1
IN THE COURT OF THE PRL.DISTRICT JUDGE, NELLORE
MONDAY, the 22ndday of APRIL, 2013
Present:- Sri L. SREERAMA MURTHY, B.Sc., B.L., Prl.District Judge
A.S. No.74/2010
&
I.A.Nos.88 and 89 of 2012
A.S.No.74/2010
A.S.No.74/2010:
Puvvadi Subrahmanyam. …Appellant
Vs.
Devarapalli Kondaiah. …Respondent
On appeal against the Judgment and decree of the Senior Civil Judge,
Kavali, dated 9-3-2010 made in:
O.S.No.85/2008
Puvvadi Subrahmanyam. …Plaintiff
Vs.
Devarapalli Kondaiah. …Defendant
I.A.No.88/2012 in A.S.No.74/2010:
Puvvadi Subrahmanyam. …Petitioner/ Appellant
Vs.
Devarapalli Kondaiah. …Respondent/ 2 Respondent
I.A.No.89/2012 in A.S.No.74/2010:
Puvvadi Subrahmanyam. …Petitioner/ Appellant
Vs.
Devarapalli Kondaiah. …Respondent/ Respondent
This appeal and the petitions coming on 22-3-2013 for final hearing
before me in the presence of Sri P. Uma Maheswar, advocate for appellant
in the appeal and the petitioner in I.As. and of Sri A. Prasad Reddy, advocate
for respondent in the appeal and I.As., upon hearing both sides, upon
perusing the record and having stood over for consideration till this day, this Court delivered the following:-
COMMON JUDGMENT
The appellant is the plaintiff in O.S.85/2008 on the file of Senior Civil
Judge, Kavali, filed the present appeal prays to set aside the Judgment and
decree, dated 9-3-2010 wherein the suit of the plaintiff was dismissed in which the plaintiff filed the suit for recovery of a sum of Rs.1,72,890/- towards principal and interest due on three promissory notes, dated 21-10-2005, 16-3-2006 and 12-8-2006 respectively.
2) It is the specific case of the plaintiff that the defendant borrowed a sum of Rs.41,000/- on 21-10-2005, Rs.28,000/- on 16-3-2006 and
Rs.43,000/- on 12-8-2006 from the plaintiff towards his family necessities and executed promissory notes on the even dates undertaking to repay the same with interest at 24% per annum either to the plaintiff or to his Order on demand and failed to repay the amounts due under the above said 3 promissory notes, inspite of his repeated demands, apart from the legal notice, dated 12-12-2007 demanding the defendant for repayment of the amounts due under those suit promissory notes for which the defendant issued reply notice with false contentions.
3) The defendant filed written statement admitting the execution of the promissory notes, dated 21-10-2005 and 16-3-2006 while denying passing of consideration of Rs.41,000/- and Rs.28,000/- respectively and contending as they are renewal promissory notes and also contends that at the time of the execution of the said two pronotes, the plaintiff obtained his signatures on blank printed promissory notes and there were no attestors on the promissory notes on 21-10-2005 and 16-3-2006 and that the plaintiff obtained the signatures of friends on the said two promissory notes just prior to the filing of the suit as attestors and also created the 3rd promissory note,
dated 21-10-2005 falsely by filling the blanks in the said promissory note
which contains the signature of the defendant obtained by the plaintiff by way of security. He further contends that the wife of the defendant by name
Kondamma purchased an extent of Ac.0.91 cents of wet land in Survey
No.664 at Gowravaram village by paying an amount of Rs.56,000/- and the plaintiff executed a registered sale deed on 3-6-2006 and delivered possession to the wife of the defendant and on the same day, the defendant paid an amount of Rs.76,000/- towards full satisfaction of the amount due under the above said two promissory notes, dated 21-10-2005 and 16-3-2006 to which the plaintiff passed a receipt of Rs.76,000/- on the same day on 3-6-2006 to the defendant towards full satisfaction of the amounts due under the two promissory notes as the plaintiff has not brought the promissory notes and other documents at that time and agreed to return the promissory 4 notes and blank promissory note and the documents relating to the defendant. The said receipt was scribed by the very same document writer, prepared the registered sale deed, dated 3-6-2006 and the attestors of the sale deed also attested the said receipt signed and given by the plaintiff in the presence of the mediators and scribed after receiving the amount of
Rs.76,000/-. Thereafter, surprisingly the defendant received two notices,
dated 12-12-2007 from the plaintiff; one is claiming amount under the suit
promissory notes and another is claiming to register a sale deed regarding the property to an extent of Ac.0.47½ cents in Survey No.560, patta No.109, another extent of Ac.0.30 cents in Survey No.459/4 in Patta No.4 of wet land situated at Gowravarama village for which the defendant issued reply notice to both the notices of the plaintiff and also contends that having money transactions in between them for the last 30 years, the defendant is having some calculation slips scribed by the plaintiff and some promissory notes returned by the plaintiff and that the defendant need not pay the suit amount to the plaintiff under the suit promissory notes as the amount is already discharged. The present suit is filed only to harass the defendant for wrongful gains as the defendant did not accept for the excess interest of 36% per annum with compound interest claimed by the plaintiff when the defendant asked the plaintiff in the first week of December, 2007 demanding to return the above referred documents and promissory notes.
