Nerumvelli Bhanumathi v. Kanaran Kandiyil Gopalan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR** **FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929** **SA.No. 120 of 1995(E)** **---------------------** **AS.46/1991 of SUB COURT, VADAKARA OS.102/1989 of MUNSIFF COURT, VADAKARA ....................** ## **APPELLANT: RESPONDENTS:DEFENDANT:** **---------------------------------------------------------------** **NERUMVELLI BHANUMATHI, 35 YEARS, D/O.NARAYANAKURUP, RESIDING AT MANANTHODI KUNIYIL CHARODE AMSOM, ERAPURAM DESOM, VADAKARA TALUK.** **BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SRI.D.ANIL KUMAR** ## **RESPONDENT:APPELLANT:PLAINTIFF:** **----------------------------------------------------------** **KANARAN KANDIYIL GOPALAN, 48 YEARS, S/O.CHATHAN, VYDIAR CHORODE AMSOM, ERAPURAM DESOM, VADAKARA TALUK.** **BY SRI.KANNAN KANDIYIL GOPALAN(PARTY)** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Kss ## **M.SASIDHARAN NAMBIAR,J.** -----------------------------------------S.A .NO. 120 OF 1995 -----------------------------------------Dated 14[th] March 2008 ## **J U D G M E N T** Appellant is the defendant and respondent the plaintiff in O.S.102/1989 on the file of Munsiff court, Vadakara. Respondent instituted the suit for realisation of Rs.5,000/- due under Ext.A1 promissory note with interest and cost. According to the respondent appellant borrowed Rs.5,000/- on 5/8/1986 and executed Ext.A1 promissory note agreeing to repay the same on demand and in spite of the demand appellant did not pay the amount, Ext.A2 notice was sent and in spite of the receipt of notice appellant did not pay the amount and she is liable to realise the amount with interest and cost. Appellant in the written statement contended that she did not obtain any loan and she did not execute any promissory note and the promissory note produced was not executed by the appellant and she is not liable to pay any amount and therefore suit is to be dismissed. 2. Learned Munsiff on the evidence of respondent 2 as PW1 and appellant as DW1 and Exts.A1 and A2 and X1 dismissed the suit holding that execution of promissory note was not proved and though plaint was amended claiming the amount due on the original transaction, the original transaction was also not proved. Respondent challenged judgment before Sub court, Vadakara in A.S.46/1991. Before the first appellate court respondent filed an application to send Ext.A1 promissory note along with Ext.X1 summons in the suit served on the appellant and postal acknowledgment by which Ext.A2 notice was served on the appellant and admitted signature of the appellant to be taken from the open court. That petition was allowed and Ext.A1 along with other signatures were forwarded to State Forensic Science Laboratory, Thiruvananthapuram. As per the report dated 6/5/1994, Scientific Assistant attached to the Forensic Science Laboratory forwarded the report stating that the questioned signature Q1 namely, disputed signature in Ext.A1 promissory note is unlikely to the written by the person who wrote standard signatures and other documents forwarded from the court namely, sample signatures taken from the open court, Ext.X1 and Ext.A2(a) postal acknowledgment. Learned Sub Judge on re-appreciation of evidence found that 3 comparison of signatures seen in Ext.A1 with the signatures seen in Exts.X1 and A2(a) postal acknowledgment found that signatures are identical. Learned Sub Judge also found that though Ext.A2 notice was served on the appellant, he did not send a reply and that fortifies case of the respondent that appellant borrowed the amount and executed Ext.A1 promissory note. Learned Sub Judge accepted the evidence of PW1 and disbelieved the evidence of DW1 and granted a decree in favour of the respondent. It is challenged in the appeal. 3. Appeal was admitted formulating following substantial questions of law. 1) Whether first appellate court was right in deciding the dispute by comparison of the signature by itself, even when report of the handwriting expert is not favourable to respondent. 2) Whether first appellate court was justified in deciding the identity of the signature without opinion from another expert. 3) Whether the first appellate court was justified in reversing the judgment of the trial court on the evidence on record. 4 4. Learned counsel appearing for appellant was heard. Though respondent was originally represented by a counsel there was no appearance for the respondent subsequently. Respondent was also absent. 