Andhra Pradesh High Court - Amravati
Kovi Venkata Ramanjaneyulu, vs Dama Pulla Rao, on 8 September, 2023
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THE HON'BLE DR.JUSTICE K. MANMADHA RAO
SECOND APPEAL Nos.311 and 310 of 2012
COMMMON JUDGMENT:
Second Appeal No. 311 of 2012 has been filed assailing the
Judgment and Decree dated 16.12.2011, passed in A.S.No.16 of
2009 by the learned Senior Civil Judge, Addanki (in short "the first
appellate court") in confirming the Judgment and decree dated
19.09.2009 in O.S.No.86 of 2004 passed by the learned Principal
Junior Civil Judge, Addanki (in short "trial court)".
Second Appeal No. 310 of 2012 has been filed assailing the
Judgment and Decree dated 16.12.2011, passed in A.S.No.15 of
2009 by the learned Senior Civil Judge, Addanki (in short "the first
appellate court") in confirming the Judgment and decree dated
19.09.2009 in O.S.No.85 of 2004 passed by the learned Principal
Junior Civil Judge, Addanki, (in short "the trial court")
2. The parties will herein after be referred to as they are
arrayed in the Original Suit for the sake of convenience.
3. Since the facts and issue involved in all the Second
Appeals are one and the same, I find it expedient to decide these
matters by a Common Judgment.
4. For the sake of convenience, S.A.No. 311 of 2012 is taken
as leading case.
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5. The appellants herein are the defendants; 1st respondent
is the plaintiff in the suit, who died and his legal representatives were added as respondents 2 to 4 as per orders dated 30.01.2020 in I.A.No.3 of 2019 in S.A.No.311 of 2012.
6. Initially the defendants in the suit borrowed amounts from the plaintiff, agreeing to repay the same with interest at 24% per annum and in consideration thereof, the defendants executed demand promissory note in his favour. Inspite of repeated demands the defendants failed to discharge the same. Hence the plaintiff filed the suit for recovery of the amount due under the suit promissory notes against the defendants.
7. The defendants filed counter denying the suit transaction and contended that they did not subscribe their signatures on the suit promissory note and it is a rank forgery. The defendants never borrowed any amount from the plaintiff, who has no capacity to lead such heavy amount. There are disputes between them and one Koneti Sreenivasa Rao, who is close relative of plaintiff and that they might have colluded and filed the suit for wrongful gain. Therefore the suit is liable to be dismissed.
8. Based on the above pleadings, the trial court eventually framed the following issues for trial:
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(1) Whether the Plaintiff is entitled to claim the suit amount from the Defendants as prayed for?
(2) To what relief?
(B) The following additional Issues No.1 and 2 are framed on 21.07.2009.
(1) Whether the suit pronote dated 25.01.2003 for Rs. 75,000/- is true, valid and executed by the Defendants No.1 and 2?
(2) Whether the suit pronote is brought into existence by forging the signatures of the Defendants No.1 and 2 in the circumstances as pleaded by the Defendants?
9. During the course of trial PWs-1 to 4 were examined on behalf of the plaintiff and Ex.A1 got marked and on behalf of the defendants, Dws-1 to 3 were examined and Ex.X1 document got marked.
10. After thorough enquiry, the trial court holding that the evidence of PWs 1 to 4 are reliable than the opinion of DW-3, therefore Ex.A1 promissory note is true, valid and executed by the defendants and that it is not a forged one as contended by the defendants. Accordingly the suit is decreed with costs.
11. Assailing the said Judgment and decree of the trial court, the defendants therein have preferred an appeal in A.S.No. 16 of 2009. The first appellate court has framed the following points for consideration in the Appeal:
i) Whether the suit pronote is created by forging the signatures of the defendants No.1 and 2 in the circumstances pleaded by the defendants?
ii) Whether the Trail Court rightly observed that the evidence of the Expert DW-3 is insufficient to hold that the suit pronote is forged one?4
iii) Whether the Judgment and decree of the Trial Court dt. 19.09.2009 is liable to be set aside?
