Andhra Pradesh High Court - Amravati
Sri Jami Venkata Rao vs Sri Pydisetti Ramam on 24 March, 2020
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
HON'BLE SRI JUSTICE M.VENKATA RAMANA
SECOND APPEAL No. 1524 of 2011
JUDGMENT :
The Second Appeal is preferred under Section 100 CPC by the defendant.
2. The respondent is the plaintiff.
3. The respondent laid the suit on the foot of a promissory note dated 07.04.2003 stating that the appellant borrowed Rs.1,00,000/- in cash from him on that day for his business purpose agreeing to repay the same with interest at 24% p.a. In evidence thereof, according to the respondent, the appellant had executed the suit promissory note offering to repay the amount due thereunder on demand. Since the appellant failed to repay the amount due, according to the respondent, he was constrained to lay the suit.
4. The appellant resisted the claim of the respondent filing a written statement mainly contending that the suit promissory note is a rank forgery and denying its execution. He further pleaded that he and the respondent were partners in a firm 'Vishnupriya Agencies', which was a distributor of Lipton Tea under a partnership deed dated 05.05.1989 and that this business went on till it was dissolved in the year 2002. The appellant further contended that since he began to flourish in the business of Lipton, which he had taken over from the partnership, the respondent out of jealousy, while proclaiming that the appellant should pay Rs.1,00,000/- towards goodwill, brought out the suit promissory note on account of the disputes cropped up as such. Thus the appellant denied his liability towards the suit claim.
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5. On the pleadings, the trial Court settled the following issues for trial:
"1. Whether the suit promissory note is true, valid and supported by consideration?
2. To what relief?"
6. At the trial, the respondent examined himself as P.W.1, the scribe as P.W.2 and both the attestors to the suit promissory note as P.W.3 and P.W.4 respectively while relying on Ex.A1-suit promissory note, and Ex.A2-a contemporaneous receipt of Ex.A1. The appellant examined himself as D.W.1 and relied on the evidence of handwriting expert viz., CW1 and his report Ex.C2 to support his claim.
7. On the material and the evidence, considering the contentions of the parties, the trial court decreed the suit by its decree and judgment dated 31.12.2008 as prayed. The learned trial Judge rejected the defence version that Ex.A1 is a product of fabrication, while refusing to rely on the opinion of C.W.1-the handwriting expert to the effect that the signature on Ex.A1 attributed to the appellant is dissimilar, suggestive of forgery, when compared with the admitted signatures appearing on two cheques that were subject matter of comparison by him among other documents forwarded for his opinion.
8. The appellant preferred A.S.No.44 of 2009 against the above decree and judgment of the trial Court to the Court of the learned I- Additional District Judge, Srikakulam. In the appeal, under upon considering the material and upon reevaluation, confirmed the findings of the trial Court as well as its decree and judgment by its decree and judgment dated 07.09.2011. The learned trial Judge also relied on oral MVR,J S.A.No. 1524 of 2011 3 evidence let in by the respondent in proof of Ex.A1 promissory note in preference to the opinion of the expert viz., C.W.1 and his opinion in Ex.C1. Both the Courts also considered the effect of Ex.A2 and did not lay any emphasis on it offering proper reasons, particularly when it was never the case of the respondent in the plaint and also considering the fact that P.W.2 to P.W.4 did not refer to the same as a contemporaneous document as of Ex.A1 nor explain the circumstances under which it came into being.
9. Against these concurrent findings and questions of fact mostly and prominently pointing out that a well reasoned report of expert viz., C.W.1 in Ex.C1 was not considered by the courts below, this second appeal is preferred by the appellant.
10. This second appeal was admitted on 19.12.2011, on the substantiating questions of law stated in the grounds of appeal. These substantial questions are as follows:
"a) When there are serious doubt about the trustworthiness and credibility of the witness whether a suit can be decreed ignoring the expert opinion?
b) When the expert considering the signatures of the promissory note and admitted signatures on the vakalat, written statement etc., gives an opinion that the signatures are not one and the same whether the evidence can be ignored and can pass a decree basing on the statement of the attestor and scribe of the pronote?
c) Whether a suit can be decreed when there is doubt regarding the consideration of pronote amount where the same was discharged earlier?"
