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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. JEYAPAUL
Venkatachalam
Versus
Govindan Chettiar
Second Appeal No.246 of 1996
Decided on : 19-11-2009
The witnesses PW2 to PW4, scribe and the attesting have not spoken to regarding the execution of Ex-A1 and Ex-A2 by the defendant. The passing of the consideration were not also deposed by the defendant. It is pertinent to note that the note Ex-A2 was allegedly executed exactly one year from the day Ex-A1 was executed, same scribe and attesting witness have been employed. The PW2 had come forward with a false deposition that the defendant had put his signature with the pen used by the scribe. Upon a comparison with the ink used for scribing the documents Ex-A1 and EX-A12 and that of that ink used for putting the signature of the defendant, it is found that, different ink pen is used for scribing the documents, Ex-A1 and Ex-A2, from that of the ink pen used to put the signature of the defendant. It is the version of the PW2 that PW3 and PW4 arrived at the place where exhibits Ex-A1 and Ex-A2 were being executed accidentally and put their signatures in the capacity as an attesting witness. It is indeed coincidental and surprising that attesting witness accidentally descended on the exact location where Ex-A1 and Ex-A2 were executed with a gap of one year. The court below found the versions of the PW1 to PW4 inconsistent and contradictory. The lower courts refused to accept the plea of the plaintiff that having received consideration of Rs. 6,000/-and Rs. 1,500/- on 31-08-1982 and 31-08-1983 the defendant respectively, executed the disputed promotes, Ex-A1 and Ex-A2. The defendant having stoutly denied the execution as well as the consideration, the witnesses having come out with nebulous statements, the burden is on the plaintiff to prove that the defendant executed the documents Ex-A1 and Ex-A2. The plaintiff ought to have sent the documents Ex-A1 and Ex-A2 for comparison to establish the fact that the defendant put his signature. (Para 9).
B. INDIAN EVIDENCE ACT, 1872 - SECTION 73 - Power of the court to compare the disputed signature with that of the admitted signature - Court not an expert - Opinion of the Court not conclusive -
Under section 73 of the Indian Evidence Act the court has ample powers to compare the admitted document with that of the disputed document, but the opinion arrived at by the judge is not conclusive since the judge is not an expert. So in the absence of the experts evidence, it is not safe for the courts to compare independently arrive at a decision. The Court cannot step into the shoes of an handwriting expert and render an opinion. The court ought to exercise caution to arrive at an independent finding based on the comparison of the admitted signature with that of the disputed signatures. Furthermore the witnesses on the side of the plaintiff, namely PW1 to PW4 have not conclusively deposed that exhibits Ex-A1 and Ex-A2 have in fact been executed by the defendant upon receiving consideration. The comparison of the signature by the court will not advance the case of the plaintiff. In view of the circumstances the appeal is dismissed. (Para 13)
Result: Second Appeal dismissed.
The unsuccessful plaintiff throughout the trial as well as first appellate proceedings, has preferred the present second appeal.
2. On the contention that the defendant, having received a sum of Rs.6000/= on 38. 1982, executed the suit A pronote and having received a sum of Rs.1500/= on 38. 1983, executed the suit B pronote, but, refused to repay the amount inspite of the demand made, the suit has been filed by the plaintiff for recovery of money.
3. The defendant, stoutly denied the execution of the suit A pronote and B pronote. The passing of considerations on those pronotes also was denied by the defendant. To wreak vengeance on account of the dispute that had arisen in the business transaction between the plaintiff and the defendant, the plaintiff has fabricated those two pronotes, it has been contended by the defendant.
4. On the side of the plaintiff, the plaintiff was examined as PW1, the scribe under Exs.A1 and A2 was examined as PW2 and the attestors to Exs.A1 and A2 were examined as PW3 and PW4. As many as five documents were marked on his side. On the side of the defendant, the defendant was examined as DW1 and one Thangavel Udayar was examined as DW2.
5. The Trial Court as well as the first appellate court, having thoroughly adverted to the evidence on record, returned the finding that the plaintiff miserably failed to establish that Exs.A1 and A2 were executed by the defendant, having received the consideration thereunder. The execution of Exs.A1 and A2 and the passing of consideration thereunder were not spoken to by PW2 to PW4, it was observed by the courts below. Ultimately, the plaintiff was non-suited by both the courts below.
6. The following substantial questions of law were framed at the time of admission of the second appeal :-
"1. Whether the courts below is right in holding that no consideration had passed in Exs.P1 and P2, when the attestors for the document were examined in Court and evidence of P.Ws.2 and 3 clearly reveal that their execution and in the absence of any rebuttal evidence, whether the courts below ought not to have held in favour of its execution.
2. Whether the courts below ought not have determined the allegation of the defendant as regards to fraud and fabrication and framed an issue accordingly and whether its judgment in failing to decide the due execution of the promissory note is not incomplete and perverse.
3. Whether the courts below should not have exercised the powers by comparison of the signature of the respondent in Exs.P.1 and P2 with the admitted signature in Ex.P5 and written statement as well as in the deposition copies and whether its order in failure to decide the issue has not resulted in violation of statutory prescription laid down in Section 73 of Indian Evidence Act."
7. Learned counsel appearing for the plaintiff would submit that though there is some variation in the evidence of P.Ws.1 to 4, the material contention that Exs.A1 and A2 were executed by the defendant having received considerations found thereunder were spoken to by PW1 to PW4. It is his further submission that the courts below have not even compared the signature found in Exs.A1 and A2 with that of the admitted signature of the defendant to arrive at a conclusion as to whether the disputed signatures did tally with the admitted signature of the defendant. The scribe has spoken to the fact that the defendant, having admitted the receipt of consideration, executed Exs.A1 and A2, it is submitted. Therefore, the necessity to interfere with the concurrent decisions of the Trial Court and the first appellate court has arisen, it is argued on the side of the plaintiff.
8. Learned counsel appearing for the defendant would submit that except the ipse dixit evidence of PW1, neither PW2, the scribe nor P.Ws.3 and 4 the attesting witnesses spoke about the execution of Exs.A1 and A2 by the defendant having received the consideration referred thereunder. P.Ws.1 to 4 have come out with the i
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