2011 made in A.S.No.69 of 2010 on the file of the Principal District Judge, Erode, confirming the judgment and decree dated 25.02.2010 made in O.S.No.43 of 2010 on the file of the Subordinate Judge, Sathyamangalam. For Appellant : M/s.Sahse for Mr.M.Guruprasad For respondent : Mr.N.Manokaran J U D G M E N T
The Brief facts of the case as follows:
The respondent/plaintiff has filed the suit in O.S.No.103 of 2006 for the recovery of Rs.2,65,000/- along with future interest. According to the respondent/plaintiff, the appellant/defendant has executed a promissory note for Rs.2,00,000/- in favour of the respondent/plaintiff under Ex.A1. The respondent/plaintiff has issued notice under Ex.A2 to the defendant and the same was returned as intimation given. The present suit has been filed in O.S.No.103 of 2006 before the Sub-Court, Gopichettypalayam. Subsequently, the aforesaid suit was transferred to Sub-Court, Sathyamangalam and re-numbered as O.S.No.43 of 2010. The appellant/defendant has filed a written statement wherein he specifically denied the execution of the pro-note marked under Ex.A1. The appellant/defendant has filed an application in I.A.No.206 of 2008 before the trial court to send Ex.A1 suit promissory note for expert opinion to prove the signature contained in the said document was forged by the plaintiff. The said application was dismissed. Challenging the aforesaid order, the appellant/defendant has filed the revision petition in C.R.P.(PD).No.156 of 2009 before this Court. By order dated 29.06.2009, the civil revision petition was dismissed by this Court, by citing various decisions of the Hon'ble Supreme Court as well as this Court and held that it is not the duty cast on the revision petitioner to prove the document as executed. According to the learned counsel for the petitioner, the burden lies on the plaintiff to prove her case. Plaintiff herself admitted during cross examination that the signature under Ex.A1 is not belong to the defendant. Further, there is no other witnesses on the side of plaintiff to prove the execution of the pronote. Further, the appellant/defendant also relied upon the decision of the Hon'ble Supreme Court as well as this Court, that the burden of proof lies on the plaintiff, and not on the appellant/defendant. Therefore, the judgment and decree passed by the court below is liable to be set aside.
2. Per contra, the learned counsel for the respondent/plaintiff would relying upon the evidence of PW1 Sakunthala and PW2 namely Sivakumar. According to the learned counsel for the respondent, the trial court has considered the evidence of PW2, wherein, it is clearly deposed that the defendant Kannamma has received money and signed the pronote and also she deposed the date, place and time in the pronote. Further, it is also the contention of the learned counsel for the respondent that the defendant in her deposition before the Court denied her signature found in the sworn statement, written statement and also Ex.A1 pronote. Therefore, the trial court come to the conclusion that D.W.1 made inconsistent statement before the Court. On the basis of the evidence adduced by PW2 and DW1, the trial court has decreed the suit and the appellate court has also considered the evidence of both parties and held that the signature found in the pronote has proved is that of the defendant and the aforesaid appeal suit was dismissed.
3. At the time of admission of civil revision petition, this Court has framed the following substantial questions of law:
1. Whether the Courts below have committed an error in assuming that the suit promissory note bears the signature of the defendant when there is a specific denial that the signature found in the suit promissory note is not that of the defendant and in casting the burden on the defendant to prove her defence plea ?
2. Whether the Courts below have committed an error in not considering the effect of failure on the part of the plaintiff to take steps to have the signature found in the suit promissory note compared with the admitted signature with the help of a Hand Writing expert, especially in the light of the fact that the Civil Revision Petition arising out of the Interlocutory application filed by the defendant for referring the disputed and admitted documents for the opinion of a Hand Writing expert was dismissed based on the observation that it was for the plaintiff to prove the signature in the disputed document and due execution of the disputed document and the burden of disproving the same could not be cast on the defendant ?
