M.M. Michael v. Siby Vettom

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 1ST DAY OF FEBRUARY 2013/12TH MAGHA 1934 RSA.No. 947 of 2008 ( ) ----------------------AGAINST THE JUDGMENT IN AS.75/2003 of SUB COURT, PAYYANNUR AGAINST THE JUDGMENT IN OS.257/2002 of MUNSIFF COURT, PAYYANNUR APPELLANT(S)/APPELLANT/APPELLANT/DEFENDANT: --------------------------------------- M.M.MICHAEL, S/O.MATHEW, MANAMBURATH HOUSE, AGED 51 YEARS, TEACHER P.C.MANAKKADAVU, NUCHIYAD AMSOM AND DESOM TALIPARAMBA TALUK. BY ADVS.SRI.M.RAMESH CHANDER SRI.SIJI ANTONY RESPONDENT(S)/RESPONDENT/PLAINTIFF: ---------------------------------- SIBY VETTOM, S/O.DOMINIC, AGED 41 YEARS, P.O.CHUNDA, PULINGOME AMSOM AND DESOM, TALIPARAMBA. BY ADVs. M/s. R.T.PRADEEP & SRI.V.VIJULAL THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **N.K.BALAKRISHNAN, J. --------------------------------R.S.A. No. 947 of 2008** **----------------------------------------Dated this the 1[st] day of February 2013** ## **J U D G M E N T** The defendant in a suit for money is the appellant. The suit was for recovery of money on the strength of Ext.A1 promissory note dated 17.11.1997. The defendant denied execution of the promissory note. 2. The plaintiff was examined as PW1 and the defendant was examined as DW1. Exhibits A1 to A4 and Exhibit B1 were also marked. The trial court found that the evidence regarding execution of promissory note and passing of the consideration is true. The lower appellate court re-appreciated the evidence and concurred with the view taken by the trial court. 3. The following two substantial questions of law were raised by the appellants: (i) When the admitted case of the plaintiff is that the suit amount of Rs.60,000/- was borrowed by R.S.A. No. 947 of 2008 -:2:- the defendant on 17.11.1997, was not the suit filed in the year 2002 barred by limitation in the absence of any averment in the plaint for excluding the period of limitation? (ii) When the execution of Ext.A1 promissory note was specifically denied by the defendant, was it not obligatory on the part of the court below to send the disputed document to a handwriting expert for comparison with the admitted signatures of the defendant, instead of attempting a comparison of the signatures by the court itself by recourse to Section 73 of the Evidence Act? 4. As regards question no.1 it is seen that the question was wrongly raised by the appellant. The cause of action for the suit arose on 17.11.1997, the date on which Rs.60,000/- was allegedly borrowed by the defendant. Promissory Note was also executed on that date. The suit was originally filed in forma pauperis as O.P. under Order R.S.A. No. 947 of 2008 -:3:- XXXIII Rule 1 of CPC on 14.11.2000. That means it was filed within the time prescribed. It was later numbered as O.S. 257/2002. Since the plaint (as indigent O.P.) was filed within time, the contention that the suit is barred by limitation cannot be sustained. 5. The other question is whether it was necessary to send Ext.A1 promissory note for comparison of signature. The evidence regarding execution of Ext.A1 promissory note was given by PW1. The two courts below accepted the evidence. It is only concerning appreciation of evidence. 6. The courts below relied upon the evidence given by PW1 and other circumstances to hold that a sum of Rs.60,000/- was lent to the defendant and that Ext.A1 was executed by the defendant. Since it is only a question of fact and since the finding was entered by the courts below after thorough appreciation of the evidence, no question of law is involved in this matter, the learned counsel for the plaintiff/respondent submits. R.S.A. No. 947 of 2008 -:4:- 7. It is argued by the learned counsel for the appellant that Ext. B1 certificate issued by the Headmaster would show that the defendant (DW1) was on that day present in the school which was about 60 kms. away from the place from where Ext. A1 the promissory note was stated to have been executed and so it is contended that it is highly improbable that such a promissory note could have been executed by DW1. But that certificate has not been proved in the manner required by law. There is no evidence to show that at the relevant time i.e. at about 11.30 a.m. the defendant was actually present in the school. Merely because in the attendance register his signature/initial was seen does not mean that the defendant was actually present in the school at the relevant time. Hence, the courts below also did not accept the argument so advanced on behalf of the defendant. 