12. The First Appellate Court after considering the facts and circumstances of the case dismissed the appeal on merits on 16.12.2011 by confirming the decree and judgment of the trial court.
13. Assailing the Judgment of the First Appellate Court, the appellants herein, who are defendants before the trial court has filed these Second Appeals, seeking to set aside the decree and Judgment of the courts below.
14. This court while admitting the Second Appeal has framed the following substantial question of law, which are as under:-
1. Whether the Courts below acted illegally in not giving appropriate weight to the opinion of the handwriting expert that supported the plea of forgery of promissory note canvassed by these appellants before the lower courts?
15. Heard Mr. S.V.Muni Reddy, learned counsel for the appellants and Mr. V. Hanumantha Rao, learned counsel for the respondents.
16. During hearing learned counsel for the appellants/ defendants would contend that on the basis of evidence on record, the trial court ought to have allowed the appeal, by setting aside the judgment of the trial court, so also the courts below ought to have seen that the opinion of the Expert i.e DW-3 is sufficient to hold that the disputed signatures in Ex.A1 does not belong to the 5 defendants. Further the evidence adduced by the scientific expert and his opinion i.e Ex.X1 cannot be brushed aside by the courts below. The defendant's plea of forgery is totally supported by the opinion of the expert, DW-3, the courts below grossly erred in decreeing the suit. Therefore the findings of the first appellate court are based on mere surmises and the same is liable to be set aside.
17. In support of his contention, learned counsel for the appellants placed on record the decision of this Court in "Thumu Srikanth vs. Akula Babu"1 wherein the learned Single Judge held as follows:
"10. Therefore, the question in each case would be whether any exercise under Section 73 of the Evidence Act by the Court itself will meet the requirements of arriving at the truth and whether obtaining the opinion of an expert in this regard under Section 45 of the Evidence Act would enable the Court to come to a just conclusion".
11. The questions in controversy in the present dispute, as they appear from the material on record, are mainly about the execution of the registered sale deed dated 25-04-2005 by the defendant or not. The plaintiff asserts its execution by the defendant, while the defendant denies the same and the reliefs to which the parties are entitled and the questions in controversy in the suit are solely based on the proof or otherwise of the execution of the document in question....
1 2010(6) ALT 233 6 So also, in "Amarsingh vs. Gangoo"2 wherein learned Single Judge of Madhya Pradesh High Court held as follows:
"6. It is true that the Courts of law are not to play for role of a handwriting or thumb-mark expert but where signature of thumb-mark does not appear to be similar to the one not in dispute the Courts can direct the party placing reliance on the signature of thumb-mark to prove its genuineness by examining an expert; and in other cases where the signature or thumb- mark does not appear to be forged, it is the duty of the defendant, who wants the Court to give a finding to the contrary to prove his case by leading clear evidence including that of an expert".
18. Whereas learned counsel for the respondents reiterated the defence taken before the courts below and vehemently opposed to allow the Second Appeal.
19. Perused the record.
20. The first appellate court made an observation that the trial court discussed the evidence adduced by scientific expert in detail and considered the arguments of the plaintiff's counsel that the expert did not elaborate about "Epediascope" which is the instrument used for enlarging the signatures or thumb impressions. Further the first appellate court observed that trial court came to conclusion that it is not a conclusive piece of evidence and while discussing the evidence of DW-3, the trial court found that the expert deposed certain aspects, which are contrary to the established procedure and did not even specify the exact 2 1956 AIR Bhopal 6; 1955 SCC ONLINE MP 199 7 nature of the instrument used by him and did not consider the enlarged photographs of the questioned and specimen signatures. The expert appears to have not taken the disputed and specimen signatures and admitted signatures, photographs and enlarged for comparison to come to a right conclusion.
