Venkatachalam v. Govindan Chettiar

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 19.11.2009CoramThe Hon’ble Mr.Justice M.JEYAPAULSecond Appeal No.246 of 1996VenkatachalamAppellant/ Plaintiffvs. Govindan ChettiarRespondent/ DefendantFor appellant : Mr.V.RaghavachariFor respondent : Mr.T.R.RajaramanPrayer:- Second Appeal against the judgment and decree of thelearned Subordinate Judge, Tiruvannamalai dated 27.1.1993 made inA.S.No.2 of 1990 preferred against the judgment and decree of thelearned Additional District Munsif, Tiruvannamalai dated 29.9.1989made in O.S.No.888 of 1985. JUDGMENTThe unsuccessful plaintiff throughout the the trial as well asfirst appellate proceedings, has preferred the present secondappeal. 2. On the contention that the defendant, having received a sumof Rs.6000/= on 31.8.1982, executed the suit A pronote and havingreceived a sum of Rs.1500/= on 31.8.1983, executed the suit Bpronote, but, refused to repay the amount inspite of the demandmade, the suit has been filed by the plaintiff for recovery ofmoney. 3. The defendant, stoutly denied the execution of the suit Apronote and B pronote. The passing of considerations on thosepronotes also was denied by the defendant. To wreak vengeance onaccount of the dispute that had arisen in the business transaction https://hcservices.ecourts.gov.in/hcservices/ between the plaintiff and the defendant, the plaintiff hasfabricated those two pronotes, it has been contended by thedefendant. 4. On the side of the plaintiff, the plaintiff was examined asPW1, the scribe under Exs.A1 and A2 was examined as PW2 and theattestors to Exs.A1 and A2 were examined as PW3 and PW4. As manyas five documents were marked on his side. On the side of thedefendant, the defendant was examined as DW1 and one ThangavelUdayar was examined as DW2. 5. The Trial Court as well as the first appellate court,having thoroughly adverted to the evidence on record, returned thefinding that the plaintiff miserably failed to establish thatExs.A1 and A2 were executed by the defendant, having received theconsideration thereunder. The execution of Exs.A1 and A2 and thepassing of consideration thereunder were not spoken to by PW2 toPW4, it was observed by the courts below. Ultimately, theplaintiff was non-suited by both the courts below. 6. The following substantial questions of law were framed atthe time of admission of the second appeal:-"1. Whether the courts below is right in holding thatno consideration had passed in Exs.P1 and P2, whenthe attestors for the document were examined in Courtand evidence of P.Ws.2 and 3 clearly reveal thattheir execution and in the absence of any rebuttalevidence, whether the courts below ought not to haveheld in favour of its execution.2. Whether the courts below ought not have determinedthe allegation of the defendant as regards to fraudand fabrication and framed an issue accordingly andwhether its judgment in failing to decide the dueexecution of the promissory note is not incompleteand perverse.3. Whether the courts below should not have exercisedthe powers by comparison of the signature of therespondent in Exs.P.1 and P2 with the admittedsignature in Ex.P5 and written statement as well asin the deposition copies and whether its order infailure to decide the issue has not resulted inviolation of statutory prescription laid down inSection 73 of Indian Evidence Act." https://hcservices.ecourts.gov.in/hcservices/