11. Sri K. Venkat Rao, learned counsel for the appellant, mainly relying on the opinion of the expert in Ex.C1, while referring to his testimony as C.W.1, strenuously contended that the Courts below miserably failed to appreciate that Ex.A1 promissory is an outcome of rank forgery, which is fortified by the evidence let in by the appellant. While MVR,J S.A.No. 1524 of 2011 4 calling the evidence from P.W.1 to P.W.4 being discrepant and that these so called witnesses to the transaction did not corroborate in proving due execution of Ex.A1 in material particulars, it is contended that placing reliance on such testimony is not proper. Particularly laying emphasis with reference to introduction of Ex.A2 at the trial by the respondent of which there is no reference at all at any stage in the suit and the belated attempt made on account of it, it is contended that the testimony of P.W.4 makes out that he was never aware of execution of Ex.A1 and P.W.3 another attestor went to the extent of saying that he signed in Ex.A1 even before consideration was paid to the appellant. Thus pointing out the discrepancies in the evidence, which could not have been taken into consideration by the courts below while rejecting the expert's opinion, it is contended that the defence is clearly established. Thus contending, it is requested to allow this second appeal with costs throughout.
12. Sri T.D.Phani Kumar, learned counsel for the respondent, supported the judgments of both the courts below with reference to the evidence of P.W.1 to P.W.4. While pointing out that the testimony of handwriting expert is a very weak type of evidence it is contended that it cannot have any direct bearing even if Ex.C1 is taken into consideration along with the reasons assigned therein. Thus, referring to the nature of defence set up by the appellant and particularly pointing out the way the defence has been suggested to the respondent when examined as P.W.1 at the trial as if the appellant had also discharged the amount due under Ex.A1, it is contended that this suggestion would demolish the entire defence. Thus mainly contending, the learned counsel for the respondent requested not to interfere with the decree and judgments of both the courts below and to dismiss the second appeal.
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13. The substantial questions of law referred to above revolve around proof of Ex.A1 promissory note by the respondent and its truth as well as validity to bind the appellant. Therefore, the issue, which covers all the three substantial questions of law is-"whether Ex.A1 suit promissory note is true, valid and binding on the appellant?. It shall be discussed hereunder and it being the point for determination predominantly. POINT:-
14. In a suit based on a promissory note, the burden is on the plaintiff to establish its due execution and validity when if the defence is denied of its execution.
15. At this stage itself it is desirable to state that it was never the defence of the appellant that the suit promissory note is not supported by consideration nor he ever admitted its execution nor it was the case of the appellant that he discharged the amount due under the suit promissory note. In second appeal particularly when the plea of discharge of the amount under the suit promissory note is predominantly a product upon evaluation of facts, when it was raised for the first time in the second appeal, it cannot be entertained nor can be considered. Substantial question (c) (of law) set up by the appellant covers the plea of discharge thus sought to be set up by the appellant in this second appeal. It cannot be considered for the above reason and hence it has to be rejected.
16. In order to prove Ex.A1 suit promissory note, the respondent himself examined as P.W.1 and P.W.2 to P.W.4 as already stated. All these witnesses were extensively cross-examined on behalf of he appellant at the trial.
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17. The contents of Ex.A1 are that on 07.04.2003, the appellant borrowed Rs. 1,00,000/- in cash from the respondent, for his business purpose agreeing to repay the same with interest at 24% p.a. on demand. The signature attributed to the appellant is appearing in Ex.A1-promissory note, on the revenue stamps, with date 07.04.2003 under it. P.W.2 is the scribe, P.W.3 and P.W.4 are the attestors respectively to this promissory note as per its contents.
