IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 SA.No. 606 of 1996(E) ------------------------------- AS.41/1989 of SUB COURT, OTTAPPALAM OS.267/1987 of MUNSIFF COURT, OTTAPPALAM .................... PLAINTIFF/ RESPONDENT/ APPELLANT(S): ------------------------ * PADMANABHAN NAIR, S/O. MELAPPATTUPAYOOR VALAYANGATT- KALLIANI AMMA, RESIDING IN CHALAVARA AMSOM DESOM IN OTTAPPALAM TALUK.( DIED). *ADDL. APPELLANTS IMPLEADED 2. MR.AMBIKA SEKHARAN, D/O.LATE PADMANABHAN NAIR, MELEPPATTUPAYOOR HOUSE, CHALAVURA AMSOM AND DESOM, IN OTTAPPALAM TALUK, PALAKKAD DIST. 3. ACHUTHANKUTTY, S/O. LATE PADMANABHAN NAIR, RESIDING AT DO. DO. 4. SARADADEVI M.P., D/O. DO. R.AT DO. DO. 5. PARVATHI BALAKRISHNAN, D/O. DO. DO. R.AT. DO. DO. 6. RAMRAJ. M.P., S/O. DO. R/AT DO.DO. ADDL. APPELLANTS 2 TO 6 ARE IMPLEADED RECORDED AS THE LEGAL HEIRS OF THE DECEASED APPELLANT AS PER ORDER DTD. 08.11.1999 ON CMP. 18.3.99. BY MR.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE BY ADVS. MR.KODOTH PUSHPARAJAN MR.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES SMT.PRABHA R.MENON S.A. NO.606/1996 DEFENDANT/ APPELLANT/RESPONDENT(S): ----------------------- N.THOMAS, S/O.NELLIPPARAMBU VEETTIL JOSEPH, RESIDING AT QUARTERS IOE, KANHIRAPPUZHA IRRIGATION PROJECT, KANHIRAPPUZHA AMSOM DESOM, MANNARGHAT TALUK. BY MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE MR.P.B.KRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON 10/03/2010 DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- SA No.606 of 1996-E ------------------------------------- Dated 10th March 2010 Judgment The plaintiff, who had his suit decreed by the Court below, but had it reversed in appeal, is the appellant. 2. The suit was based on Ext.A1 promissory note, dated 20.09.1987 said to have been executed by the defendant in favour of the plaintiff. As per that document, the defendant had to pay an amount of Rs.12,000/- with 12% interest per annum. Since the amount remained unpaid and the notice was not favourably responded, the suit was laid. 3. The defendant entered appearance and denied the execution of the document. He pointed out that in fact, it was the plaintiff, who had borrowed a sum of Rs.14,750/- and he had paid the same by means of a cheque. The contention taken was that in order to avoid repayment of the said amount, the suit was laid by the plaintiff. The Trial Court raised the necessary issues for consideration. The evidence consist of the testimonies of PWs 1 and 2 and the documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendant marked Exts.B1 to SA No.606/1996 2 B7 and examined DW1. The Trial Court, on an evaluation of the evidence on record, came to the conclusion that the plaintiff had succeeded in proving that the promissory note was in fact executed by the defendant and accordingly decreed the suit. The defendant carried the matter in appeal as AS No.41/91 before the Sub Court, Ottappalam. The said Court on comparison of the signature on the promissory note with the other signatures available on record, came to the conclusion that the signature differed and accordingly allowed the appeal and dismissed the suit. Hence this Second Appeal. 4. In this SA, notice has been issued on the following questions of law. A. Whether the appellate Judge has not erred in concluding that the signature in the promissory note is not of the defendant without calling for an expert opinion exercising powers under S.73 of the Evidence Act when the trial Judge has positively found the signature to be that of the defendant ? B. Whether in view of the finding by the Trial Court that the signature in the promissory note is that of the defendant, is it not for the defendant to prove by expert opinion that the signature is not his to upset the decision of the Trial Court. SA No.606/1996 3 C. Has not the Court below erred in disregarding the cautions imposed by the Supreme Court in its decisions while interpreting the scope of the power of the Court under S.73 of the Evidence Act ? D. Whether Section 73 of the Evidence Act should be read in the light of Section 45 and always so when the procedure in the first part of Section 73 alone is followed ? E. Whether the learned Sub Judge was right in totally disregarding the evidence of PW2. “ 5. The learned counsel for the appellant pointed out that the First Appellate Court was not justified in reversing the Judgment and decree of the Trial Court and the Appellate Court was wrong in having compared the signatures and coming to the conclusion that the promissory note was forged. It is also pointed out that Ext.A2 diary kept by the plaintiff was produced to show that there have been earlier monetary transactions between the plaintiff and the defendant. It was not intended to show that the amount involved in the suit was given to the defendant. There is no justification for the Court below to hold that the plaintiff did not have sufficient means to pay Rs.12,000/- to the defendant. There has been a total mis-appreciation of evidence in the case and that has resulted in injustice. It is, therefore, pointed out that the appellate decree may be set aside. SA No.606/1996 4 6. The learned counsel for the respondent, on the other hand, pointed out that the Court below has considered all the relevant aspects in considerable detail and had come to the conclusion that the promissory note was a forged one. There was no document for the plaintiff to show that the amount has been given to the defendant. The learned counsel also stressed that is inconceivable that when on an earlier occasion, the plaintiff noted down in his diary the amounts given to him and returned by him, the entry relating to Rs.12,000/- given to him would not have been entered in the diary. In short, the contention of the learned counsel for the respondent is that no grounds are made out to interfere with the judgment of the First Appellate Court. 