4. The learned counsel for the appellant M/s.Sahse, has contended that the court below has committed serious error by not considering a specific denial of the signature of the appellant in the pronote under Ex.A1, it is for the plaintiff/respondent herein to prove the signatures found in the pronote under Ex.A1. However, the appellant/defendant has filed an application to send Ex.A1 signature for expert opinion. By order dated 29.06.2009 in C.R.P.(PD).No.156 of 2009, this Court has observed that it is not for the revision petitioner to prove the negative. The respondent/plaintiff has to prove her case on the basis of the evidence produced by her and not on the account of the weakness of the defence. Therefore, it is clear from the aforesaid judgment, the burden of proof is on the respondent/plaintiff to prove the genuineness of the signature found in the promissory note in the said suit. On perusal of the deposition of PW1, wherein PW1, in her cross-examination has stated as follows:-
''jhth g[nuh nehl;il vGjpa ehsd;W gpujpthjp vd; tPl;ow;F tutpy;iy vd;Wk; vd;id re;jpf;ftpy;iybad;Wk; brhy;tJ rhpay;y/ g[nuh nehl;oy; fz;l ifbahg;gk; gpujpthjpapd; ifbahg;gk; my;y vd;w tpguk; vdf;Fj; bjhpa[k;/ nkw;go kDtpw;F ehd; Ml;nrgid bra;J nkw;go kD js;Sgo bra;ag;gl;lJ/ Vd; Ml;nrgid bra;njd; vd;why; ifbaGj;ij gpujpthjpjhd; nghl;lhh;/ mjw;fhd Fwpg;gpl;l fhuzj;ij brhy;y KoahJ/''
5. Further, she deposed in her evidence that ''g[nuh nehl;oy; butpd;a[ !;lhk;g[ rhpahf xl;lg;gl;oUe;jjh vd;why; ehd; rhpahf ftdpf;ftpy;iy/ g[nuh nehl;oy; fz;l thrf';fs; ifbaGj;Jf;fs; midj;Jk; xnu ik ngdhtpdhy; nghlg;gl;lJ vd;why; rhpjhd;/ g[nuh nehl;L vGjpa fy;ahz Re;juj;jpd; ngdhit th';fpjhd; vy;nyhUk; ifbaGj;J nghl;lhh;fs;/ jhth g[nuh nehl;oy; Kjypy; rptf;Fkhh; ifbahg;gk; bra;jhh;/ gpd;dpl;L Fznrfh; ifbahg;gk; nghl;lhh;/ mjw;F gpd;dpl;L g[nuh nehl;il vGjpath; ifbaGj;J bra;jhh;/ Fznrfh; ifbaGj;J nghl;l gpd;g[ fy;ahz Re;juk; ifbaGj;J nghl;lhh;/ gpujpthjp rhl;rpfs; Kd;g[ itj;J gzk; th';fp bfhz;L ifbahg;gk; bra;J gpujpthjp !;lhk;gpd; kPJ xU ifbaGj;Jk;. !;lhk;gpw;F fPH; xU ifbaGj;Jk; nghl;lhh;/ gpujpthjp g[nuh nehl;oy; ifnuif bra;atpy;iy/''
6. In the cross examination, PW1 has stated as under:-
''jhth g[nuh nehl;L vd;tPl;oy; btsp U:kpy; itj;J vGjg;gl;lJ/''
7. The appellate Court without properly scrutinising the evidence of the plaintiff's side as well as defendant's side, simply accepted the reasons stated by the trial court, by stating that the defendant has not proved that the aforesaid transaction taken place only for the chit transaction between the parties.
8. Heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the materials available on record.
9. On perusal of the evidence of DW1 shows that she denied the signature found in the pronote and also denied the signature found in the written statement filed by the defendant and also in her sworn statement.
