Madras High Court
Chandramohan vs Pushpa on 24 February, 2011
Author: G. Rajasuria
Bench: G. Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.02.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.45 of 2011 & M.P.No.1 of 2011 Chandramohan .. Appellant vs. Pushpa .. Respondent This Second Appeal is focussed as against the judgment and decree dated 29.11.2007 made in A.S.No.76 of 2006 on the file of the First Additional District Court, Erode reversing the judgment and decree dated 20.03.2006 made in O.S.No.870 of 2003 on the file of the first Additional Sub-Court, Erode. For appellant : Mr.N.Manokaran For respondent : Mr.A.K.Kumarasamy JUDGMENT
This Second appeal is focussed by the original defendant animadverting upon the judgment and decree dated 29.11.2007 passed in A.S.No.76 of 2006 by the First Additional District Court, Erode, reversing the judgment and decree of the first Additional Sub-Court, Erode in O.S.No.870 of 2003. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. Narratively but precisely, broadly but briefly, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(a) The plaintiff filed the suit for recovery of money based on a promissory note as against the defendant.
(b) The defendant filed the written statement resisting the suit denying the very signatures in the suit promissory note.
(c) Whereupon issues were framed by the trial Court.
(d) The plaintiff-Pushpa examined herself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A5 were marked. The defendant-Chandramohan examined himself as D.W.1 along with D.Ws.2 and 3 and Exs.B1 to B9 were marked.
3. Ultimately the trial Court dismissed the suit as against which the plaintiff preferred appeal. Whereupon the appellate Court decreed the suit. Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the defendant preferred this Second Appeal on various grounds inter alia to the effect that the first appellate Court itself simply held as though he compared the disputed signatures with the admitted signatures of the defendant in the Vakalat, deposition etc. and reversed the finding of the trial Court and decreed the original suit.
4. The following substantial question of law is found suggested in the grounds of appeal:
"(a) Whether the first appellate Court is correct in law in decreeing the suit especially when the defendant has taken the defence that the suit document is a rank forgery and that the plaintiff has not discharged his initial burden of proving the due executing before availing the benefit of legal presumption under section 118 of the N.I. Act."
(extracted as such)
5. After hearing both sides, I am of the considered view that the following substantial questions of law could be framed:
(1) Whether the first appellate Court was justified in comparing the disputed signatures with the admitted signatures of the defendant in the Vakalat and deposition?
(2) Whether the first appellate Court was justified in reversing the judgment and decree of dismissal passed by the trial Court, based on his own interpretation of the evidence and on his own comparison of the signature?
(3) Whether there is any perversity or illegality in the judgment and decree passed by the first appellate Court?
6. All the aforesaid substantial questions of law are taken together for discussion as they inter linked and inter woven with one another.
7. The learned counsel for the appellant/defendant advanced his arguments, the gist and kernel of them would run thus:
The trial Court on finding that the plaintiff did not discharge his burden of proof, correctly dismissed the suit and as against which the first appellate Court was not expected to reverse the finding on his own analysis of the disputed signatures with the admitted post litem motem signatures of the defendant. The first appellate Court exceeded its jurisdiction in doing so warranting interference in the Second Appeal.
Accordingly, the learned counsel for the appellant/defendant would pray for setting aside the judgment and decree of the first appellate Court.
8. In an attempt to torpedo and pulverise the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would submit thus:
There is no rule of law to the effect, that whenever the defendant disputed the signature in a pro note, necessarily the matter has to be referred to the handwriting expert for getting opinion. In this case, no doubt the relatives attested the pro note and they also deposed before the Court. However, the trial Court erroneously disbelieved the same, but the first appellate Court being the last Court of facts correctly believed those witnesses and decreed the suit. Simply because incidentally the appellate Court made comparison of the disputed signatures with the admitted signatures of the defendant in the Vakalat and deposition, the entire judgment would not get vitiated and therefore in the Second Appeal no interference is required.
Accordingly, the learned counsel for the respondent/plaintiff would pray for the dismissal of the Second Appeal.
9. I fumigate my mind with the following decisions of the Hon'ble Apex Court:
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL.