5. Argument of learned counsel is that Ext.A1 promissory note is written in a stamp paper and revenue stamp was not affixed on Ext.A1 and it is written on a stamp paper it is not duly stamped as provided under Stamp Act and courts below should not have relied on Ext.A1. Relying on Article 49 of Indian Stamp Act learned counsel argued that on the date of execution of Ext.A1 promissory note, it should have been stamped with revenue stamps worth 25 paise, as the amount exceeded Rs.1,000/-. It was also argued that as provided under Section 11 of Kerala Stamp Act adhesive stamp has to be affixed on the promissory note and as Ext.A1 is written in a stamp paper with impressed stamp it was not duly stamped and therefore a decree should not have been granted. Learned counsel argued that the trial court which had the opportunity to note the demeanour of the witnesses disbelieved the evidence of PW1 and accepted the evidence of DW1 and in such circumstance first appellate court was not justified in reversing the findings of the trial court based on re- 5 appreciation of evidence. It was also argued that even though appellant specifically contended that she did not execute Ext.A1 promissory note and it is her forged signature, respondent did not take steps to sent the promissory note to an expert from the trial court and though it was forwarded to an expert from the first appellate court, first appellate court was not justified in comparing the signature on its own ignoring the opinion of the expert without the aid of opinion of another expert and the judgment of the first appellate court is not sustainable. Reliance was placed on the decision of the Apex court in **State of Maharashtra v. Sukhdev Singh (AIR 1992 SC 2100) and Bharathan v. Sudhakaran (1996 (1) KLT 406 SC)** . 6. Article 79 of Indian Stamp Act provides the stamp duty payable for a promissory note as defined under sub section 22 of Section 2 of Negotiable Instrument Act. When the amount payable on demand does not exceed Rs.250/- the stamp duty payable was 10 paise and when the amount exceeds Rs.250/- but does not exceed Rs.1,000/- it was 15 paise and in all other cases it was 25 paise. Though that stamp duty payable was subsequently amended, reducing it to 15 paise with 6 effect from 1/3/2004, as Ext.A1 promissory note was allegedly executed prior to that date, stamp duty payable was 25 paise. 7. Rule 4(2) of Kerala Stamp Rules, 1960 provides for two kinds of stamps for indicating the payment of duty with which instruments are chargeable. They are (a) impressed stamps and (b) adhesive stamps. Section 11 of Kerala Stamps Act provides the instrument for which adhesive stamps could be used. Under sub section (a) instruments chargeable with duty of 20 paise and less and under clause (b) certificate of enrolment in the roll of advocates maintained in the State Bar counsel and under clause(c) notorial acts and under clause (d) instruments as the Government by notification in the gazette specify are the instruments which could be stamped with adhesive stamps. Therefore when Ext.A1 promissory note is chargeable with a duty of 25 paise and when duty of the instrument stamped with adhesive stamps shall not exceed 20 paise, which was the duty payable, it cannot be said that Ext.A1 promissory note which was executed in a stamp paper worth Rs.3/- is not duly stamped and therefore not admissible in evidence as canvassed by the learned counsel appearing for appellant. 7 8. Even otherwise it is only of academic interest on the facts of the case. Plaint was later amended claiming the amount on the original transaction and even without Ext.A1 if respondent could prove that appellant had borrowed Rs.5,000/- he is entitled to a decree. 9. Crucial question is whether respondent has established that appellant borrowed Rs.5,000/- on 5/9/1986 and executed Ext.A1 promissory note. Ext.A1 promissory note though written in a stamp paper is not attested by any other witness. Only signature of the executent is seen therein. Though appellant did not send any reply to Ext.A2 notice sent by respondent demanding the amount covered under Ext.A1, in the written statement appellant specifically pleaded that did not borrow any amount and she did not execute Ext.A1 promissory note and signature in Ext.A1 is not her signature. In spite of that defence, respondent did not take any steps to get the signature seen in Ext.A1 compared with admitted signature of the appellant before the trial court. After the trial court dismissed the suit holding that