10. The learned counsel for the appellant has relied upon the decision of this Court in the case of T.Balasubramanian v. M.Kanthasamy reported in 2013-1-LW-938 in paragraph No.10, it reads as follows:
''10. I would like to re-collect and call up the judgment of the Hon'ble Apex Court reported in 2010(8) SCC 452 = 2010-5-L.W.1[Kapil Corepacks Private Limited and others vs. Harbans Lal (since deceased) through Lrs.] Certain excerpts from it would run thus:
''23. In this case the appellant-defendants denied having signed/executed any agreement/receipt in favour of the respondents. In the examination under Order 10 Rule 2, the Court did not ask the second appellant whether he had signed the document or not, by showing the document. What was done was confrontation of a signature alone without disclosing the document. When so confronted, the second appellant admitted the signature shown as his signature. But that is not an admission of execution of agreement/receipt. ......'' The practice of getting only the signature portion marked in a document hiding the rest of the portion of the document is deprecated. If at all any signature has to be got marked, then the entire document should be shown to the witness concerned. But, in this case, that was not done. Over and above that, Order 8 Rule 1-A(3) of the Code of Civil Procedure would contemplate that any document, if the defendant is to file, it should be filed along with the written statement as otherwise only with the permission of the court, such document could be filed. No doubt, I am fully aware of the fact that during cross examination, certain portions could be marked by the opponent under Section 145 of the Indian Evidence Act provided the witness admits it. In this case, only the signature was admitted and that too the signature was got marked in a non-legal manner, which I would deprecate that such a practice should not be adhered to by courts.''
11. The learned counsel for the appellant also relied upon the decision of this Court in the case of Chandramohan v. Pushpa reported in (2011) 7 MLJ 160, wherein, paragraph Nos.14, 17 to 19 are as follows:
''14. Here, the first appellate Court has not even chosen to place reliance on any contemporaneous admitted signature of the defendant or admitted anti litem motem signature of the defendant, but only on the post litem motem signatures of the defendant in the Vakalat and deposition and that itself is ex facie and prima facie untenable.
....
17. Be that as it may, in view of the fact that the defendant is very particular in insisting upon the plea of denial of the purported signatures in the pro note and that the first appellate Court has committed an error in simply arriving at the subjective satisfaction relating to the disputed signatures as already highlighted supra, I am of the view that for the purpose of deciding the lis on a better footing, obtention of the expert opinion is very much required in this case. However, both the parties should bear the cost for getting such expert opinion.
18. Hence, in this view of the matter, I am of the considered view that the matter should be remitted back to the first appellate Court. Ultimately the judgment and decree of the first appellate Court are set aside and the matter is remitted back to the first appellate Court to send the disputed signature to the handwriting expert for getting the opinion. The defendant is enjoined and mandated to furnish before the first appellate Court his contemporaneous signature or his anti litem motem signature found in an authenticated manner in some document and submit it before the first appellate Court. Whereupon, an advocate Commissioner shall be appointed:
(a) To carry the relevant documents in connection with this case personally in a sealed cover;
(b) and produce the same before the Forensic Expert;
(c) leave it in his custody under his acknowledgement for as many days as the Forensic Expert may require.
(d) collect the record from the Forensic Expert on the day as may be fixed by him;
(e) bring it back and lodge it with the Court.
The Forensic Expert is directed to complete the examination of the records in any event, within 48 hours after depositing of the same by the Advocate Commissioner with him.
19. After getting such opinion from the Forensic Expert, both sides should be given opportunity to file objections, if any, and after hearing both sides, the matter shall be disposed on merits untrammeled and uninfluenced by any of the observations made by this Court in deciding this Second Appeal.''
12. The learned counsel for the respondent relying upon the decision of the Hon'ble Supreme Court in the case of Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm and others reported in (2008) 7 SCC 655, wherein paragraph Nos.16, 17, 20 and 22 are as follows:-
''17. ............. From the above decision of this Court, it is pellucid that if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would dis entitle him to the grant of relief on the basis of the negotiable instrument. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour.