4) The Trial Court framed three issues and on merits, the suit was dismissed by considering the evidence of PWs.1 to 5 and Exs.A-1 to A-5 and DWs.1 and 2 and Exs.B-1 to B-3. Aggrieved upon the same, the plaintiff/appellant filed the present appeal and contends that the Trial Court failed to consider the evidence of PWs.1 to 5 and Exs.A-1 to A-4 and failed 5 to scrutinize the evidence of DWs.1 and 2 and Ex.B-1 and came to a wrong conclusion even though the defendant did not examine his wife Devarapalli
Kondamma who purchased the property on 3-6-2006 from the plaintiff who was also allegedly present on the alleged Ex.B-1 and that Ex.B-1 doesn’t even contain the signature of DW-2 which itself shows that Ex.B-1 is fabricated in order to evade the amounts payable under Exs.A-1 to A-3 and that the defendant did not even file the said registered sale deed, dated 3-6-2006 executed in favour of the wife of the defendant to compare the signatures thereon with the signature in Ex.B-1 receipt and also questions the long delay of 1½ years for not giving any report, for not returning the promissory notes till the issuance of Ex.A-4 notice, dated 12-12-2007 and further contends without production of Exs.A-1 and A-2, how the amounts are calculated for passing Ex.B-1 receipt and also pointed out the admissions of DWs.1 and 2 during their cross-examination and contends that Ex.B-1 is a falsely created document and that non sending of Ex.B-1 receipt to the expert is fatal to the case of the defendant since the burden is heavy on the defendant to prove Ex.B-1 and that the evidence of PWs.1 to 5 and Exs.A-1 to A-3 proves the case of the plaintiff. The plea of the renewal promissory notes of the defendant cannot be taken into account as the defendant did not even file the earlier promissory notes. Hence, the Judgment and decree of the Trial Court is contrary to law, weight of evidence and probabilities of the case and prays to set aside the Judgment and decree of the Lower Court.
5) The appellant/plaintiff filed the above two I.As., one under Order 41 Rule 27 r/w sec.151 C.P.C. to accord permission to adduce further evidence by sending Ex.B-1, receipt, dated 3-6-2006 to the Handwriting expert for comparison of the disputed signature thereon with the admitted 6 signatures of the petitioner/appellant and another is u/s 45 of the Evidence
Act to send Ex.B-1 receipt to the Handwriting expert for comparison of the disputed signature therein with the admitted signatures of the petitioner/appellant disputing his signature on Ex.B-1 stating that it is forged and fabricated in collusion with DWs.2 and 3 and the said attestors are his close associates and that the Lower Court mainly came to a conclusion that he did not take any steps to send Ex.B-1 for comparison of the disputed signatures thereon to the Handwriting expert and dismissed the suit though there is heavy burden lies on the respondent/defendant who did not take any steps to send Ex.B-1 receipt to the Handwriting expert for comparison.
6) The respondent/defendant filed similar counters in both the petitions denying the material allegations made in the petitions and pray for dismissal of the petitions as there is no need to send the document to the expert to receive the opinion of the expert since the opinion given by the expert is not the conclusive proof of evidence and on the other hand, the scribe and attestors of Ex.B-1 were already examined who categorically stated regarding execution of the receipt by the petitioner towards full and final settlement of the promissory notes 3 in number and on the other hand, the petitioner did not done the same in the Lower Court and the Judgment of the Lower Court specifically mentioned as the petitioner has not taken any steps to send the document to the expert and the present petition is filed only to protract the proceedings in the appeal. The petitioner is not entitled to send the document to the expert and not entitled to receive additional evidence at this stage and pray for dismissal of both the petitions.
7) The two I.As. are also heard along with the main appeal.
