Madras High Court
M. Kaliamoorthy vs Dhanuskodi on 10 October, 2014
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10 10 2014 Coram: The Hon'ble MRS. JUSTICE PUSHPA SATHYANARAYANA Second Appeal Nos. 741 to 744 of 2006 and M.P. Nos. 1 of 2006 (4 petitions) in the above S.As. M. Kaliamoorthy .. Appellant in all S.As. vs. Dhanuskodi .. Respondent in all S.As. Appeals filed under Section 100 of the Civil Procedure Code, against the common judgment and decree dated 03.11.2005 passed in A.S. Nos. 27, 30, 29, and 28 of 2005 on the file of the Principal District Judge, Cuddalore, confirming the common judgment and decree dated 31.12.2004 passed by the Subordinate Judge, Panruti, in O.S. Nos. 22 of 1998, 233 of 2006, 38 of 1997 and 79 of 1998 respectively. For Appellant in all S.As. : Mr. S.R. Sundar For Respondent in all S.As. : Mrs. R. Meenal Judgment reserved on 16.9.2014 COMMON JUDGMENT
Since the subject matter and the parties involved in these Second Appeals are inter-connected, they are disposed of by this common judgment.
2. From the materials available on record, it is seen that the defendant borrowed various amounts, viz., Rs.75,000/-, Rs.80,000/-, Rs. 80,000/- and Rs.75,000/-, from the plaintiff on 06.3.1995, 01.12.1993, 01.6.1994 and 09.7.1995 respectively, agreeing to repay the same on demand, together with interest and executed promissory notes. But inspite of repeated demands and notices, the defendant had not paid the amount but issued reply with false allegations. Hence, the plaintiff filed the above said suits. On the other hand, the defendant resisted the suits denying all the allegations raised by the plaintiff. The case of the defendant is that the signatures found in the suit promissory notes are forged and sought for dismissal of the suits.
3. A joint trial was conducted by the trial Court before which the plaintiff examined himself as P.W.1 along with P.W.2 to P.W.6 and marked Exs. A.1 to A.9. To nullify the case of the plaintiff, the defendant examined himself as D.W.1 besides examining one Jayadevi, Handwriting Expert, as D.W.2 and marked Exs. B.1 to B.10. Exs. C.1 to C.8 were marked as Court documents.
4. The trial Court, after an elaborate trial, on consideration of the materials available thereon as well as the depositions of the witnesses, finding that the promissory notes are true and genuine, decreed the suits as prayed for. Aggrieved by the above decision, the defendant preferred appeals in A.S. Nos. 27, 30, 29, and 28 of 2005 respectively before the Principal District Judge, Cuddalore. The Lower Appellate Court, on appreciation of the materials and the evidence as well as the facts and circumstances of the case, concurred with the finding of the trial Court and dismissed the Appeals. Feeling aggrieved, the defendant has preferred the instant Second Appeals.
5. At the time of admission of these Second Appeals, the following substantial questions of law were framed for consideration:
(a) Whether the Lower Appellate Court is justified in dismissing the appeal suit without ordering for comparison of signature of the appellant to the signatures made during the relevant period.
(b) Whether the Lower Appellate Court is right in ignoring the relevant fact of variations in signature as contemplated under Section 45 of the Evidence Act and when more so the Lower Courts should have been hesitant to base its finding with regard to the identity of on the alleged promissory notes solely on comparison by taking recourse of Section 73 of the Evidence Act.
(c) Whether the Lower Appellate Court is correct in rejecting the report of the handwriting expert on the ground the expert was not well versed in Tamil?
(d) Whether the Courts below were right in comparing the handwriting without the assistance of an expert, despite the judgment of the Supreme Court in O.Bharathan vs. K.Sudhakaran (1996) 2 SCC 704 and Delhi Administration vs. Pali Ram, AIR 1979 SC 14?
(e) Whether the Courts below were right in placing reliance in the interested evidence of the plaintiff as against that of the independent expert?
(f) Whether the Court below failed to compare the disputed documents with that of the admitted one in the documents which came into existence prior to the filing of suit as laid down in 2003 (1) MLJ 637 in Marappa Gounder vs. Kandasamy and followed in 2006 (2) CTC 201?
6. Heard Mr. S.R. Sundar, learned counsel appearing for the appellant / defendant and Mrs. R. Meenal, learned counsel for the respondent / plaintiff in all the Appeals and perused the records.
7. The case of the plaintiff, as set out in the plaints, is that the defendant executed the suit promissory notes on 06.3.1995, 01.12.1993, 01.6.1994 and 09.7.1995 respectively after borrowing a sum of Rs. 75,000/-, Rs.80,000/-, Rs.80,000/- and Rs.75,000/- respectively and for recovery of the same, the suits have been filed.
