K. Ramakrishnan v. K. Pankajakshan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933** **RSA.No. 983 of 2009 ( )** **----------------------AS.85/2006 OF ADDL. DISTRICT COURT - I, PALAKKAD OS.41/2004 of PRL.MUNSIFF COURT, PALAKKAD** **--------------** **APPELLANT / RESPONDENT / DEFENDANT : ------------------------------------** **K. RAMAKRISHNAN, OFFICE SUPERINTENDENT GRADE - II, COMMERCIAL BRANCH, DIVISIONAL OFFICE, SOUTHERN RAILWAY, PALAKKAD - 2.** ## **NOW WORKING AS :** **OFFICE SUPERINTENDENT, COMMERCIAL BRANCH, SOUTHERN RAILWAY, SALEM, PIN 636 005, TAMIL NADU.** **BY ADVS. SRI.SAJAN VARGHEESE K. SRI. LIJU M.P.** **RESPONDENT / APPELLANT / PLAINTIFF : ------------------------------------** **K. PANKAJAKSHAN NAIR, S/O. DOMODARAN NAIR, PARIJATHAM, RAIL NAGAR, OLAVAKKODE POST, PALAKKAD.** **BY SRI.K.P.BALAGOPAL** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.983 of 2009 -------------------------------------Dated this the 1[st] day of February, 2012.** ## **JUDGMENT** Respondent was an employee of the Southern Railway and retired some time back. Appellant was also an employee of the Southern Railway. During 1997-98, he was working as Head Clerk, Commercial Branch. As per Ext.B1, he was promoted as Office Superintendent, Gr.II, Commercial Branch on 16.07.1998. It is the case of respondent that on 16.02.2001, appellant borrowed `35,000/- for family needs and undertaking to repay the said amount with interest at the rate of 3% per month, executed Ext.A1, demand promissory note (for short, “the DPN”) the same day. As appellant did not repay the amount, respondent issued Ext.A2, notice on 19.12.2001. Exts.A2(a) and A2(b) are postal receipt and acknowledgment card produced to show service of notice. There was neither reply, nor payment. Hence respondent filed O.S.No.41 of 2004 in the court of Principal Munsiff, Palakkad for recovery of the amount with interest. 2. Appellant contended that he had no such transaction with the respondent on 16.02.2001, nor had he executed any DPN. Instead, he had borrowed `5,000/- from the respondent in the year, 1997 and at that time as **RSA No.983/2009** 2 required by the respondent, issued signed blank stamped paper. Later, he repaid the sum of `5,000/- but, omitted to get back the signed blank stamped paper. That paper has been misused for creating the DPN. 3. Respondent gave evidence as PW1 and proved Ext.A1, DPN. Appellant gave contra evidence as DW1. Trial court after consideration of the evidence came to the conclusion that due execution of Ext.A1 is not proved and consequently dismissed the suit. Respondent took up the matter in appeal. Learned Additional District Judge-I, Palakkad considered A.S.No.85 of 2006, allowed the appeal and granted a decree in favour of respondent. Judgment and decree of the first appellate court are under challenge in this appeal on the following substantial question of law: “Whether, the first appellate court was legally correct in reversing the well reasoned judgment of the trial court and holding that Ext.A1, demand promissory note is executed by the appellant?” 4. It is contended by the learned counsel for appellant that first appellate court was not justified in reversing the well reasoned judgment of trial court having regard to the evidence let in by the parties. It is contended that when the decision in the case depends on appreciation of oral evidence adduced by the parties and the trial court has taken one view of the matter, the first appellate court is not justified in interfering unless there is something in the **RSA No.983/2009** 3 evidence of witnesses which went unnoticed by the trial court and if considered would tilt the decision. It is argued that no such situation is involved in this case. The further contention is that due execution of Ext.A1 is not proved and that version of the appellant that the document is fabricated using the signed blank stamped paper given by him in the year, 1997 is probabilised by the circumstances proved in the case. 5. Learned counsel for respondent contended that since signature in Ext.A1 is admitted, it must be taken that due execution of the DPN is admitted. It is also contended that even if it is assumed that appellant had given signed blank stamped paper to the respondent, it should be treated as an inchoate stamped instrument as understood under Sec.20 of the Negotiable Instruments Act (for short, “the Act”) which gave implied authority to the respondent to fill up the document. Reliance is placed on the decisions in **P.Talamalai Chetty v. Rathinasamy - AIR 1998 Madras 23** and **Seshagiri Rao v. Venkateswara Rao - 2002 (2) KLT SN 1 (Case No.1** ). 6. In the latter of the decisions cited, it is held that a promissory note, even if the name of payee is left blank is a legal instrument if it is in writing and containing an unconditional undertaking to repay the amount and signed by the **RSA No.983/2009** 4 maker and delivered to the payee and that the holder of such document can fill up name of the payee and his other particulars at a later stage. The former decision concerned Sec.20 of the Act. 7. Now the question is whether first appellate court was right in reversing the judgment and decree of trial court? The rule of practice which has almost the force of law is that the appellate court does not reverse a finding of fact which rests on a proper appreciation of oral evidence. When there is a conflict of oral evidence of the party on any matter in issue and the decision hinges upon credibility of the witnesses, then, unless there is some special features about the evidence of a particular witness which has escaped notice of the trial court or there is sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of trial court on questions of fact. The duty of appellate court in such cases is to see whether evidence taken as a whole can reasonably justify the conclusion which trial court arrived at or whether there is an element of improbability arising from the proved circumstances which, in the opinion of the court outweighs such finding (See **Ayyappan v. Fr.Thomas - 1989 (2)** ## **KLT SN.26 [Case No.32]** ) **RSA No.983/2009** 5 8. It is the case of respondent that appellant borrowed `35,000/- on 16.02.2001 and executed Ext.A1, DPN. Beneath the signature of appellant on the stamp affixed, he has written his address in ink as “Head Clerk, Commercial Branch, Divisional Office, Southern Railway, S.Palakkad”. In the body of Ext.A1, the address of appellant is typewritten as “Office Superintendent, Gr.II, Commercial Branch, Division Office, Southern Railway”. 