20. In the written statements, the plea of the respondents was that on the face of the pronotes, no cash was paid by the appellant and therefore, the respondents were not liable to pay the amount because the pronotes were forged. It was a finding of the trial court, which was affirmed by the High Court in the impugned judgment that the pronotes were indeed executed by the respondents. It was also a finding of the High Court that except in the reply notice issued by the respondents, nowhere had they stated that the consideration had not passed. It is also an admitted position that the findings of the two courts below was that the execution of the pronotes having been proved, the presumption under Section 118(a) must come into play and the appellant must be entitled to a decree in the absence of evidence to the contrary. Having said this, the High Court proceeded to observe that if there was evidence inconsistent with the presumption under Section 118(a) of the Act, the court would not be in a position to pass a decree in favour of the appellant on the basis of the presumption and therefore, proceeded to examine the evidence of the appellant in extenso.
22. It is an admitted position that the finding as to the execution of the pronotes had become final. Also, we are of the view that the respondents had not discharged the initial burden of proving the non-existence of consideration either by direct evidence or by preponderance of probabilities. The mere denial, if there be any, by the respondents that no consideration had passed would not have been sufficient and something probable had to be brought on record to prove the non-existence of consideration. In this view of the matter, we are, therefore, of the view that once the execution of the pronote has been proved, the appellant would be entitled to the benefit of the presumption under Section 118(a) of the Negotiable Instruments Act because the respondents had failed to discharge the initial burden and therefore, the High Court was in error in appreciating the evidence of the appellant to come to the conclusion that since such evidence was inconsistent with the pronote being Ex.A-21, the appellant could not be given the benefit of the presumption.''
13. In the aforesaid judgment, the Hon'ble Supreme Court has held that once the execution of pronote has been proved, the appellant would be entitled to the benefit of the presumption under Section 118(a) of the Negotiable Instruments Act, because the respondents had failed to discharge the initial burden and therefore, the decisions in the aforesaid judgments where the respondent/plaintiff has proved the execution of the pronote without any doubt, whereas in the case in hand, the respondent has stated that the signature found in the pronote is not belonging to the defendant and also PW2, in his deposition has stated that he was not aware that whether the defendant has signed the pronote. The execution of the pronote has not been proved by the respondent/plaintiff. In Thiruvengadam Pillai v. Navaneethammal and Another (2008) 4 SCC 530, the Hon'ble Supreme Court has held as under:-
''17. ..... The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial Court and High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of PWs 1 to 3. We are therefore of the view that the decision of the High Court, reversing the decision of the first appellate Court, does not call for interference.''
14. Following the aforesaid judgment, this Court has decided in the case of P.Stanley Buck Vs. D.Govindaraj reported in (2009) 7 MLJ 908. Considering the facts and circumstances of the case and in the light of the judgments cited supra, the substantial questions of law framed by this Court is answered in favour of the appellant and the judgment and decree passed by the appellate court is liable to be set aside and therefore, this Court is inclined to pass the following orders:
(i) The judgment and decree passed by the appellate Court in A.S.No.69 of 2010 on the file of the Principal District Judge, Erode, is set aside and remitted back to the appellate Court to consider afresh in accordance with law within a period of four months from the date of receipt of a copy of this order.
(ii) The appellant is permitted to file an application before the first Appellate Court along with the contemporaneous documents prior to Ex.A1 or to the satisfaction of the appellate Court to send the disputed signature marked under Ex.A1 to the Hand Writing Expert for getting his opinion within four weeks from the date of receipt of judgment.
(iii) The appellate court is directed to consider the said application and pass orders on merits and in accordance with law and thereafter dispose of the Appeal Suit in accordance with law.
In view of the facts and circumstances, this second appeal succeeds and the same is allowed. No costs.
02.11.2017 Index:Yes / No Speakin/Non-Speaking order ssn To
1. The Principal District Judge, Erode.
2. The Subordinate Judge, Sathyamangalam.
D.KRISHNAKUMAR, J., ssn S.A.No.50 of 2012 02.11.2017