execution was not proved and signature was not proved, before the first appellate court, appellant filed application to get a report 8 from the expert. That petition was not opposed by the appellant Ext.A1 was forwarded to Forensic Science Laboratory, Thiruvananthapuram along with signatures of the appellant taken from the open court, Ext.X1 summons served on the appellant containing her signature and Ext.A2(a) postal acknowledgment card containing the signature of the appellant when Ext.A2 notice was served on her. Expert of Forensic Science Laboratory after comparing the signature seen in the admitted signature namely signature taken from the open court and signatures in Ext.X1 and A2(a) reported that “on the cumulative consideration of the similarities in some significant writing characteristics found between the questioned and standard signatures it is concluded that the person who wrote the standard signatures could be the writer of the questioned signatures marked Q2 and Q3 namely, signatures in Exts.X1 and A2(a)” the signatures of the appellant taken from the open court. But when signatures in Ext.A2(a) and X1 and signatures taken from the open court were compared with the disputed signature Q1 in Ext.A1 promissory note, the expert has reported as follows. “Based on the differences in some significant writing characteristics 9 found between the questioned and standard signatures it is concluded that the questioned signature marked Q1 (which is signature in Ext.A1) is unlikely to be written by the person who wrote the standard signatures marked S1 to S30, S1(a) to S25(a) and namely signatures in Exts.A2(a), X1 and sample signatures taken from the open court.” Therefore the report of the expert only corroborates the findings of the trial court that Ext.A1 promissory note was not executed by the appellant and the signature seen in Ext.A1 is not that of the appellant. 10. First appellate court discarded the said report of the expert as follows. “Unfortunately the expert had compared the signature in Ext.A1 with the standard signatures of the defendant obtained from the court and found that it is not possible to say if these two signatures are by one and same person.” First of all the report of the expert is not that it is not possible to say that signatures are put by one and same person. As stated earlier when the admitted signatures of the appellant were compared with the signatures in Ext.X1 and A2(a) it was found that signatures are of the same person. But when the disputed 10 signature in Ext.A2 was compared with admitted signatures taken from court, Exts.X1 and A2(a) it was found that it is unlikely to be written by the same person. Therefore what was reported by the expert is not that it is not possible to say that signatures are put by the same person but that it is unlikely that both signatures were put by the same person. In the light of the opinion of the expert first appellate court was not justified in comparing the signature seen in Ext.A1 with the signatures in Ext.A2(a) and X1 and arrive at a different finding against the finding of the expert without the aid of another expert. 11. Only evidence adduced in support of the execution of promissory note was that of respondent as PW1. Evidence of PW1 was appreciated properly by the trial court. What was contended by the respondent was that appellant borrowed the amount, for paying the amount towards the hire purchase, as autorickshaw belonging to the appellant was taken away by the hirer. Appellant specifically contended that she did not own any autorickshaw. When PW1 was cross examined on that fact he deposed that autorickshaw was owned by the husband. As rightly found by the trial court if that be the case, respondent could have produced the 11 registration certificate of the vehicle to establish that appellant had borrowed that amount to get back autorickshaw seized by the hirer. In the light of the evidence when the appellant specifically denied the execution of Ext.A1 and report of the expert corroborates her case that signature seen in Ext.A1 is not that of the appellant, first appellate court was not justified in reversing the findings of the trial court. 12. Appeal allowed. In such circumstance, judgment of the first appellate court in A.S.46/1991 is set set aside and that of the trial court in O.S.102/1989 is restored. M.SASIDHARAN NAMBIAR, JUDGE. uj. 12 ============================= M.SASIDHARAN NAMBIAR,J. ## **JUDGMENT** S.A.NO.120 OF 1995 14[th] March 2008 ============================