8. Regarding the comparison of the signature it is R.S.A. No. 947 of 2008 -:5:- vehemently argued by the learned counsel for the appellant that there is difference in the signature found on Ext.A1 with the admitted signatures of the appellant found on the acknowledgment card, the vakalath and the affidavit filed in I.A. No. 1950/2001. But I find no merit in that contention. The Courts below have compared the signatures to ensure the same. I also verified those documents and the signature found on Ext.A1. It is seen that all the signatures are identical. It is also of mention that the signature of the accused who is a school teacher is such that it cannot be simulated or imitated. The plaintiff was not having in his possession any document containing the signature of the defendant. The contention that a letter was sent by the defendant and that contained his signature also does not inspire confidence. In any event, it is not a signature which can be simulated or imitated by so as to foist a false promissory note. 9. It was held by the Supreme Court in **The State** R.S.A. No. 947 of 2008 -:6:- **(Delhi Administration ) v. Pali Ram – (1979) 2 SCC 158** that although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting solely on comparison made by himself and, therefore, it is not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other. It was also held by the Supreme court in **O.Bharathan v. K.Sudhakaran – (1996) 2 SCC 704** and also in **Ajit Savant Majagvai v. State of Karnataka – (1997) 7 SCC 110** that Section 73 of the Evidence Act does not specify by whom comparison shall be made but however, looking to the other provisions of the Act it is clear that such comparison may either be made by a handwriting expert R.S.A. No. 947 of 2008 -:7:- under Sec. 45 or by anyone familiar with the handwriting of the person concerned as provided by Sec. 47 or by the Court itself. It was also held that the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, the Court should leave the matter to the wisdom of experts. But the fact that the Court has power to compare the disputed signature with the admitted signature is clearly available under Sec. 73 of the Act as has been held by the Supreme Court in the aforesaid decisions. Sec. 73 of the Act expressly enables the court to compare the disputed writing with the admitted or proved writings to ascertain whether the signature is that of the person by whom it was purported to have been signed. These decisions were referred to by the Supreme Court in **Sivashankara Pillai v. Navaneethammal - 2008 (2) KLT 267** . That was actually a case where comparison of the thumb impression R.S.A. No. 947 of 2008 -:8:- was done. It was held that the comparison of the two thumb impressions cannot be casual or by a mere glance. Here the characteristics and similarities of the signature of the appellant found on Ext.A1 promissory note and his admitted signatures found in Ext.A3 acknowledgment card, the affidavit and vakalath etc. were done by the courts below only to satisfy the judicial conscience in support of the conclusion the courts had to make based on the evidence otherwise available on record. The fact that not even a reply was sent by the appellant to the suit notice which was received by him is also a strong circumstances which the plaintiff can certainly rely upon. No plausible reason is offered by the appellant for not sending the reply. As said earlier the signature found on Ext. A1 is one which cannot be simulated or imitated by any other person and so there is no difficulty for the court to find that the signature found on Ext.A1 is similar to the admitted signatures of the appellant found in the vakalath, R.S.A. No. 947 of 2008 -:9:- affidavit etc. referred to above. 10. The courts below have analysed the evidence in the correct perspective and found that the contention raised by the defendant is absolutely untrue. The case set up by the plaintiff is more reasonable and acceptable, and as such the courts below were perfectly justified in rejecting the contention advanced by the defendant. As stated earlier, it is actually a case of appreciation of evidence,it does not involve any question of law, much less substantial question of law. Hence, this Second Appeal is dismissed. In the circumstances of the case, there will no order as to costs. _Dated this the Ist day of February, 2013._ ani/jjj Sd/-N.K.BALAKRISHNAN, JUDGE /true copy/ P.S. to Judge