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8) The points for consideration are—
1. Whether the petitioner/appellant is entitled to send Ex.B-1 to the Handwriting expert for comparison and to receive the expert opinion as an additional evidence?
2. Whether the appellant/plaintiff is entitled to recover the amounts as prayed for?
3. Whether the Judgment of the Trial Court is sustainable?
9) POINTS 1 to 3:-
All the three points are to be dealt with simultaneously in order to come to a right conclusion in view of the rival contentions. The appellant/plaintiff filed the present suit against the respondent/defendant for recovery of Rs.1,72,890/- towards principal and interest due on three promissory notes, dated 21-10-2005, 16-3-2006 and 12-8-2006 for
Rs.41,000/-, Rs.28,000/- and Rs.43,200/- respectively with subsequent interest whereas the respondent/defendant contends that the earlier two promissory notes, dated 21-10-2005 and 16-3-2006 are renewal promissory notes in view of the money transactions in between the appellant/plaintiff and the respondent/defendant and the third promissory note is fabricated with the aid of his signature obtained on the blank printed promissory note in connivance with the scribe and attestors of Ex.A-3 promissory note and also pleaded the discharge of the earlier two promissory notes marked under
Exs.A-1 and A-2 under Ex.B-1 receipt, dated 3-6-2006 passed by the appellant/plaintiff towards full satisfaction of his claim and agreed to return the promissory notes and blank promissory note belonging to the defendant subsequently. It is the specific contention of the appellant/plaintiff that the 8 respondent/defendant never paid any amount and never discharged the said dues under Exs.A-1 to A-3 promissory notes and the alleged Ex.B-1 receipt,
dated 3-6-2006 is a forged and fabricated document having created by the
respondent in collusion with the scribe and attestors of Ex.B-1 receipt, dated 3-6-2006 who were examined DWs.2 and 3 and the other attestor N.
Masthanaiah and that the learned Trial Court came to a wrong conclusion that he did not even request the Court to send his disputed signature on
Ex.B-1 to compare with his admitted signatures and prays to send Ex.B-1 receipt, dated 3-6-2006 to the Handwriting expert for comparison with the admitted signatures of the petitioner/appellant and also relied on some case law. But the learned counsel for the respondent/defendant on the other hand submitted that at this stage, there is no need to send the document to the expert since the Lower Court already compared the signature as an Expert u/s 73 of the Indian Evidence Act and came to a right conclusion based on the evidence of the scribe and attestors of Ex.B-1 and further contends that the opinion given by the Expert is not a conclusive proof of evidence as per the settled law and relied on a decision reported in 2006(3) ALD 146 in
Pulaparti Sankuntala Bai Vs. Mygapula Ramanjaneyulu, a single Judge decision of our High Court, wherein His Lordship observed— “The trial Court has already expressed its view, that it can undertake comparison of that document, by itself, under Section 73 of the Act. It is not as if the opportunity for examination of the document, through expert is closed, once for all. In case, the Court itself finds the necessity of sending the document for expert’s opinion, after undertaking a comparison by itself, it shall always be open to do so. However, this exercise can be undertaken only by the Court, on its own accord, and after recording cogent reasons.”
The learned counsel for the respondent/defendant also relied on another decision reported in 2006(4) ALD 460 in Kaveti Sarada Vs. Vemineni 9 Hymavathi, which is a Single Bench decision of our High Court wherein His
Lordship opined the above same view that Expert opinion is not a conclusive proof but it is only a piece of evidence which requires to be taken into consideration along with other evidence produced by the parties and ultimately it is for the Court to arrive at its own conclusion of appreciation of the entire evidence available on record. The other decision relied on by the learned counsel for the respondent/defendant reported in 2008(1) ALD 531 in Perugu Rama Rao and another Vs. Palagani Ratnakumari wherein
His Lordship opined based on the Judgment in 2006(3) ALT 607 in
Pulaparti Sankuntala Bai Vs. Mygapula Ramanjaneyulu wherein it was observed— “The importance of the timing and the stage at which, an application under Section 45 of the Act, must be filed, even during the pendency of a suit. It was pointed out that an application for such a relief cannot be entertained, after the witnesses, particularly whose signatures are in dispute; have been subjected to chief and cross-examinations. The scrutiny becomes much more stringent when the application is filed for the first time, at the stage of appeal.”
On the above same point, he relied on another decision reported in 2010(5)
ALD 288 of our High Court. He relied on another decision reported in 2012(6) ALD 692 in Papini Ramulu Vs.A. Lavanya, another Single Bench decision of our High Court wherein His Lordship opined— “When the Trial Court is in a position to compare disputed signature on pronote with that of admitted signature of defendant, question of sending the same for expert opinion does not arise.”