21. There is some force in the argument of learned counsel for the appellants and that the decisions submitted by the learned counsel for the appellants, cited supra, it is very specific that under Section 73 of the Evidence Act by the court itself will meet the requirements of arriving at the truth and whether obtaining the opinion of an expert in this regard under Section 45 of the Evidence Act would enable the Court to come to a just conclusion and as the pleadings of the parties have crystallized the questions in dispute and the opinion of the expert will be more helpful to the respective parties in leading appropriate evidence to arrive at just conclusion with the help of such expert opinion, if it is otherwise dependable.
22. Therefore, the opinion of the expert is playing a vital role in the instant case. As could be seen from the evidence of DW-3, who is handwriting expert, who opined that the person who wrote the standard signature S1 to S23 did not write the signature marked 'Q2' and the person who wrote the signatures marked 24 to S.39 did not write the signature marked 'Q4". The decisions 8 relied on by the learned counsel for the appellants in support of his contention that the evidence of expert ought to have been relied on by the court and the reasons were not properly discussed, the evidence of DW-3 is not properly appreciated, as held by the first appellate court. The principle involved in the decisions as per the circumstances discussed in those cases are that the opinion of the handwriting expert has to be taken into consideration and can be relied on with the other evidence, which is rightly answered by the courts below. Further the DW-3 opined that there is possibility of occurring some variations depending upon time gap, the circumstances under which the writings are made, the mental condition of the writer also due to age etc., As per Ex.X1 does not contain the details of any pen lifts, overwriting, over inking has appeared in the questioned signatures, which are likely to occur in case of forgery. Therefore the learned trial court held that the evidence adduced by Expert-DW-3 alone is not sufficient to conclude the signature in Ex.A1 did not belong to the defendant and further the expert did not follow the prescribed procedure and did not give necessary points of similarity or dissimilarity to enable the court to come to a conclusion, the court relied on other evidence on record.
23. In Amarsing's Case (cited supra-2), it is held that the Courts of law are not to play for role of a handwriting or thumb- mark expert but where signature of thumb-mark does not appear 9 to be similar to the one not in dispute the Courts can direct the party placing reliance on the signature of thumb-mark to prove its genuineness by examining an expert; and in other cases where the signature or thumb-mark does not appear to be forged, it is the duty of the defendant, who wants the Court to give a finding to the contrary to prove his case by leading clear evidence including that of an expert.
24. In the instant case, the disputed document sent for expert opinion and the expert was also examined as witness, who examined as DW-3, who stated in the cross examination that there are general similarities are due to imitation and he did not note down his specific observation with reference to specific letters in Ex.X1 and that there is possibility of not only pen lifts, over writings are present, over inking in case of forgery and made some observations and finally opined that the case on hand is a case of imitation forgery or simulated forgery and in his opinion, one requires to go through a model signature in case of simulated forgery.
25. The trial court holds that the evidence of PWs 1 to 4 are reliable than the mere opinion evidence of DW-3, which can be never be treated as conclusive piece of evidence. Therefore, Ex.A1 is true, valid and executed by the defendants 1 and 2 and that it is not a forged one as contended by the defendants. The observations 10 made by the courts below are very specific and finds no impropriety or irregularity in its Judgments. Hence, the Second Appeals are deserves to be dismissed.
26. Since the appellants herein are the defendants before the court below and common issues are involved in the both the suits, though consideration passed was different and plaintiff in the suits are different. Therefore, the discussion made in S.A.No.311 of 2012 is adopted in S.A.No.310 of 2012 also.
27. After close scrutiny of the findings of the both trial court as well as first appellate court, this Court opines that the both Second Appeals are dismissed. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
___________________________________ DR.JUSTICE K. MANMADHA RAO Date:08.09.2023.
KK 11 THE HON'BLE Dr.JUSTICE K. MANMADHA RAO SECOND APPEAL Nos.311 and 310 of 2012 Date: 08.09.2023.
KK