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2014 Supreme(Mad) 4170
Before the Madurai Bench of Madras High Court
P. DEVADASS, J.
M. Rani
Versus
A. Bala @ Palaniammal
Second Appeal (MD) No. 571 of 2014
Decided on : 19-11-2014
For the Appellant:Anand Chandrasekar, Advocate.
For the Respondent:N. Dilipkumar, Advocate.
Headnote:
Negotiable Instruments Act - Sections 118, 139 - Evidence Act - Section 45 - Whether approach of Appellate Court in holding that burden of proving non execution of Ex.A1 is on appellant is correct in law – Dishonor of cheque - Claim by filing a written statement - Plaintiff instituted suit in court of District on footing of Ex.A1 for recovery of principal sum of together with accrued interest at agreed rate - Defendant resisted said claim by filing a written statement - Her principal defense is denial of execution of Ex.A1 receipt of any amount under such a document - She also alleged malpractice practiced upon her - In these set of pleadings issues were settled - Evidence was recorded before trial Court - Plaintiff and scribe to Ex.A1 were examined as P.Ws.1 and 2 while defendant gave rebuttal evidence as D.W.1 and also marked Exs.B1 to B3 - Trial Court considered rival submissions appreciated evidence - It was of view that disputed signature in Ex.A1 is not similar to her admitted signatures in Exs.B1 to B3 - Result is collapse of Plaintiffs case - Suit was dismissed – Held, Wherein in an election petition Election Tribunal High Court compared admitted signature of a party with disputed signature and decided controversy - Hobble Supreme Court did not approve it - One more important aspect is even evidence or report of an expert is his opinion evidence – Except certain sciences such as holography opinion will not be definite conclusive but result is based on percentage of probabilities - Experts are not ocular witnesses - It is advisory in nature - A court can take it or differ from it however with sound reasoning - Experts are not eyewitnesses - They are assisting Court by using their expertise in science to unearth truth - Substantive evidence in form of oral evidence and pleadings other documents surrounding circumstances natural course of human conduct have edge over these opinion evidence - Experts evidence alone will not clinch issue - But they will render valuable guidance and assistance to Court in its mission to arrive at truth - That is how it is said obtaining opinion of expert on disputed signatures depends on facts and circumstances of each case - In this regard there cannot be any cut and dried formula - Now present case is an exceptional case - Opinion of an expert on disputed and admitted signatures will be of much assistance to counsels assisting court and as well as Court to render a correct finding - In this view of matter court wish that a fresh look is called for after obtaining an expert opinion as to signature in Ex.A1 which would be after comparing it with her admitted signatures in Exs.B1 to B3 - Quality and quantity of sample signatures in admitted documents and in any other forms further will be within domain of expert - Appeal is allowed
This appeal present a zigzag trend of decision in the trial Court and in the First Appellate Court.
2. Before the First Appellate Court, the Plaintiff was the appellant. Before us, the defendant is the appellant.
3. Parties are same before us but, their roles are changed.
4. The plaintiff instituted the suit in O.S.No.117 of 2006 in the court of District Munsif, Peirakulam on the footing of Ex.A1, dated 13.09.2003, for the recovery of principal sum of Rs.70,000/- together with accrued interest at the agreed rate viz., 12%, totally Rs.94,960/-
5. The defendant resisted the said claim by filing a written statement. Her, principal defence is denial of execution of Ex.A1, receipt of any amount under such a document. She also alleged malpractice practiced upon her.
6. In these set of pleadings, issues were settled. Evidence was recorded before the trial Court. Plaintiff / Bala @ Palaniammal and scribe to Ex.A1 Rajamanikkam were examined as P.Ws.1 and 2, while the defendant Rani gave rebuttal evidence as D.W.1 and also marked Exs.B1 to B3.
7. The trial Court considered the rival submissions, appreciated the evidence. It was of the view that the disputed signature in Ex.A1 is not similar to her admitted signatures in Exs.B1 to B3. The result is collapse of Plaintiff's case. Suit was dismissed.
8. In the circumstances, plaintiff gone to the next Court / Subordinate Court, Periyakulam, by way of A.S.No.39 of 2008.
9. First appellate Court also scanned the signature in Ex.A1 along with the signatures in Exs.B1 to B3 and also the testimony of D.W.1 before the Court. And it found all are analogous. Result is collapse of the defendant's case. Appeal was allowed. Suit was decreed.
10. Now, the defendant is before us.
11. At the time of admission of this Appeal, the then learned Brother formulated the following substantial questions of law.
"1. When the appellant / defendant has specifically denied the factum of execution of Ex.A1 in her pleadings and the trial Court has held that the burden of proof is on the respondent / plaintiff to prove due execution of Ex.A1 by appellant / defendant, whether the approach of the Appellate Court in holding that the burden of proving non execution of Ex.A1 is on the appellant is correct in law? And
2. In the event of conflicting opinion by trial Court and Appellate Court regarding the similarity of handwriting of the appellant / plaintiff, whether the approach of the Appellate Court in not referring the signature of appellant / plaintiff for scientific investigation to render substantial justice is correct in law?"
12. Very same arguments, very same evidence before us. But it has been contended by the learned counsel for the appellant / defendant necessarily, it calls for a different approach. However, the learned counsel for the respondent / plaintiff would submit that need not be because there is threadbare analysis by the 1st appellate Court.
13. The learned counsel for the appellant to carry home his point of view would submit that human brain is fallible under certain circumstances. Now, two courts, trail Court and appellate Court manned by human personalities differed in their views, in viewing the signature in Ex.A1. In such circumstances, a view by an expert becomes relevant and necessary and it would end the nagging question, in the facts and circumstances such an exercise is called for.
14. On the other hand, the learned counsel for the respondent / plaintiff would submit that the first appellate court pointed out that even in her signatures in Exs.B1 to B3 there is some variation. In this context, the first appellate Court refused to blow inconsequential matters out of proportion. In the circumstances, it had found that the signature in Ex.A1 and her admitted signatures in her documents substantially tally.
15. The learned counsel for the respondent would add that when oral testimony backed by document is cogent, an expert's evidence is to be relegated to the background, it