18. The respondent as P.W.1 deposed with reference to its execution, in consonance with his stand in the plaint. His cross- examination for the appellant did not bring out any material as such to reject his testimony. In fact, cross-examination of P.W.1 has brought out certain circumstances surrounding execution of the promissory note. Presence of the scribe as well as attestors including the appellant, is brought out in the cross-examination. Manner of parting consideration in 10 bundles of Rs.100/- denomination currency notes is also elicited in the cross-examination. The version of P.W.1 is also that the printed proforma of Ex.A1 along with the revenue stamps was brought by P.W.2. There is clear reference as to, the way the appellant executed the promissory note subscribing his signature on the stamps pasted to Ex.A1 after counting the cash. It was followed by both the attestors subscribing their signatures and thereafter the scribe.
19. P.W.2-the scribe, clearly corroborated the testimony of P.W.1. In chief examination, he supported due execution of Ex.A1 by the appellant, passing of consideration thereunder and entire transaction covering execution of Ex.A1. Version of P.W.2 elicited in cross-examination did not, in any way differ with this version in examination-in-chief and MVR,J S.A.No. 1524 of 2011 7 thus stood corroborated the testimony of P.W.1. The entire transaction was meticulously spoken to in his cross-examination by P.W.2. He deposed that the respondent paid Rs.1,00,000/- to the appellant after scribing the promissory note whereupon the appellant signed in his presence and so also P.W.3 and P.W.4, following the appellant. Thereafter, according to P.W.2, he subscribed his signature. He further stated that the respondent paid Rs.1,00,000/- to the appellant after he subscribed the signature on the promissory note.
20. The striking feature, which gives a touch of authenticity to the execution of this promissory note, is the date appearing under the signature attributed to the appellant on the revenue stamps in Ex.A1. If it is an incidence of forgery, it is rather difficult to comprehend that a forgerer would go to the extent of bringing out the date of execution under the signature of the purported executant, whose signature he forged. Possibility of confining to such alleged forgery to the signature appearing on the revenue stamps is foreseen and a forgerer would not further take such step or rather invite a risk of subscribing a date under the signature involving unnecessary labour. Possible human reactions reflexes and responses shall always remain the guiding factors in evaluating and appreciating the evidence on record, particularly in the matters of this nature. Therefore, the date appearing under the signature on Ex.A1-promissory note of the purported executant is a sure and definite indicator that the signature should have been subscribed by the person named in Ex.A1 viz., the appellant. The probabilities surrounding appearance of date under the signature attributed to the appellant on the revenue stamps when considered with consistent testimony of P.W.1 and MVR,J S.A.No. 1524 of 2011 8 P.W.2 leaves no manner of doubt that Ex.A1 was indeed executed by the appellant.
21. Further evidence on record through P.W.3 and P.W.4 adds strength to the contention of the respondent with reference to due execution of Ex.A1 by the appellant. Both the witnesses consistently came out with the version supporting P.W.1 and P.W.2 and execution of Ex.A1 by the appellant. The sequence of events covering transaction of execution of Ex.A1 is clearly deposed to by both these witnesses. The contention of the appellant that P.W.4, a stranger to the appellant went to the extent of stating that he did not know about the suit promissory note nor the appellant, in his deposition is not acceptable. A careful consideration of the entire testimony of P.W.4 did indicate that he was present, when the transaction covered under Ex.A1 went on and did witness the execution of the suit promissory note by the appellant. He clearly stated that he was present at the house of the appellant, where this promissory note was executed on 07.04.2003, to attend to a repair of a television and it was at about 7.00 a.m. or 7.30 a.m. The evidence on record makes out that Ex.A1 was executed at about 8.00 a.m. in the house of the appellant and P.W.4 further deposed that by 8.15 a.m. or 8.30 a.m., transaction covered under Ex.A1 including its execution, was completed. He further deposed of handing over cash by the respondent to the appellant in that transaction and subscription of signatures by himself, P.W.3 and P.W.2 to Ex.A1.
22. Similarly, P.W.3 corroborated the version so brought out from P.W.1, P.W.2 and P.W.4. His testimony makes out that he and P.W.1 demanded the appellant 1 ½ year after the date of Ex.A1 to repay the amount due.
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23. Attempt made to attribute interestedness to these witnesses, in the backdrop of their consistent mutually corroborating and acceptable testimony cannot stand.