On the contrary, the defendant had alleged that one Raju Padayachi, his father-in-law, is instigating the plaintiff to sue against him. The unassailable facts are that the plaintiff is the brother-in-law of the defendant's father-in-law and the attestor in all the four promissory notes is one Vijayakumar, who is the nephew of the defendant.
8. From the materials available on record, it is seen that the defendant / appellant has alleged forgery of the documents. Therefore, the burden is on the plaintiff to prove the execution of the pro-notes. In the process of trial, besides examining himself as P.W.1, the plaintiff examined one Vijayakumar, attester as P.W.2 while the scribe of Ex. A.1 was examined as P.W.3 and the scribe of Ex. A.4 was examined as P.W.4. P.W.5 was the scribe of Ex. A.7 and P.W.6 was the scribe of Ex. A.8. The Courts below, after elaborate discussion, had found that no intention of forgery could be attributed to the plaintiff as it would not be possible to secure four witnesses and scribes at the time of execution of pro-notes. The defendant also had not alleged any previous enmity between him and the plaintiff which lead to the creation of the pro-notes. On the other hand, the defendant only had specifically pleaded that it was his father-in-law Raju Padayachi, who had instigated the plaintiff to foist a case against him. Both the Courts below had concurrently held that the contention of the defendant about the vengeance carried by his father-in-law, is unacceptable and held against the defendant.
9. The next contention raised by the learned counsel for the appellant / defendant was that the plaintiff could not have got four pro-notes executed consecutively when the first pro-note itself was not discharged. The parties being closely related, the lending should have been based on trust and the same cannot be normally doubted.
10. Insofar as passing of consideration is concerned, which onus lies on the defendant, it was contended by the learned counsel for the appellant / defendant that the plaintiff had no wherewithal to lend such amount and that the defendant himself was engaged in money lending business. In support of his contention, learned counsel placed reliance on Exs. B.1 to B.4 which are discharged pro-notes in his favour and Exs. B.5 to B.7, decrees for recovery of money in various suits in favour of the defendant. On this score alone, the Courts below struck the same note holding that the financial need of the defendant cannot be assessed from the said documents. In the above factual matrix, the Courts below concurrently held in favour of the plaintiff and decreed the suits as prayed for.
11. It is further seen from the materials available on record that as the defendant had contended that the suit pro-notes were all forged, he had sought for the help of handwriting expert to prove the suit pro-notes as forged ones. The expert had also filed her report. However, the Lower Appellate Court had held that the expert had not considered the principle of 'ante litem motam' while collecting the sample signatures of the defendant for comparison. The learned counsel for the respondent contended that the signatures compared with admitted signatures are post litem motam and hence, the opinion of the expert cannot be accepted. The handwriting expert had given separate reports for each of the four promissory notes. Exs. C.1 to C.4 are the reports of the expert relating to Exs. A.1, A.4, A.7 and A.8 promissory notes resepctively wherein she has opined report that the signatures found in the pro-notes are forged as they do not tally with the signatures found in vakalat and written statement. However, the Lower Appellate Court rejected the same on the ground that the expert was not conversant with Tamil language in which the signatures were affixed. The Lower Appellate Court also made a comparison on its own and found that there are natural variations between the admitted signatures of the disputed signatures. However, as only signatures post litem motam were compared and the expert was not well versed in Tamil language, the reports of the expert were not considered.
12. In this regard, learned counsel for the appellant placed his reliance on the decision in Parbati Sham Achary vs. Smt. Manasi Devi [AIR 1977 Orissa 139] wherein in paragraph 10, i has been observed as follows:-
With regard to the findings of the courts below regarding the genuineness of the deed of agreement Ext. 5 it is urged on behalf of the appellant that no value should be attached to the opinion of the handwriting expert as he is not acquainted with the Telugu language in which the disputed signature of the defendant has been written on Ext. 5. The expert (P. W. 11) admitted in cross-examination that he cannot read, write or speak Telugu. But he gave cogent reasons for his opinion that the disputed signature and the admitted signature were written by one and the same person. The opinion of the expert is admissible under Section 45 of the Indian Evidence Act. What value is to be attached to that opinion in a given case is, however, an entirely different matter. It has been repeatedly held that expert's opinion with respect to handwriting must always be received with care and caution. In AIR 1936 All 165 (Saqlain Ahmad v. Emperor) one Mr. Stott was the handwriting expert who examined some documents written in Urdu language. He admitted that he was not acquainted with the Urdu characters. The court held: "this will not however make him incompetent as an expert in handwriting but he is undoubtedly not possessed of an advantage which one well familiar with the Urdu characters has in comparing two writings in their general style and characteristics." In the instant case, the opinion of the expert is confirmed by the direct evidence of witnesses who have borne testimony to the fact that the defendant gave his signature on Ext. 5 in their presence. Where the expert's opinion is confirmed by the direct evidence of persons who had actually seen the signing of the document, there is no reason to entertain any doubt about the same. P. W. 5 is the scribe of the document. P. Ws. 6 and 7 are the attestors. P. W. 19 is the plaintiff's husband in whose favour the document was executed. All these witnesses swear on oath that the signature of the defendant was written in their presence. P. W. 8 is a relation of the defendant and he is a Telugu knowing man. He Identified the disputed signature on Ext. 5 as belonging to the defendant. The findings of the Courts below is based upon the evidence of those witnesses and also upon the opinion of the expert. I see no reason why the finding about the genuineness of the document Ext 5 should be set aside.