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iii) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL
(iv) (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI] A plain poring over and perusal of those decisions would highlight and spotlight the fact that the Second Appeal cannot be entertained by the High Court as per Section 100 of CPC unless there is any substantial question of law is made out from the available materials on record.
10. This is a case where admittedly the trial Court dismissed the suit based on promissory note, whereupon the first appellate Court instead of re-appreciating the evidence available on record and deciding the lis, went to the extent of exercising his own jurisdiction by invoking Section 73 of the Indian Evidence Act and compared the disputed signature with the admitted post litem motem signatures of the defendant, so to say the signatures in the Vakalat and deposition.
11. The core question arises as to whether the first appellate Court was justified in doing so without applying the principles embodied in the handwriting science?
12. At this juncture, I would like to refer to the decision of the Hon'ble Apex Court reported in (2008) 4 SCC 530 [Thiruvengadam Pillai vs. Navaneethammal and another]; certain excerpts from it would run thus:
"16. When there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal.
17. The decision in Murari Lal and Lalit Popli should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal.
19. The trial court had analysed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first defendant had executed an agreement of sale in his favour. 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 the 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 therefore of the view that the decision of the High Court, reversing the decision of the first appellate Court, does not call for interference."
13. There is also one other decision rendered by me reported in 2008 (3) CTC 470 [Ganapathy Thevar v. Shanmuga Thevar]; certain excerpts from it would run thus:
"14. .......The Court cannot assume the role of an expert in comparing the disputed handwriting with that of the admitted ones. No doubt, the Court as per Section 73 of the Evidence Act, in certain circumstances could exercise its power with caution. In such an event, it is the bounden duty of the Court to specify clearly as to what are the salient features based on which the finding is arrived at.
15. It is common knowledge that the science of analysing the questioned documents contemplates certain principles and theories. Here, both the Courts below were not objective in analysing the impugned handwriting.
16. No carte blanche is given to any Court to simply compare the disputed handwriting with that of the admitted handwritings and arrive at a subjective satisfaction about the similarities and dissimilarities. There should have been reasons set out for arriving at such conclusion, but here, both the Courts below have not resorted to such a procedure. The subjective satisfaction of both the Courts below cannot be taken in favour of the defendant."
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.
15. A very poring over and perusal of the judgment of the first appellate Court would display and demonstrate that he has not at all referred to any of the characteristics found in the disputed signature with that of the admitted signatures, but only based on his subjective satisfaction he rendered the judgment that the disputed signatures in the pro note tally with the post litem motem admitted signatures.
16. The learned counsel for the plaintiff would point out that the first appellate Court has not based its judgment only on such finding but on re-appreciation of other evidence available on record. No doubt, the first appellate Court also referred to the evidence of P.Ws.2 and 3 who are admittedly the relatives of the plaintiff. While observing generally that a relative witness on the ground of relative alone should not be thrown away, yet it has to be seen as to whether such a relative witness withstood the cross examination and if the Court is satisfied about the impartiality and the genuineness of the deposition of such relative witness, then only it could be relied upon. Right from the pre litigation reply notice onwards, the defendant started disputing his signatures and even in the written statement he went to the extent of expressing his inclination to get the expert opinion. However, he had not taken the initiative subsequently on the ground that the burden of proof is on the plaintiff.
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 acknowledgment 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 the 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.
20. Both the parties shall appear before the first appellate Court on 21.03.2011.
21. Accordingly, the first substantial question of law is decided to the effect that the first appellate Court was not justified in comparing the disputed signature with the admitted signatures of the defendant in the Vakalat and deposition.
22. The second substantial question of law is decided to the effect that the first appellate Court was not justified in reversing the judgment and decree of dismissal passed by the trial Court, based on his own interpretation of the evidence and on his own comparison of the signature.
23. The third substantial question of law is decided to the effect that since the first appellate Court failed to take into account the aforesaid points discussed supra, interference in the Second Appeal is warranted.
Accordingly, this Second Appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
gms To
1. The First Additional District Court, Erode.
2. The First Additional Sub-Court, Erode