He relied on another decision reported in 2012(3) ALD 755 in M. Pentaiah
Vs. B. Parameshwar , another Single Bench decision of our High Court wherein His Lordship observed:
10 “Section 73 of the Act empowers Court to form its own opinion on comparison of signatures or thumb impression. Unless the Court opines that, in a given case, the opinion of an expert is necessary, it need not refer every document to the expert’s opinion on mere asking by one of the parties.”
10) The learned counsel for the appellant/plaintiff on the other hand relied on a decision of our High Court in Mohammed Sultan Vs. Miss
Nawahunnisa wherein His Lordship observed:
“Although it is permissible for the Courts to compare the handwriting, it is generally a hazardous test and it should not be resorted to except in clearest cases without the aid of experts.”
The learned counsel for the appellant/plaintiff also relied on another decision reported in 2012(4) ALT 45 in Chidella Venkateswarlu Vs. Gurram Pushpa
Latha wherein His Lordship of Single Bench Decision of our High Court observed:
“If the Court is satisfied with the pleadings of parties and if the facts of the case justify sending of disputed document for expert’s opinion, its decision cannot be questioned only on the ground of existence of time lag between the admitted and disputed signatures.”
In a Single Bench Decision of our High Court relied on by the learned counsel for the appellant/plaintiff in ASMP No.1008 of 2011 in A.S.No.315 of 2009 in Meraboina Krishnaiah Vs. Nuvvula Sanjeevamma when a petition filed u/s 47 of the Indian Evidence Act before the Hon’ble High
Court that the High Court to send disputed documents Exs.A-1 and A-2 promissory notes together with admitted signatures which were available on record for its comparison and to get its opinion from the Forensic Science
Laboratory, Nampally at Hyderabad, pending disposal of A.S.No.315/2009 presented to the High Court against the judgment and decree of the Court of 11 the II Additional Senior Civil Judge, Nellore, made in O.S.No.345 of 2006,
dated 16-2-2009, His Lordship observed:
“Without expressing any opinion about the merits and demerits of the case or with regard to the contention of the appellant/defendant that there is variation in the thumb marks found on Exs.A-1 and A-2 and Exs.B-3 and B-4, it appears that since Exs.B-3 and B-4 were not considered by the trial Court in proper perspective. In the circumstances, A.S.M.P.No.1008 of 2011 is allowed and Exs.A-1 and A-2 and Exs.B-1 to B-4 are directed to be sent to the Government Forensic Laboratory, Hyderabad and directed to deposit an amount of Rs.10,000/- to meet the expenses of the Expert, his fee etc., tentatively.”
11) Coming to the facts of the present case on hand, the appellant/plaintiff clearly disputed his signature on Ex.B-1 receipt and denied the receipt of Rs.76,000/- from the defendant towards final settlement of the dues under Exs.A-1 and A-2 but did not file any application before the
Trial Court to send Ex.B-1 to the Expert for comparison of the disputed signature therein with his admitted signatures. But the respondent/defendant examined DWs.2 and 3, the alleged scribe and attestor of Ex.B-1 in support of his contention. But, it is the contention of the learned counsel for the appellant/plaintiff that DWs.2 and 3 are the close associates of the defendant and in collusion with them, Ex.B-1 is fabricated and further contends that the Trial Court observed in the Judgment that he did not take any steps to send Ex.B-1 receipt to the Expert for comparison of the disputed signature with his admitted signatures. As seen from the judgment of the Trial Court, it is clear that though the plaintiff denied to have passed the receipt contending that his signature is forged one, for the reasons known to him, he did not even request the Court to send Ex.B-1 to compare with the admitted signatures and further observed that since the defendant could able to prove the payment of Rs.76,000/- and passing of Ex.B-1 receipt, the burden is 12 heavy on the plaintiff to prove that the defendant forged his signature on
Ex.B-1 receipt. The plaintiff did not make any attempt to prove his plea of forgery and later, the Lower Court has compared the disputed signature on
Ex.B-1 with the admitted signatures of the plaintiff available on the documents u/s 73 of the Indian Evidence Act and arrived at an irresistible conclusion that the signature on Ex.B-1 receipt is that of the plaintiff. As per the decision of our High Court in 1997(1) L.S. 496 in Mohammed Sultan
Vs. Miss Nawahunnisa, His Lordship categorically observed:
“The comparison by Court with regard to handwriting is a hazardous test. Only in rarest of rare cases, it should be adopted, but not a routine manner.”
