## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH**
**WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931**
**RSA.NO. 984 OF 2009()**
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**AS.174/2006 OF DISTRICT COURT, PALAKKAD OS.176/2004 OF ADDL.MUNSIFF COURT, PALAKKAD**
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## **APPELLANT – APPELLANT - DEFENDANT**
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**SUSHEELA, W/O. SAHADEVAN, AGED 44 YEARS CHEMBAKARA, EZHAKKAD, KONGAD AMSOM PALAKKAD DIST.**
**BY ADV. SRI.JACOB SEBASTIAN**
**RESPONDENT(S) – RESPONDENT - PLAINTIFF**
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**A.B.SIVADAS, S/O. M.K.BALAKRISHNAN, AGED 59 YEARS, KADUNGATH KALAM,EZHAKKAD, PALAKKAD TALUK, PALAKKAD DIST.**
**THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **THOMAS P.JOSEPH, J.**
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**R.S.A. NO.984 of 2009**
= = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4[th] day of November, 2009
## **J U D G M E N T**
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The Second Appeal arises from judgment and decree of learned Additional District Judge, Palakkad in A.S. No.174 of 2006 confirming judgment and decree of learned Munsiff, Palakkad in O.S.No.176 of 2004. Respondent/plaintiff claimed that appellant borrowed Rs.75,000/- from him on 3.1.2003 and undertaking to repay the same on demand with interest at the rate of 12% per annum executed Ext.A1, promissory note in his favour. He issued notice to the appellant demanding payment of the amount. Though notice was served on the appellant there was no reply and hence the suit. Appellant denied the transaction and execution of Ext.A1 and contended that it is a fabricated document. She claimed that a reply was given in answer to the notice served on her. Her further contention is that her husband (D.W1) owned a tractor during the relevant time, was employed by the respondent to plough his land and in that transaction Rs.5,650/- is due to D.W.1. To avoid payment of that amount a false case was filed against the appellant. Respondent gave evidence as P.W.1 and testified to his case. P.W.2 is a witness in Ext.A1 and supported the respondent. Husband of appellant gave
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evidence as D.W.1 and denied the transaction. He claimed that appellant was laid up due to brain tumour since ten years and is unable to attend the court to give evidence. Learned Munsiff was not inclined to accept the contentions of appellant and accepting the version of respondent granted him a decree as prayed for. That has been confirmed by the first appellate court. Hence the Second Appeal at the instance of appellant urging the following by way of substantial questions of law.
(i) Whether courts below could grant a decree against the pleadings of the respondent?
(ii) Whether courts below are justified in reversing the burden of proof to be with the appellant on the particular facts of the case?
(iii) Whether in the light of the specific denial of Ext.A1 and signature seen on it by the appellant, first appellate court was justified in holding that presumption under Section 118 of the Negotiable Instruments Act attracted in the instant case?
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(iv) Whether adverse inference drawn against the appellant by the courts below is against the mandate of Section 120 of the Indian Evidence Act?
It is contended by learned counsel urging the above points as substantial questions of law that judgment and decree of the courts below cannot be sustained. Learned counsel placed reliance on the decision in **Velayudhan v. Velayudhan** (2001(1) KLT 392) and contended that even if it is assumed that signature in Ext.A1 is proved to be that of appellant that did not tantamount to proof of due execution of Ext.A1 as a demand promissory note. Learned counsel referred me to the evidence of P.Ws.1 and 2 and D.W.1 to buttress his contention.
2. Here is a case where execution of the promissory note (Ext.A1) was denied by the appellant. Therefore burden of proof lay on the respondent and it is only on proving the due execution of Ext.A1 that the presumption under Sec.118(a) of the Negotiable Instruments Act would arise. I do not find from the judgments of the courts below that there is any deviation from the above rule of law as to burden of proof and presumption. Basic issue is whether the courts below are
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justified in finding that due execution of Ext.A1 is proved.
