The presence of a thumb impression on a promissory note does not necessarily constitute a material alteration under Section 87 of the Negotiable Instruments Act.

The unsuccessful defendant is the appellant. The respondent/plaintiff filed the suit for recovery of a sum of Rs.42,020/- on the basis of the promissory note executed by the appellant for a sum of Rs.40,000/- on 3.5.2002.

2. The case of the respondent/plaintiff was that the appellant/defendant received Rs.40,000/- from her and executed a promissory note on 3.5.2002 and thereafter did not pay any amount either towards principal or interest and therefore, the suit was filed for recovery of the said amount.

3. The appellant contested the suit denying the execution of the promissory note and alleged that the promissory note was forged and created by the husband of the respondent and he has not executed any promissory note as alleged by the respondent.

4. The trial court decreed the suit holding that the respondent/plaintiff proved the execution of promissory note by examining the witnesses and also proved her means for providing the consideration of the promissory note and though the appelant denied the execution of the promissory note he has not produced any document for comparing the signature found in the promissory note and on comparing the available signature of the appellant in the promissory note as well as the written statement, the signature found in the promissory note Ex.A1 was found to be that of the appellant and decreed the suit. The Lower Appellate Court also concurred with the findings of the trial court and dismissed the appeal. Hence, the Second Appeal.

5. It is submitted by the learned counsel for the appellant that both the courts without properly appreciating the evidence of PW.2 and PW.3 erred in holding that the execution of the promissory note was proved by the respondent. It is submitted by the learned counsel for the appellant that P.W.1 the respondent had stated that the stamps are affixed at the top of the promissory note and thumb impression was affixed in the bottom and the evidence of PW.1 is contrary to the stamps affixed in the promissory note. According to him, in the promissory note, the stamps are affixed in the bottom and on the right hand side top, thumb impression is found and therefore, the evidence of PW.1 would also prove that she was not aware of the execution of the promissory note in her favour. He further contended that PW.2 is the close relatives of PW.1 and PW.2, and PW.3 did not state that the appellant affixed thumb impression on the promissory note and therefore, having regard to the evidence of PW.2 and PW.3, thumb impression must have been affixed later and it amounts to material alteration and on that ground, the courts below ought to have dismissed the suit.

6. On the basis of the submissions made by the learned counsel for the appellant, the following substantial questions of law were framed for consideration.

(i) Whether there is any material alteration in Ex.A1 as contended by the appellant so as to make the document illegal.

(ii) Whether the respondent/plaintiff proved the execution of promissory note.

7. It is seen from Ex.A1 promissory note that the appellant signed on the stamps affixed at the bottom of the promissory note and on the right hand side top, thumb impression is also found. According to the learned counsel for the appellant that PW.2 and PW.3 did not say the affixing of thumb impression by the appellant and therefore, it is a material alteration in the promissory note and hence, the promissory note cannot be believed and no decree can be passed on the basis of the said promissory note.

8. He relied upon the judgments reported in (1942) 2 MLJ 303 (P.R.Subramania Pattar Vs. Porathana Andi), 2005 (1) CTC 409 (Ayyakannu Gounder Vs. Virudhambal Ammal), and 2007 (1) ALD 790 (Kotipalli Nageswara Rao @ Kotupalli Vs.Yandrapalli Nagaiah) in support of his contention.

9. It is true that when there is material alteration in a negotiable instrument, then the negotiable instrument will become void and no right accrues under the said promissory note. In this case,