24. Even the evidence of appellant as D.W.1 makes out that P.W.3 and P.W.4 did not have any animosity against him. It makes out that they were known to him. In such circumstances, it is rather difficult to subscribe to the contention of the appellant that the suit promissory note was an outcome of forgery on account of business disputes between himself and P.W.1.
25. Strong reliance is placed on behalf of the appellant referring to the circumstances relating to introduction of Ex.A2 at the trial and the circumstances surrounding it. According to the respondent, Ex.A2 slip was prepared on 07.04.2003 contemporaneously along with Ex.A1. P.W.1 further deposed that it bears the signature of the appellant. As rightly contended for the appellant, neither there is reference to Ex.A2 in the plaint nor P.W.2 to P.W.4 have deposed in respect of it. It is rather surprising to find that there is no explanation offered by the appellant at the trial in his testimony of Ex.A2. Neither his examination-in- chief refers to nor was he cross-examined on behalf of the respondent on the strength of Ex.A2. Rightly both the courts did not accept Ex.A2.
26. But introduction of Ex.A2, in the circumstances of the case and in the backdrop of the material on record as well as the circumstances under which it was produced at the trial by the respondent, cannot have any bearing in the outcome of the suit. In fact, cross-examination of respondent as P.W.1 on behalf of the appellant indicated that the appellant did not deny borrowing Rs.1,00,000/- on 07.04.2003 from the MVR,J S.A.No. 1524 of 2011 10 respondent. Statement elicited from P.W.1 in cross-examination for the appellant is in the nature of suggestion whereby P.W.1 stated that he paid an amount of Rs.1,00,000/- only once on 07.04.2003 to the defendant. It was followed later by another suggestion which is to the effect that this amount of Rs.1,00,000/- paid on 07.04.2003 by the respondent to the appellant was repaid to him on 23.01.2004. The effect of these two suggestions in the cross-examination of P.W.1, as rightly observed by both the Courts below, is that the appellant did admit that he borrowed Rs.1,00,000/- on 07.04.2003 and which he claimed that he had repaid. When the statement of P.W.1 referred to above itself is indicative of the fact that the appellant had borrowed Rs.1,00,000/- only once on 07.04.2003, it leads to another inference, referrable to transaction under Ex.A1.
27. All these questions of fact are now revisited only to satisfy and consider that the courts below did nor err in drawing such inferences and conclusions on facts.
28. Further this factual back ground is taken into consideration to evaluate the effect of testimony of the hand writing expert viz., C.W.1 and his report in Ex.C1.
29. It is true that C.W.1 then Assistant Director in State Forensic Science Laboratory at Hyderabad examined signatures appearing on Ex.A1 attributed to the appellant and the admitted or undisputed signatures on two cheques dated 01.07.2000 and 20.07.2000 respectively apart from vakalat and written statement and standard signatures obtained in open Court from the appellant for the purpose of this case. These two cheques are referred to in the cross-examination of the appellant on behalf of the MVR,J S.A.No. 1524 of 2011 11 respondent and issuance of these two cheques was also admitted in the cross-examination by the appellant. On such basis, making out certain characteristics relating to "J" and "v", CW1 opined that the signature appearing on Ex.A1 suit promissory note has inherent signs of forgery.
30. While supporting his reasons, this expert as C.W.1 in examination-in-chief referring to Ex.C1, stated that a person may intentionally try to change his signature, while adding that he did not find any type of intentional disguise in the signature appearing on Ex.A1 attributed to the appellant.
31. It is well known that opinion of hand writing expert is a very weak type of evidence and Courts should be slow in acting upon it or rather making the same as sole basis to accept the version of a particular party. In this respect, on behalf of the respondent Channadi Jalapathi Reddy vs. Baddam Prathap Reddy (Dead) through L.Rs. & another1 is relied on. After referring to effect of Sections 45 and 47 of the Indian Evidence Act and earlier decisions covering this field, their Lordships of Hon'ble Supreme Court observed in paras 8 to 10 as under:-
"8. By now, it is well settled that the court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely rely upon such evidence, and the Court may seek independent and reliable corroboration in the facts of a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it. In this respect, reference may be made to a long line of precedence that includes Ramchandra and Rambharosea v. State of Uttar Pradesh, AIR 1957 SC 381, Shashi Kumar Banerjee v. Subodh Kumar Benerjee, AIR 1964 SC 529, Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210, and S.Gopal Reddy v. State of Andhra Pradesh, (1996) 4 SCC 596.