9. Ext.B1 shows that appellant was promoted as Office Superintendent, Gr.II from the post of Head Clerk on 16.07.1998. It is admitted by the respondent when examined as PW1 that the promotion post of 'Head Clerk' is 'Office Superintendent, Gr.II'. As PW1, he would say that appellant had brought the promissory note typewritten, the stamp was affixed in his presence and that appellant signed and wrote his address (in ink as Head Clerk) in the document in his presence. In the initial stage of cross-examination respondent admitted that at the time of appellant signing Ext.A1, DPN he was aware of address of appellant typewritten in it (as Office Superintendent, Gr.II) and written by the appellant in ink (as Head Clerk). He also stated that he did not ask the appellant why he wrote in Ext.A1 as “Head Clerk”. But, at a later point of time when respondent found it inconvenient to explain the situation he stated that it was when Ext.A1 was put to him in the course of cross examination (in court) that he noticed the discrepancy in the address of the appellant. It is difficult to accept that version without a pinch of salt. **RSA No.983/2009** 6 10. Learned counsel for respondent would contend that there is no evidence to show that there was any transaction between the appellant and respondent in the year, 1997, that any amount borrowed by appellant at that time was repaid and at any rate, there is no explanation why appellant had not got back the signed blank stamped paper then. It is also contended by the learned counsel that appellant did not take any action to get back the signed blank stamped paper and that even to Ext.A2, notice he did not send reply. Hence contention of the appellant cannot be accepted. 11. In the written statement appellant claimed that he repaid Rs.5,000/- but omitted to get back the signed blank stamped paper. True, appellant did not reply to Ext.A2, notice . But that alone does not, and cannot make his version unbelievable and the version of respondent believable. I must notice that appellant and respondent were closely acquainted, having worked in the same department, at the same time. Respondent was aware, at the time Ext.A1, DPN was allegedly executed that appellant was working as Office Superintendent, Gr.II, Commercial Branch. But, in spite of that, respondent made no whisper of an objection when appellant wrote his address in Ext.A1 as 'Head Clerk, Commercial Branch'. 12. In 1997, Ext.B1 shows, appellant was working as Head Clerk at Commercial Branch. It is his case that at that time he had borrowed certain amount and given signed blank stamped paper. The description of appellant as **RSA No.983/2009** 7 Head Clerk, Commercial Branch in Ext.A1, DPN probabilises that version of appellant. It is quite unlikely and improbable that if there were any transaction on 16.02.2001 at a time when the appellant was “Office Superintendent, Gr.II” and it was so written in the typed portion of Ext.A1, respondent allowed the appellant to write his address in ink at the portion of his signature as “Head Clerk”, Commercial Branch. Such a conduct is not expected from respondent who is literate and as evidence shows, is not a novice in litigation having advanced money atleast to a few persons. The above probabilise version of appellant that there was some transaction between him and the respondent in the year, 1997 when he was Head Clerk in the Commercial Branch and at that time he had given signed blank stamped paper writing his designation as “Head Clerk”. 13. It is correct that appellant had admitted his signature in Ext.A1, DPN. But admission of signature does not tantamount to admission or proof of due execution of the instrument. It only required the appellant to explain circumstances in which his signature happened to be in Ext.A1, DPN. That, he has done as DW1. Trial court was impressed by that evidence, was not inclined to accept the version of respondent as PW1 and non-suited him. 14. On going through the judgment of first appellate court it is seen that much weight was given to the failure of appellant to reply Ext.A2, notice. First appellate court observed that there is nothing to show that respondent had **RSA No.983/2009** 8 any ill-will, grudge or motive against the appellant to create a document and falsely implicate the appellant in the suit. I am not inclined to think that the above are weighty reasons to disbelieve evidence of appellant as DW1. On going through the judgments of courts below, I do not find any justifiable reason for the first appellate court to reverse the considered decision of trial court which had the occasion to see the deamenor of parties and assess their evidence. There is nothing which escaped the notice of trial court in the evidence of witnesses and which, if considered would have tilted the decision of trial court in favour of respondent. Having regard to the circumstances I am inclined to think that circumstances probabilised version of appellant and the preponderance of probability is in favour of truth of version pleaded by the appellant as found by the trial court. In that view of the matter, first appellate court was not right in reversing the judgment of the trial court. 15. The substantial question of law framed is answered accordingly. Resultantly this Second Appeal is allowed as under: i. Judgment and decree of learned Additional District Judge-I, Palakkad in A.S.No.85 of 2006 are set aside . ii. Judgment and decree of learned Principal Munsiff, Palakkad in O.S.No.41 of 2004 are restored. **RSA No.983/2009** 9 iii. Parties are directed top suffer their costs through out. iv. Trial court is directed to make necessary endorsement on Ext.A1, DPN that it is superseded. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**