2021 Supreme(Mad) 164

IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. Jayachandran, J.
Pachiappan – Appellant
Versus
Subramaniyan – Respondent
A.S. No. 806 of 2020 & C.M.P. No. 9696 of 2020
Decided On : 15-03-2021

Point of Law; Loan – Statement to police – Admission – Admissibility –Held, admission if to be used against the maker, in a civil suit, the said admission has to be tested whether given out of free will.

Headnote:

Indian Evidence Act – Section 25 – Civil Procedure Code, 1908 – Section 96 – From plaintiff, for purchase of tractor and to met out expenses for his brick kiln business defendant borrowed a sum –Since, defendant promised to repay the money within 10 days, out of trust believing him, the plaintiff did not insist for any written document. – The defendant did not repay the money within 10 days as he promised. – On several occasion the plaintiff demanded the money in person and over phone. – But the defendant gave evasive reply and delaying the payment. – Plaintiff along with his daughter, son-in-law and a Police Constable met the defendant in his brick kiln and demanded the money. – The conversation held between them was recorded by the plaintiff’s daughter in her cell phone. – The defendant admitted his debt and promised to pay. – Then again he failed to repay the money as promised. – Therefore, plaintiff gave a complaint to District Superintendent of Police. – Enquiry was conducted by Deputy Superintendent of Police, Armed Reserve Force. – Initially, defendant denied the borrowing and his debt. – Later when video recorded by daughter of plaintiff was displayed to Deputy Superintendent of Police, defendant accepted his debt and gave an undertaking that he will repay the debt in four instalments. – The defendant did not repay loan amount, as per time schedule agreed in his written undertaking, He paid only Rs.1,00,000/-– Thereafter, the defendant did pay any further amount. – When demanded further payment he agreed to sell his land and gave encumbrance certificate of his land, but did not execute sale deed. – Again plaintiff gave a complaint to Deputy Superintendent of Police, Salem. – The defendant was enquired by the Inspector of Police – Admitting his liability, the defendant gave an undertaking letter that he will clear the debt in 14 annual instalment of Rs.50,000/-. – Since, the defendant had no inclination to repay the loan amount, the suit for recovery of money with 12% interest laid before the Principal District Judge, the said suit was taken on file as O.S. – Appeal is directed against the decree passed by the Trial Court in the money suit. – The unsuccessful defendant is the appellant before this Court – Whether the decree of the Trial Court based on Ex.A.1 and Ex.A.3 is sustainable in view of the contra evidence placed through Ex.B1 to Ex.B5

Findings of Court : Even though Section 25 of the Evidence Act is restricted only to the statement given by an accused to any police not to be used against the accused. – Being a relevant fat under Section 178 of Indian Evidence Act as an admission if to be used against the maker, in a civil suit, the said admission has to be tested whether given out of free will. – To whom the admission made and what was the admission made. – Plaintiff claims that he served in Postal Department and retired from service. – Without proper security, he had lent a sum of Rs.8,00,000/-. – Having chosen to do so, he has used his influence with the Police through his son-in-law and obtained documents. – The video clipping which is referred in the plaintiff and in P.W.2 evidence to indicate that the defendant voluntarily admitted the liability is not before this Court. – Therefore, this Court need not comment anything about it. – The pre-suit notice Ex.B1 suppressed and a strange defence denying instruction to the lawyer who issue notice is taken. – The said defence demolished by D.W.2 the Advocate, who issued notice Ex.B.1. – Trial Court had first of all erred in not framing appropriate issues. – Further, it has erred in giving credence to Ex.A.1 and Ex.A.3 which are tainted documents ignoring Ex.B1 to B5. – The evidence of P.W.2 is totally unreliable, for multiple reasons. In the plaint, it is stated that P.W.2 accompanied the plaintiff during August 2015 when he went to defendant’s brick kiln for collection. – He has spoken about the happenings during the enquiry conducted by the Police Official but he has come to Court not as an Official witness but as an individual. – He had no authorisation from his Senior Officer to give evidence or to attend the Court. – He did not speak from the record maintained by the Police Station. – He is a private witness in the eye of law, who is not competent to speak about the records maintained in the Police Station. – Defendant by preponderance of probability had proved that, he neither borrowed Rs.5,00,000/- nor he borrowed Rs.3,00,000/- from the plaintiff. Ex.A.1 and Ex.A.3 indicate he had the money transaction only with Arunachalam. – Further, Ex.A.1 and Ex.A.3 were addressed to the police officials under duress and it is tainted with doubt about the free will. – Defendant by preponderance of probability had proved that, he neither borrowed Rs.5,00,000/- on 10.12.2013 nor he borrowed Rs.3,00,000/- on 25.10.2013 from the plaintiff. – Ex.A.1 and Ex.A.3 indicate he had the money transaction only with Arunachalam. – Further, Ex.A.1 and Ex.A.3 were addressed to the police officials under duress and it is tainted with doubt about the free will.

Result : Appeal Suit Allowed