Vijayaran v. G. Sreedharan Pillai

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 5TH DAY OF JULY 2013/14TH ASHADHA, 1935 AS.No. 649 of 1996 ( ) ----------------------- OS 147/1991 of SUB COURT, CHERTHALA APPELLANT/DEFENDANT : ----------------------VIJAYARAJAN, RESIDING AT GEETHALAYAM, KANJIKUZHY VILLAGE, CHARAMANGALAM MURI. BY SENIOR ADV. SRI.P.VIJAYA BHANU, ADV. SRI.T.A.UNNIKRISHNAN RESPONDENT/PLAINTIFF : ----------------------- G.SREEDHARAN PILLAI, RESIDING AT RAJENDRA VILLA, CHERTHALA EAST MURI, KOKKOTHAMANGALAM, CHERTHALA (DIED - ADDL. R2 TO R5 IMPLEADED) ## ADDITIONAL RESPONDENTS IMPLEADED : 2. KARTHIAYANI AMMA, W/O.G.SREEDHARAN PILLAI, RESIDING AT RAJENDRA VILLA, CHERTHALA EAST MURI, KOKKOTHAMANGALAM, CHERTHALA. 3. RAJENDRA PRASAD, S/O.G.SREEDHARAN PILLAI, RESIDING AT RAJENDRA VILLA, CHERTHALA EAST MURI, KOKKOTHAMANGALAM, CHERTHALA. 4. RAJALAKSHMI, D/O.G.SREEDHARAN PILLAI, RESIDING AT RAJENDRA VILLA, CHERTHALA EAST MURI, KOKKOTHAMANGALAM, CHERTHALA. 5. REMADEVI, D/O.G.SREEDHARAN PILLAI, RESIDING AT RAJENDRA VILLA, CHERTHALA EAST MURI, KOKKOTHAMANGALAM, CHERTHALA. (LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL. R2 TO R5 AS PER ORDER DATED 28.3.2012 IN I.A.1992 OF 2006) THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03-07-2013, THE COURT ON 05-07-2013 DELIVERED THE FOLLOWING: ## **M.L.JOSEPH FRANCIS, J.** **----------------------------------------------A.S. No.649 of 1996 ----------------------------------------------Dated 5[th] July, 2013.** ## **J U D G M E N T** This appeal is filed by the defendant in O.S.No.147 of 1991 on the file of the Sub Court, Cherthala. The original respondent herein was the plaintiff in that suit, which was filed by him for realization of money. 2. The averments in the plaint are briefly as follows : The defendant borrowed a sum of `35,000/- from the plaintiff on 11.2.1987 and executed a receipt which is stated as a promissory note in favour of the plaintiff. The defendant undertook to pay 12% interest on the principal amount. The defendant did not repay the amount. Hence, the plaintiff issued a notice on 25.1.1990. The defendant personally met the plaintiff and requested one month's time to repay the amount. The plaintiff agreed for the same and the defendant executed another receipt on 31.1.1990 undertaking to repay the amount within a period of one month from that date. The defendant did not repay the amount even after repeated demands. The amount due to the plaintiff upto 31.1.1990 is `47,600/-. The plaintiff is entitled to get 12% interest from 31.1.1990 to the A.S. No.649 of 1996 2 date of institution of the suit. That amount will come to `8092/-. The plaintiff is also claiming notice charges of `150/-. Hence the suit was filed for realization of a total sum of `55,842/- with interest at the rate of 12% per annum from the date of institution of the suit till realization. 3. The defendant filed a written statement mainly contending that the suit is not maintainable either in law or on facts. The defendant did not borrow `35,000/- or any other sum from the plaintiff on 11.2.1987 or on any other date. The defendant did not execute any receipt or promissory note in favour of the plaintiff undertaking to repay the amount with 12% interest. The defendant is conducting a small scale industry and he is not doing any business. The defendant after receiving the notice sent a reply notice through his counsel stating true facts. It is stated in the notice that the defendant did not borrow any amount from the plaintiff or executed any promissory note. Haridas, S/o.Kesavan, who was a near friend of the defendant was in inimical terms with the defendant. He fabricated the promissory note with the help of the witness and A.S. No.649 of 1996 3 instituted the suit through the plaintiff, who is under the control of Haridas. Suit is barred by limitation. Plaintiff is not entitled to get any of the reliefs sought for in the suit. 4. Before the Sub Court, PW1 to PW3 and DW1 were examined and Exts.A1 to A3 and B1 to B3 were marked. The learned Sub Judge, on considering the evidence on record, found that the defendant borrowed `35,000/- from the plaintiff undertaking to repay the amount with 12% interest and executed Exts.A1 and A3 documents, and the suit was decreed directing the defendant to pay the plaintiff a sum of `55,742/with interest at the rate of 12% per annum on the principal sum of `35,000/- from the date of institution of the suit till realization with costs. Against that judgment and decree, the defendant filed this appeal. 5. During the pendency of the appeal, the respondent/ plaintiff died and his legal heirs are impleaded as additional respondents 2 to 5. 6. Heard the learned counsel for the appellant. 7. At the time of hearing, the learned counsel for the A.S. No.649 of 1996 4 appellant raised the following arguments : The court below ought to have found that there is no evidence to prove that the appellant has availed any loan from the respondent. The court below ought to have found that the evidence of PW1 to PW3 is highly artificial and improbable. Even after finding that the admitted signatures and those signatures found in Exts.A1 and A3 are different, the court below erred in comparing them by itself instead of sending them for expert opinion. 