We may particularly refer to the decision of the Constitution Bench of this Court in Shashi Kumar Banerjee (supra), where it was observed that the evidence of a handwriting expert can rarely be given precedence over substantive evidence. In the said Case, the court chose to disregard the 1 . 2019(14) SCC 220 MVR,J S.A.No. 1524 of 2011 12 testimony of the handwriting expert as to the disputed signature of the testator of a Will, finding such evidence to be inconclusive. The Court instead relied on the clear testimony of the two attesting witnesses as well as the circumstances surrounding the execution of the Will.
9. On the other hand, in Murari Lal v. State of Madhya Pradesh (1980) 1 SCC 704, this Court emphasized that reliance on expert testimony cannot be precluded merely because it is not corroborated by independent evidence, though the Court must still approach such evidence with caution and determine its creditworthiness after considering all other relevant evidence. After examining the decisions referred to supra, the Court was of the opinion that these decisions merely laid down a Rule of caution, and there is no legal rule that mandates corroboration of the opinion evidence of a handwriting expert. At the same time, the Court noted that Section 46 of the Indian Evidence Act, 1872 (hereinafter, "the Evidence Act") expressly makes opinion evidence open to challenge on facts.
10. In Alangir v. State (NCT, Delhi) (2003) 1 SCC 21, without referring to Section 46 of the Evidence Act this Court reiterated the observations in Murari Lal (supra) and stressed that the Court must exercise due care and caution while determining the creditworthiness of expert evidence."
32. In the light of the law so enunciated in respect of the evidence of a hand writing expert, particularly having regard to the material on record where the respondent has offered sufficient and acceptable proof of due execution of Ex.A1, contention of the appellant that the testimony of C.W.1 and his report in Ex.C1 shall be accepted, cannot stand. It cannot have any precedence over the evidence on record, particularly in the light of suggestions made to the respondent referred to supra as if the amount borrowed under Ex.A1 was discharged by the appellant. When it has a definite connotation of admission of execution of Ex.A1, the contention so advanced on behalf of the appellant cannot stand.
33. Therefore, basing on the material, in the given facts and circumstances, the substantial questions of law (a) & (b) sought to be canvassed on behalf of the appellant need to be answered that there is no serious doubt much less any, requiring to suspect the testimony of P.W.1 to P.W.4 in proving Ex.A1 nor testimony of C.W.1 along with Ex.C1 takes precedence over the evidence of P.W.1 to P.W.4. Thus, expert opinion MVR,J S.A.No. 1524 of 2011 13 alone cannot be the guiding force in this matter nor it leads to hold that Ex.A1 is a rank forgery.
34. In the backdrop of the evidence on record that there were earlier transactions between the appellant as well as the respondent including exchange of money, it cannot be stated that the alleged disputes or enimical background suggested by the appellant could be the reason to frame out a false claim against the appellant by the respondent. Evidence on record adduced by the respondent is clearly proving that the appellant did execute Ex.A1 upon receiving consideration of Rs.1,00,000/- on 07.04.2003 and thus it is proved being true and valid. Thus, it is binding on the appellant.
35. Thus, these substantial questions of law are answered as well as the point now considered for determination in favour of the respondent and against the appellant. In consequence, the concurrent findings recorded by both the Courts below stand confirmed, since neither questions of fact deserve consideration muchless the alleged questions of law sought to be raised on behalf of the appellant, warranting no interference.
36. In the result, the second appeal is dismissed with costs of the respondent, confirming the decrees and judgments of the courts below.
As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim Orders, if any, shall stand vacated.
________________________ JUSTICE M.VENKATA RAMANA Dt:24.03.2020 RR MVR,J S.A.No. 1524 of 2011 14 HON'BLE SRI JUSTICE M.VENKATA RAMANA SECOND APPEAL NO. 1524 of 2011 Dt:-24.03.2020 RR