13. Learned counsel for the appellant also placed reliance on the decision of the Hon'ble Apex Court in O. Bharathan vs. K. Sudhakaran [(1996) 2 SCC 704] wherein Their Lordships in paragraph 20 of the judgment, held as follows:-
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. To quote, it has been held in AIR 1979 SC 14 (supra) :
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 identify of a handwriting which forms the sheet-anchor of the prosecution case against a person accused or 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. Applying the above principle, this Court is of the opinion that the Lower Appellate Court was wrong in comparing the signatures when the prudent course is to obtain the opinion of an expert.
15. Another aspect highlighted by the learned counsel for the appellant was that the Courts below failed to invoke Order 26 Rule 10A of CPC, in support of which, he seeks in aid of the decision of this Court in S. Chinnathai vs. K.C. Chinnadura [2010 1 L.W. 646] wherein in paragraph 11, it has been held as follows:-
In the judgment reported in AIR 1928 Privy Council 277 (Kessarbai Vs. Jethabhai Jivan), it has been held that the mere comparison of admitted signatures without expert advice or microscopic examination is dangerous. In the judgment reported in 1996 (2) SCC 704 (O. Bharathan Vs. K. Sudhakaran and Another), the Hon'ble Supreme Court has held that the Court itself should not compare the disputed signatures without the assistance of any expert when the signatures with which the disputed signatures are to be compared are themselves not the admitted signatures. Similarly, in the judgment reported in 1997 (1) MLJ 304 (Kothandapani Padayachi Vs. Ranganatha Padayachi and Others), the Hon'ble High Court has held that it is advisable to have an assistance of handwriting expert and the court shall be slow in venturing on an opinion on the basis of mere comparison. In the judgment reported in 1997 (2) MLJ 37 (Dhanakodi Padayachi Vs. Muthukumaraswami), the Hon'ble High Court has again held that the Court shall not compare the disputed and base its conclusion thereon.
16. From a mere reading of the above extracted portion of the judgment, it is evident that Order 26 Rule 10A of the CPC specifically clothe the Civil Court with power to do scientific investigation which includes the power to send the document to an expert warranting a report. Hence, it was urged by the learned counsel for the appellant that the Court ought to have appointed a Commissioner to take the disputed document to a forensic expert and the Lower Appellate Court ought not to have taken the role of an expert.
17. In fact, in the given cases, it is seen that neither the trial Court nor the Appellate Court directed the appellant / defendant to give his specimen signature ante litem motam for comparison by the expert.
18. Similarly, in The State (Delhi Administration) vs. Pali Ram [(1979) 2 SCC 158, the Hon'ble Supreme Court in paragraph 30, observed as under:-
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 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.
19. In view of the ratio laid down in the above decisions, I am of the view that the Lower Appellate Court may be directed to obtain the specimen signatures of the defendant, which the learned counsel was seeking to file as additional document, so as to enable a handwriting expert to compare the same with the disputed signatures on the suit pro-notes, viz., Ex. A.1, A.4, A.7 and A.8 . Accordingly, the Lower Appellate Court is directed to obtain the specimen signatures of the defendant and the handwriting expert is directed to compare the disputed signatures with that of the admitted signatures of the defendant thereafter. It is open to the defendant to take out an application under O.26 R. 10A CPC to appoint a Commissioner to take the documents for such comparison by the expert of Forensic Department. The Lower Appellate Court is directed to provide for sufficient safeguards for taking the disputed documents or summon the expert to the Court to do the exercise of comparison.
In view of the foregoing discussion, the matter is remitted back to the Lower Appellate Court for carrying out the above said direction and dispose of the appeals after getting the expert opinion and upon hearing both sides on the basis of such opinion of the expert. In view of the above, the appeals are allowed setting aside the judgment and decree passed by the Courts below and the same are remitted back to the Lower Appellate Court for fresh disposal, without being influenced by any of the opinion expressed by this Court, within a period of three months from the date of receipt of a copy of this judgment. However, in view of the circumstances of the case, there shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.
10 10 2014 Index : Yes Internet : Yes Note to Registry:-
Registry is directed to send back the records to the Lower Appellate Court immediately gri PUSHPA SATHYANARAYANA, J.
gri To
1. Principal District Judge Cuddalore
2. Subordinate Judge Panruti
3. The Record Keeper V.R. Section High Court Madras Pre-delivery Common Judgment in S.A. Nos. 741 to 744 of 2006 Delivered on 10 10 2014