IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 AS.No. 741 of 1999(A) ------------------------------ [OS.NO.78/1995 OF II ADDL.SUB COURT,THRISSUR] .................... APPELLANT/DEFENDANT: -------------------------------------- ARAVINDAKSHAN, AGED 59 YEARS, S/O. KALLADI KRISHNAN, PANALLUR DESOM, MANALUR VILLAGE, THRISSUR TALUK. BY ADVS. SMT.DHANYA P. ASOKAN, SRI.K.S.SANJEEVKUMAR. RESPONDENT/PLAINTIFF: -------------------------------------- MOHANAN, AGED 39 YEARS, S/O. KONDASSERY LEELAVATHY AMMA, MADAMPATTU, PONALLUR DESOM, PONALLUR VILLAGE, THRISSUR TALUK. BY ADV. SRI.T.K.MARTHANDAN UNNITHAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.S.NO.741/1999-A: ORDER ON C.M.P. NO. 6122/1999 IN A.S. 741/1999 DISMISSED 16/06/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. ........................................... A.S.NO.741 OF 1999 ............................................. Dated this the 16th day of June, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Thrissur in O.S.No.78/1995. The brief facts necessary for the disposal of the appeal are stated as follows: 2. It is the case of the plaintiff that there was a demand for Rs.40,000/= on 4.5.1993 and an amount of Rs.40,000/= was given to the defendant on 5.5.1993 for which he had executed a promissory note in favour of the plaintiff. In spite of repeated demands the amount was not given, hence the suit. 3. On the other hand, the defendant had totally denied the transaction and it is stated that there was enmity between the plaintiff and the defendant and large number of litigations were also pending and the present promissory note is a forged one. So, the plaintiff is not entitled to any relief. 4. In the lower court PWs 1 and 2 and Dws 1 and 2 : 2 : were examined, Exts.A1 to A3, B1 to B9 and X1 and X2 were marked. On an appreciation of the materials, the trial court granted a decree in favor of the plaintiff and against that decision, the appeal has been preferred. 5. The point that arises for determination is whether the plaintiff has succeeded in proving execution of the promissory note and whether he is entitled to a decree as prayed for. 6. Heard the learned counsel for both sides. The learned counsel for the appellant would contend before me that the transaction is a shady one and there is no proper evidence to grant a decree in favour of the plaintiff. According to him, the suit was filed by the plaintiff against one Janaki Amma with whom the present plaintiff is residing and has obtained a decree in his favour. It is also contended that large number of civil and criminal cases are also pending between the parties. It is further contended by the learned counsel that the plaintiff is an accused in 138 N.I.Act cases and he has been convicted by the competent criminal courts. The point that arises for determination is regarding the execution of Ext.A1. There cannot be any : 3 : quarrel about the proposition that burden is squarely on the plaintiff to prove execution of the promissory note. If execution is proved, then presumption under Section 118 of the N.I.Act will come into play to help the plaintiff. The plaintiff - PW1 had deposed that on 4.5.1993 the defendant had approached him and requested for a loan of Rs.40,000/=. On 5.5.1993 the amount was given and at that time one Shanmugham was present. It is also stated that two stamps were affixed in the vertical position and signature was put by the defendant. The plaintiff has denied that it is a forged signature of the defendant. 7. PW2 is one Shanmugham. He has deposed before the court that he had come to see the plaintiff to take about some musical programme and he has witnessed the transaction wherein the defendant has put the signature in the promissory note. Though he has been cross examined at length, there is nothing to show that he is perjuring or giving false evidence in this case. Therefore the evidence of PWs 1 and 2 cannot be said to be unacceptable. 8. The learned counsel would contend before me that the signature in Ext.A1 is not properly proved. When such : 4 : a contention was raised, Ext.A2 was produced and the defendant in the examination had admitted his signature in Ext.A2. So far as the signature in the written statement, vakalath etc are concerned, it has to be remembered that the defendant has taken a copy of the promissory note and thereafter had signed in those documents. It is also to be stated when the defendant had set up a defence of total denial, it is certain that there will be a conscious attempt to detract from the original signature in a case. So that cannot be considered as a proper one for the purpose of comparison. 9. I have also compared the signature in Ext.A1 and that of the admitted signature of the defendant in Ext.A2. I am conscious of the fact that it is a very hazardous process and the courts are not expected to rely on comparison for the purpose of arriving at a decision. The Hon'ble Supreme Court has held that Section 73 of the Evidence Act permits comparison of handwriting by courts as well but with the caution that result of that alone shall not be a criteria for deciding the case or in other words, comparison can be used as a corroborative piece of material to convince the conscience of the court regarding signature. PWs 1 and 2 : 5 : as analysed by the court below which had the opportunity to see the witnesses had accepted their version. I do not find any material irregularity or illegality in their evidence. It appears to be intrinsically reliable and inherently probable. When such an evidence coupled with the comparison of handwriting is taken into consideration, it has to be stated that Ext.A1 promissory note is executed by the defendant in favour of the plaintiff. The documents produced in this case in the form of Exts.B1 to B9 are some of the documents which relate to subsequent to the execution of the promissory note. One of the contentions that the defendant and plaintiff were not cordial cannot be said to be corrected for the reason that the defendant had admitted his evidence that he is friendly with the plaintiff and he knows him for a very long time. The learned counsel then would submit before me that Exts.X1 and X2 would show that the alleged kuri transaction claimed by the plaintiff was in the year 1988 and there is nothing to show that he had taken money in the year 1993 as deposed by him in the examination. It has to be stated that Exts.X1 and X2 relates to 1988. When the plaintiff was in the box, no question was put to him regarding the : 6 : number of the kuri in which he had joined. The defendant did not take any step to produce the documents of 1993 to rule out the possibility of any amount being paid to the plaintiff by the kuri company in the year 1993. 10. DW2 would depose that he had perused the records and had come to the conclusion that nothing is paid in 1993. I am not prepared to accept his version without the documents before the court. 11. Therefore, I hold that it is not a material to discredit the evidence of PWs 1 and 2. From these discussions, I hold that the plaintiff has succeeded in proving execution of Exts.X1 and passing of consideration and there is no repayment of the amount. So, the plaintiff is entitled to the decree which has been correctly granted by the trial court. Therefore, the appeal lacks merit and it is dismissed but under circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. cl : 7 : M.N. KRISHNAN, J. ........................................... A.S.NO.741 OF 1999 ............................................. 16th day of June, 2010. J U D G M E N T : 8 :