8. The learned counsel for the appellant invited my attention to paragraph 15 of the decision of the Apex Court, reported in Thiruvengada Pillai v. Navaneethammal [2008(2) KLT 267 (SC)], in which it was held as follows : “15. While there is no doubt that Court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the A.S. No.649 of 1996 5 same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear and where the Court is in a position to identify the characteristics of finger prints, the Court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the Court should not hazard a guess by a casual perusal. The decision in Muralilal (supra) and Lalit Popli (supra) should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further even in cases where the Court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment A.S. No.649 of 1996 6 should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The Court should avoid reaching conclusions based on a mere casual or routine glance or perusal.” ## 9. In the decision reported in **K.R.Aravindakshan Nair v. Essen Banker's, Pathanamthitta and another** (2007(3) KHC 295), it was held as follows : “No two signatures of the same person can ever be identical in all respects. But the essential and unique characteristics of the writings of a person will invariably be present even if those signatures were to be replicated by the same person. The discrepancies in such a case will be within the natural variations. When the Court itself entertained some doubt after observing the discrepancies in the signatures, the Court should not have ventured to form an opinion merely because Section 73 of the Evidence Act enables the Court to compare the signatures. Even though, there is no bar for the Court to compare the admitted signatures/writings with the disputed signatures/writings and come to its own conclusion, it would be more prudent to require the opinion of an expert.” 10. There is no dispute with regard to the above proposition of law. Under Section 73 of the Evidence Act, a court is competent to compare the disputed writing with the A.S. No.649 of 1996 7 admitted writing of a person. But, it is not safe for the court to record its finding based solely on its comparison. The court can compare the writings in order to appreciate properly other evidence produced in court. 11. The plaintiff was examined as PW1. PW1 is a retired Headmaster of a school. PW1 deposed that on 11.2.1987, the defendant borrowed `35,000/- from him and executed Ext.A1 promissory note on the same day. When the plaintiff demanded back the amount, the defendant did not repay the amount. PW1 sent a lawyer notice to the defendant demanding back the amount. Ext.A2 is the postal acknowledgement signed by the defendant for receipt of the lawyer notice. PW1 deposed that on receipt of the lawyer notice, the defendant approached him and sought some more time to repay the amount and executed Ext.A3 renewal receipt on 31.1.1990. PW1 deposed that the defendant signed Exts.A1 and A3 in his presence. PW2 is an attesting witness to Ext.A1 promissory note and Ext.A3 renewal receipt. PW2 deposed that he along with the defendant approached the plaintiff for A.S. No.649 of 1996 8 availing a loan for the defendant and the plaintiff gave `35,000/- to the defendant and the defendant executed Ext.A1 promissory note in his presence. PW3 deposed that the defendant borrowed `35,000/- from the plaintiff. As the defendant did not repay the amount, Ext.A3 renewal receipt was written in the handwriting of PW3 and the defendant and the attesting witnesses signed in Ext.A3 in his presence. 12. The defendant, who was examined as DW1 denied his signatures in Exts.A1 and A3. He deposed that he had not borrowed any amount from the plaintiff. Ext.B1 is the copy of the reply notice sent to the plaintiff's Advocate. Ext.B2 is the postal receipt and Ext.B3 is the postal acknowledgement. On comparing the disputed signatures of the defendant in Exts.A1 and A3, it is seen that both the signatures are similar in nature. In cross examination, DW1 admitted that he is an accused in six cheque cases pending before the Magistrate's Court, Cherthala. Therefore, it is clear that the defendant knows very well, how to defend a case relating to a Negotiable Instrument. The admitted signatures of DW1 in Ext.A2 postal A.S. No.649 of 1996 9 acknowledgement, Vakkalath, written statement and in the deposition have some dissimilarities. But, essential and unique characteristics of the signatures are present in the disputed signatures and the admitted signatures of the defendant. On appreciating the testimony of PW1 to PW3 in the light of that comparison, I am of the view that the court below is fully justified in finding that the plaintiff borrowed `35,000/- from the plaintiff and executed Exts.A1 and A3 documents evidencing that payment. Therefore, I find no reason to interfere with the judgment and decree of the court below. Accordingly, this appeal is dismissed as it is without any merits. The parties are directed to suffer their respective costs in this appeal. Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)