As per the other decision of the Hon’ble High Court in ASMP No.1008/2011 in
A.S.No.315/2009, the Hon’ble High Court allowed the application of the appellant
and directed to send the documents for comparison to the Government Forensic
Laboratory for expert’s opinion in the appeal. Even as per the decision relied on by the learned counsel for the respondent/defendant in 2006(4) ALD 460, His
Lordship opined that expert opinion is not conclusive; it is only a piece of evidence which can be taken into consideration along with other evidence produced by the parties. Though the petitioner/appellant did not file any petition in the Trial Court requesting the Trial Court to send the disputed document to the expert during the pendency of the trial, in view of the observation made by the
Trial Court in its judgment, the present application is filed by the petitioner/appellant requesting the Court to send the disputed document to the expert for comparison during the pendency of the appeal to take it as an additional evidence along with the other evidence on record for a just decision of the case.
His Lordship of our High Court in 2006(4) ALD 460 referred the Apex Court decision in State (Delhi Admn.) Vs., Pali Ram, AIR 1979 SC 14 and observed— 13 “Even to prove the handwriting, which is in the nature of comparison, the duty is cast upon the Court to use its own mind and eyes to compare the admitted writing with the disputed one. It was also held that when the Court forms an opinion that the assistance of an expert is essential to enable it to arrive at a just determination of the issue of the identity of the disputed writing, the fact that this may result in the filling of loopholes in the prosecution case is purely a subsidiary factor.”
Admittedly, the expert opinion will only have persuasive value and it is not conclusive and not binding on the Court. Under section 73 of the Evidence
Act, the discretion is always available with the Court, of-course, it is a hazardous task, the document must be compared with scientific manner. If the document is sent to the expert, the expert’s opinion will come to an aid in adjudication of such dispute to arrive at a right conclusion apart from the evidence on record. Even as per the finding of the Trial Court, he find fault with the petitioner for not sending the document to the expert and on that, he compared the disputed signature on Ex.B-1 with the admitted signatures of the plaintiff available on the record which was disputed by the petitioner on the ground that the comparison by the Court is not scientific. The comparison of the disputed signature is a hazardous task and in view of the contention raised by the petitioner/appellant, it is just and reasonable to send
Ex.B-1 disputed document to the handwriting expert for comparison and opinion with the costs of the petitioner/plaintiff which would be an aid to the
Court to arrive at right conclusion on the disputed issue. The sending of the document to the expert is no way prejudicial to the other party since the opinion of the expert is only a persuasive value and it could be taken into consideration along with other evidence available on record. In view of the pleas raised by the appellant, the Court is of the considered opinion that the assistance of an expert is essential to enable the Court to arrive at a right conclusion with regard to the disputed document Ex.B-1. The decisions 14 relied on by the learned counsel for the respondent/defendant are no way helpful to the respondent/defendant in view of the decisions relied on by the learned counsel for the petitioner-appellant and in view of the Apex Court decision in 2010(2) ALD 86 (SC) in H.V. Vedavyasachar Vs. Shivashankara and another, relied on by the learned counsel for the petitioner/appellant, the application filed by the appellant to adduce additional evidence is allowed; the petitioner/appellant is permitted lead additional evidence by sending the disputed document to the expert and after receipt of expert’s opinion, the appeal will be disposed of on merits by taking the same into consideration along with the other evidence on record. Accordingly, I have no hesitation to answer the 1st point in favour of the petitioner/appellant and in view of the finding, the points 2 and 3 need not be answered at this stage and they will be answered after receipt of the expert’s opinion. In view of my above findings, the petitioner is directed to deposit an amount of Rs.5,000/- tentatively to meet the expenses of the expert and directed to file a memo to specify the admitted signatures of the petitioner/plaintiff to be sent along with Ex.B-1 for comparison on or before 26-4-2013.
11) IN THE RESULT, the petitions in I.A.Nos.88 and 89 of 2012 are allowed. The petitioner is directed to deposit an amount of Rs.5,000/- tentatively to meet the expenses of the expert and shall file a memo to specify the admitted signatures of the petitioner/appellant to be sent along with Ex.B-1 for comparison on or before 26-4-2013. The appeal shall be called on 26-4-2013 for additional evidence.
Dictated to Senior (Personal) Assistant, transcribed by him, Corrected and
pronounced by me in Open Court, this the 22nd day of APRIL, 2013.
PRL. DISTRICT JUDGE,
Nellore.
15 Appendix of evidence Nil.
Prl.D.J. Nellore.