7. The definite stand of the plaintiff was that Ext.A1 was executed by the defendant after receiving Rs.12,000/-. It is spoken to by PW1 - the plaintiff that the defendant used to stay in his house and also keep his working tools in his house. He also speaks about the execution of the promissory note. 8. It is significant to notice that the Trial Court compared the signatures and came to the conclusion that the signature found on A1 was that of the plaintiff. The First Appellate Court undertook the very same exercise and found SA No.606/1996 5 otherwise. There is, thus, inconsistent findings regarding this aspect. 9. It is interesting to note that the ploy adopted by the defendant was to deny everything that was put to him. He denied that he had executed Ext.A1 promissory note. He denied that he had borrowed any amount from the plaintiff. He denied the allegation that he had resided in the house of the plaintiff or that he had kept his working tools in his house and ultimately he denied the signatures on the affidavit filed by him also. It is true that the plaintiff had not produced any document to show that he had paid Rs.12,000/- to the defendant. It is very clear from the evidence that the plaintiff and the defendant were very familiar to each other and they had monetary transactions. 10. The plaintiff has admitted that he has received Rs.14,750/- from the defendant. He says that it was the repayment of the amounts borrowed from him on earlier occasions. The defendant, on the other hand, contends that Rs.14,750/- was given to the plaintiff as a loan. Whatever that be, it is significant to note that the payment of Rs.14,750/- is almost very close to the payment of Rs.12,000/-. If as a matter of fact, the defendant had a case that the plaintiff was financially SA No.606/1996 6 very unsound, he would not have given Rs.14,750/- to him. 11. The Trial Court has compared the signatures available in Court and it came to the conclusion that the signature found on Ext.A1 is that of the plaintiff. Out of curiosity, this Court also tried to find out whether the signature found on Ext.A1 was that of the defendant. It is significant to notice that the signature on the affidavit filed by the defendant and which he denied while in the box, look similar to the signature found on Ext.A1. May be that, the diary produced by the plaintiff does not reveal the payment of Rs.12,000/-. He had offered an explanation that after 1983, he has not been maintaining a diary. He is an agriculturist and and he says that he has sufficient means to pay the sum of Rs.12,000/-. 12. The plaintiff would not have simply ventured to say that the defendant had stayed with him and kept his tools in his house. There is another very significant aspect and that is Annexure A3 agreement. It so happened that while the defendant was carrying out his contract work, two of his employees suffered injuries. Thereafter, the employees and the defendant entered into a compromise, which is evidenced by Ext.A3. The plaintiff was one of the witnesses to that document. SA No.606/1996 7 The defendant denied the signature on Ext.A3 also to be belonging to him. It is beyond comprehension that in order to gain support, the plaintiff would have ventured to concoct, fabricate and forge a document like Ext.A3. This shows the temperament of the defendant. After considering all these aspects, the Trial Court had come to the conclusion that the promissory note was, in fact, signed by the defendant. The First Appellate Court was, therefore, not justified in discarding the evidence of PW2 and other materials on record. 13. The conduct of the defendant is sufficient to show that he has received the amount. A reading of the Judgment of the Appellate Court shows that the only ground for entering the finding against the plaintiff was on the basis of the comparison of signatures. It is well settled by now that comparison of signatures cannot be the sole criterion for deciding a case. That is, at best, only a corroborative piece of evidence. The finding of the First Appellate Court, therefore, cannot be justified. So also, it cannot be said that the finding of the Trial Court was perverse or was contrary to the evidence on record. It was a plausible view. Viewed from that angle, interference by the Appellate Court was quite unwarranted. SA No.606/1996 8 14. In the result, this Appeal is allowed. The Judgment and decree in AS No.41/89 on the file of the Sub Court, Ottappalam are set aside and the Judgment and decree in OS No.267/87 on the file of the Munsiff's Court, Ottappalam are restored. The appellant will be entitled to his costs throughout. P.BHAVADASAN, JUDGE sta SA No.606/1996 9 P.BHAVADASAN, J. ======================== SA NO.606 OF 1996-E ======================== JUDGMENT DATED MARCH 2010 ========================= SA No.606/1996 10 P.BHAVADASAN, J. ------------------------------------- SA No.54 of 1996-F ------------------------------------- Dated 18th February 2010 Judgment P.BHAVADASAN, J. -------------------------------------------------------- SA No.261 OF 1995 -------------------------------------------------------- Dated 30th June 2009 Judgment SA No.606/1996 11