7. Learned counsel appearing for the plaintiff would submitthat 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 thedefendant having received considerations found thereunder werespoken to by PW1 to PW4. It is his further submission that thecourts below have not even compared the signature found in Exs.A1and A2 with that of the admitted signature of the defendant toarrive at a conclusion as to whether the disputed signatures didtally with the admitted signature of the defendant. The scribe hasspoken to the fact that the defendant, having admitted the receiptof consideration, executed Exs.A1 and A2, it is submitted.Therefore, the necessity to interfere with the concurrent decisionsof the Trial Court and the first appellate court has arisen, it isargued on the side of the plaintiff. 8. Learned counsel appearing for the defendant would submitthat except the ipse dixit evidence of PW1, neither PW2, the scribenor P.Ws.3 and 4 the attesting witnesses spoke about the executionof Exs.A1 and A2 by the defendant having received the considerationreferred thereunder. P.Ws.1 to 4 have come out with theinconsistent stand in regard to the factum of execution of Exs.A1and A2 and the passing of considerations thereunder. Therefore,she would submit that the well considered verdict of the courtsbelow does not warrant interference. 9. Both the courts below, having thoroughly scanned theevidence on record, has come to the decision that PW2 to PW4,scribe and attestors to Exs.A1 and A2 have not cogently spoken tothe execution of Exs.A1 and A2 by the defendant. The passing ofconsideration also was not deposed by the material witnesses viz.,P.Ws.2 to 4. Both the courts below also referred to the materialfact that though Ex.A2 was allegedly executed by the defendantexactly one year after the execution of Ex.A1, the very same scribeand the attesting witnesses were employed. The courts below alsopointed out that the scribe, PW2 has come out with a false versionthat the defendant had put his signature only with the pen whichwas used by the scribe. 10. On a comparison of the ink used for scribing thedocuments, Exs.A1 and A2 with that of the ink used for putting thesignature of the defendant, it is found that a different ink penfrom that of the ink pen used for scribing the documents, Exs.A1and A2 was used to put the signature by the defendant. https://hcservices.ecourts.gov.in/hcservices/

11. PW2 has come out with a version that P.Ws.3 and 4 arrivedat the place where Exs.A1 and A2 were executed accidentally and puttheir signatures in the capacity as attesting witnesses. It isquite surprising that both the attesting witnesses accidentallydescended on the exact location where Exs.A1 and A2 were executedwith a gap of about one long year. With the inconsistent andcontradictory versions of P.Ws.1 to 4, the courts below were notsatisfied with the plea of the plaintiff that the defendant, havingreceived consideration of Rs.6000/= and Rs.1500/= on 31.8.1982 and31.8.1983 respectively, executed the disputed pronotes, Exs.A1 andA2. 12. The defendant has stoutly denied the execution of thedocuments, Exs.A1 and A2 and the passing of considerationsthereunder. When the witnesses have come out with nebulousversions as to the execution of the documents and considerationspassed thereunder, the burden on the plaintiff to establish theexecution of Exs.A1 and A2 by the defendant is not shifted. Theplaintiff should have taken steps to send the documents forcomparison to establish that it was only the defendant who put hissignature. 13. Of course, under section 73 of the Indian Evidence Act,the court has ample power to compare the disputed signature withthat of the admitted signature. There is also no legal bar for theJudge to compare the disputed signature with the admitted signatureunder section 73 of the Indian Evidence Act. But, the opinion ofthe court so arrived at is not conclusive. The court is alsoliable to err in making such comparisons as the court is not anexpert in the field of comparison of signatures. So, in theabsence of expert's evidence, it is not safe for the courts tocompare independently and arrive at a decision stepping into theshoes of a handwriting expert. Therefore, as a matter of prudenceand caution, the court should always hesitate to arrive itsindependent findings solely based on the comparison of the disputedsignature with that of the admitted signature by it. Further, whenthe witnesses on the side of the plaintiff could not satisfactorilyestablish that Exs.A1 and A2 were executed by the defendant havingreceived considerations thereunder, comparison of the signature bythe court would not in any way advance the case of the plaintiff. 14. In view of the above facts and circumstances, theaforesaid substantial questions of law framed by this court aredecided against the plaintiff/appellant. https://hcservices.ecourts.gov.in/hcservices/

15. In the result, the appeal fails and is dismissed. Thereis no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.ssk. To1. Subordinate Judge, Tiruvannamalai. 2. Additional District Munsif, Tiruvannamalai.3. The Section OfficerVR Section,High Court, Madras1 cc to Mr.T.R. Rajaraman, Sr.624511 cc to Mr.V.Raghavachari, SR. 62340S.A.No.246 of 1996RB (CO)kk 9/12