3. Respondent gave evidence as P.W.1 and testified to his case. He claimed that appellant along with her husband (D.W.1) came to his house on the relevant day, borrowed Rs.75,000/- and executed Ext.A1. In cross-examination he stated that appellant had brought the promissory note written and singed it in his presence while borrowing the amount. He claimed that P.W.2 was also present at the time of giving the money and appellant signing Ext.A1. P.W.1 admitted that the writing in the body of Ext.A1 and the signatures are using three different pens. P.W2 claimed that he is a Painter by occupation and had been to the house of respondent on the relevant day in connection with that work. He claimed that money was paid to the appellant in his presence. He saw appellant signing Ext.A1 and himself signed as a witness. In cross-examination he stated that he had not seen Ext.A1, promissory note being written.
4. So far as the evidence of husband of appellant (D.W.1) is concerned he stated about the case of appellant that an amount of Rs.5,650/- is due to him from the respondent and that appellant had not executed Ext.A1 or received any amount from the respondent. He asserted that appellant is laid up since long due to brain tumour and
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unable to come to the court. But he was not able to produce any document in support of that contention. So much so regarding the illness of appellant what is available is only the interested version of D.W.1. Courts below were not inclined to accept the version of D.W.1 as to the non-examination of appellant notwithstanding that she is denying execution of Ext.A1 signature in it which purports to be of her.
5. So far as the execution of Ext.A1 is concerned it is seen that signature purporting to be that of the appellant in Ext.A1 differed from her signatures in the written statement and vakalath. In the written statement and vakalath appellant has signed in Malayalam while in Ext.A1, the signature purporting to be that of the appellant is in English. The above was highlighted by the counsel for appellant. But the acknowledgment card (among Ext.A2 series) for admitted service of notice on the appellant is signed by her in English. Nobody has a case that the acknowledgment card is not signed by the appellant. Courts below found that there is similarity for the signature in the acknowledgment card with signature in Ext.A1. It is settled position of law that post litum signature cannot safely be used for comparison with the disputed signature as there is a possibility of the
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party concerned purposely deviating from his signature to make it appear that the disputed signature is not his.
6. It is argued by learned counsel that P.W.2 has not seen Ext.A1 being written and that he was brought to the court at the instance of respondent. True, P.W.2 stated that he has not seen Ext.A1 being written reason being that according to respondent, appellant had brought Ext.A1 written and signed it in his presence. P.W2 stated that he had seen appellant receiving the amount from respondent and signing Ext.A1. No doubt, D.W.1 is competent to give evidence regarding matters within his knowledge. Courts below were not impressed by that evidence. It is not disputed that notice demanding payment as per the promissory note was served on the appellant. Though appellant contended that she had given a reply and D.W.1 also stated so, there is nothing on record to prove that.
7. Learned counsel invited my attention to the statement made by learned District Judge in paragraph 11 of the judgment that “it is true that the promissory note is executed by the appellant's husband and not by the appellant”. On going through the evidence of P.Ws.1 and 2 it is seen that none stated that the promissory note was executed by D.W.1, husband of the appellant. Hence appellant cannot
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take advantage of that statement.
8. It is then contended by learned counsel that if D.W.1 had accompanied the appellant to borrow money, it was quite unlikely that the demand promissory note was taken from appellant and not from D.W.1 who is the head of family. Answer to that is avaialble in the evidence of D.W.1 that he does not own any property while appellant owns property. That could be the reason why respondent obtained promissory note from the appellant. He ensured that he could recover the amount he lent to the appellant.
9. On going through the judgment under challenge I do not find any burden of proof wrongly cast on the appellant. It is true that mere admission or proof of signature in an instrument does not tantamount to admission or proof of execution of the instrument. But it is also the settled position that when the signature in the instrument is either admitted or proved that went a long way in proving due execution since normally a reasonable and prudent man is not expected to leave signed blank papers with another so as to create liability. On going through the judgment under challenge and hearing learned counsel I find no substantial question of law as urged in the memorandum of appeal arising for decision. Decision of the courts
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below rests on proper appreciation of evidence which does not involve any substantial question of law requiring admission of this Second Appeal.
Resultantly, Second Appeal fails and it is dismissed in limine.
**THOMAS P.JOSEPH, JUDGE.**
vsv
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**THOMAS P.JOSEPH, J. =================== R.S.A. NO.984 of 2009 ===================**
**J U D G M E N T**
**4TH NOVEMBER, 2009**
