The unsuccessful plaintiff throughout the 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 31.8.1982, executed the suit A pronote and having received a sum of Rs.1500/= on 31.8.1983, 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 inconsistent stand in regard to the factum of execution of Exs.A1 and A2 and the passing of considerations thereunder. Therefore, she would submit that the well considered verdict of the courts below does not warrant interference.
9. Both the courts below, having thoroughly scanned the evidence on record, has come to the decision that PW2 to PW4, scribe and attestors to Exs.A1 and A2 have not cogently spoken to the execution of Exs.A1 and A2 by the defendant. The passing of consideration also was not deposed by the material witnesses viz., P.Ws.2 to 4. Both the courts below also referred to the material fact that though Ex.A2 was allegedly executed by the defendant exactly one year after the execution of Ex.A1, the very same scribe and the attesting witnesses were employed. The courts below also pointed out that the scribe, PW2 has come out with a false version that the defendant had put his signature only with the pen which was used by the scribe.
10. On a comparison of the ink used for scribing the documents, Exs.A1 and A2 with that of the ink used for putting the signature of the defendant, it is found that a different ink pen from that of the ink pen used for scribing the documents, Exs.A1 and A2 was used to put the signature by the defendant.
11. PW2 has come out with a version that P.Ws.3 and 4 arrived at the place where Exs.A1 and A2 were executed accidentally and put their signatures in the capacity as attesting witnesses. It is quite surprising that both the attesting witnesses accidentally descended on the exact location where Exs.A1 and A2 were executed with a gap of about one long year. With the inconsistent and contradictory versions of P.Ws.1 to 4, the courts below were not satisfied with the plea of the plaintiff that the defendant, having received consideration of Rs.6000/= and Rs.1500/= on 31.8.1982 and 31.8.1983 respectively, executed the disputed pronotes, Exs.A1 and A2.
12. The defendant has stoutly denied the execution of the documents, Exs.A1 and A2 and the passing of considerations thereunder. When the witnesses have come out with nebulous versions as to the execution of the documents and considerations passed thereunder, the burden on the plaintiff to establish the execution of Exs.A1 and A2 by the defendant is not shifted. The plaintiff should have taken steps to send the documents for comparison to establish that it was only the defendant who put his signature.
13. Of course, under
section 73 of the Indian Evidence Act, the court has ample power to compare the disputed signature with that of the admitted signature. There is also no legal bar for the Judge to compare the disputed signature with the admitted signature under
section 73 of the Indian Evidence Act. But, the opinion of the court so arrived at is not conclusive. The court is also liable to err in making such comparisons as the court is not an expert in the field of comparison of signatures. So, in the absence of expert's evidence, it is not safe for the courts to compare independently and arrive at a decision stepping into the shoes of a handwriting expert. Therefore, as a matter of prudence and caution, the court should always hesitate to arrive its independent findings solely based on the comparison of the disputed signature with that of the admitted signature by it. Further, when the witnesses on the side of the plaintiff could not satisfactorily establish that Exs.A1 and A2 were executed by the defendant having received considerations thereunder, comparison of the signature by the court would not in any way advance the case of the plaintiff.
14. In view of the above facts and circumstances, the aforesaid substantial questions of law framed by this court are decided against the plaintiff/appellant.
15. In the result, the appeal fails and is dismissed. There is no order as to costs.
19.11.2009.
Index: Yes.
Internet: Yes.
ssk.
To
1. Subordinate Judge, Tiruvannamalai.
2. Additional District Munsif, Tiruvannamalai.
M.JEYAPAUL, J.
ssk.
S.A.No.246 of 1996 19.11.2009.