IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3782 of 2011 (O&M) Date of decision: 19th September, 2011 Naresh Kumar … Appellant Versus Harnek Singh … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Surinder Garg, Advocate for the appellant. KANWALJIT SINGH AHLUWALIA, J. Plaintiff, having failed in two rounds of litigation, has filed present regular second appeal. Appellant-plaintiff Naresh Kumar, on the basis of a pronote Ex.P1 and receipt Ex.P2 had instituted a suit for recovery of Rs.3,33,500/- against respondent-defendant Harnek Singh. Out of the above said amount of Rs.3,33,500/-, Rs.2,50,000/- were claimed as principal and Rs.83,500/- as interest @ 12% per annum. The pronote Ex.P1 and receipt Ex.P2 are dated 7th April, 2003. The sum and substance of the case set out in the suit was that the defendant had borrowed Rs.2,50,000/- from the plaintiff and in token of payment he had executed a pronote and receipt on 7th April, 2003. Failure on the part of defendant to make payment of the amount borrowed led the plaintiff to institute the suit. Upon issuance of notice of the suit, defendant raised preliminary objections to the effect that the plaintiff had not approached the Court with clean hands and had suppressed the true facts. It was stated that the defendant was a poor farmer and had only three/four acres of land. It was further stated that he had purchased pesticides Regular Second Appeal No.3782 of 2011 (O&M) from the shop of plaintiff for Rs.4,700/- only. At the time of purchase of pesticides, since funds were not available with him, on a condition put by the plaintiff, he had filled a pronote for Rs.10,000/- for security. At that time, only Rs.10,000/- were written on the profroma of pronote and no other words were written on it or the receipt. Furthermore, the pronote was not signed by any witness. An unusual feature of this case is that both, Harish Chander and Gulzari Lal attesting witnesses of the pronote and receipt, appeared on behalf of the defendant to support his case as DW-1 and DW-2 respectively. Plaintiff himself appeared as PW-1 and examined one Tirath Singh as PW-3, who according to the appellant-plaintiff had witnessed the transaction and execution of the documents, i.e. pronote Ex.P1 and receipt Ex.P2 when he had come to the shop of the plaintiff to deliver a courier. The trial Court discarded the testimony of plaintiff-Naresh Kumar, who appeared as PW-1 and Tirath Singh PW-3. While rejecting the deposition of Tirath Singh PW-3, the Court held that in cross- examination this witness had not brought any identity card of DTDC Courier Service from which it could be inferred that he was an employee of the said Courier Service. Furthermore, he had not produced any record regarding delivery of any courier to the plaintiff on 7th April, 2003. He could also not tell about any other deliveries made on that day. Even he could not give any proof of his visit to the shop of the plaintiff and he also failed to state as to what was the day on 7th April, 2003. The following findings of fact given by the trial Court assume importance: “9. … … … Though it is not necessary to cite and examine the attesting witnesses, but in such type of cases where the execution itself is surrounded by suspicious 2 Regular Second Appeal No.3782 of 2011 (O&M) circumstances and the pronote contains cuttings and overwritings, the corroboration from other witnesses is required, but there is no other corroboration of any witness to his statement. Both the alleged attesting witnesses of the receipt have appeared from the defendant side. The only statement from which the plaintiff has tried to seek support is statement of PW3 Tirath Singh who is alleged to have come present at the shop of the plaintiff to deliver some courier when the pronote and receipt were written. However, in his cross-examination this witness has stated that he has not brought any identity card of DTDC courier service from which it could be known that he is employee of said courier service. He further stated that he has not brought any record regarding delivery of courier on 7.4.2003. XXXX XXXX XXXX XXXX XXXX XXXX On the other hand the defendant examined DW1 Harish Chander and DW2 Gulzari Lal, who as per the case of the plaintiff had attested the pronote and receipt Ex.P1 and Ex.P2. Both of them have stated that the defendant had purchased pesticides from the plaintiff and in lieu thereof the pronote and receipt for a sum of Rs.10,000/- had been filled in and at that time only date 7.4.2003 and figure 10,000/- had been written in the pronote and receipt. The version has remained in their cross-examination. There is nothing to show that they have intentionally denied the case of the plaintiff. Rather, when the plaintiff made cuttings and alterations, they come to the Court from the side of the defendant and deposed as per reality… … …” Testimony of the handwriting and fingerprint expert Anil Kumar Gupta examined by the plaintiff as PW-2 was also not found worth credence. The trial Court relied upon the testimony of handwriting 3 Regular Second Appeal No.3782 of 2011 (O&M) and fingerprint expert namely Sanjeev Sharma DW-4 to hold that figures ’10,000’ and ‘5,000’ were subsequently converted to ‘2,50,000’ and ‘1,25,000’ respectively. The trial Court observed as under: “9. … … … the cuttings and over writings made on the pronote and receipt are of such nature, which can be observed by naked eyes and there is no doubt that ’10,000’ has been changed to ‘2,50,000’ by converting digit ‘1’ as ‘5’ and digit ‘2’ adding prior to digit ‘5’ and ‘5,000’ has been changed to ‘1,25,000’ by adding digits ‘1,2’ … … …” The findings given by the trial Court have been affirmed by the lower appellate Court. I have heard Mr. Surinder Garg, counsel for the appellant. He has placed much reliance upon Section 18 of the Negotiable Instruments Act, 1881 to state that in case the amount is filled in figures as well as in words then the amount written in words is to be taken into consideration as the correct amount. Learned counsel has further stated that there is always a presumption in favour of the pronote. The above said submission made by counsel for the appellant only arises if he is able to dislodge the concurrent finding of fact given by both the courts below that figures were altered in the pronote. Truthfulness and genuineness of the pronote could only be inferred from the testimony of plaintiff Naresh Kumar PW-1 and Tirath Singh PW-3. The courts below have rightly held that the appellant-plaintiff is guilty of introducing Tirath Singh PW-3 who has been dubbed as a procured witness. The reasons stated by both the courts below to hold that the presence of Tirath Singh PW-3 at the spot is not made out, are cogent. Thus, the appellant- plaintiff is guilty of coining false version. 4 Regular Second Appeal No.3782 of 2011 (O&M) This Court cannot ignore the fact that both the attesting witnesses of the documents, i.e. Harish Chander DW-1 and Gulzari Lal DW-2 have not supported the case of the appellant-plaintiff. The documents relied upon by the plaintiff to say that Harish Chander DW-1 is a false witness in no way advance the case of the appellant-plaintiff, as onus was upon appellant-plaintiff to prove execution of the pronote Ex.P1 and receipt Ex.P2. Furthermore, in the present appeal this Court will not do re-appraisal and re-appreciation of the evidence to negate the finding of fact given by the courts below that forgery is apparent to the naked eye. The view formulated by both the courts below is one which is possible on the facts of this case. Hence, there is no merit in the present appeal and the same is dismissed, as the proposed questions of law on the facts of this case, in no way arise and could not be termed as substantial. Civil Misc. No.10779-C of 2011 This application has been filed under Order XLI Rule 27 read with Section 151 CPC for permission to the appellant to produce and prove on record income tax return of M/s Gupta Sales Corporation Proprietorship Concern of the appellant for the period from 1.4.2004 to 31.3.2005 and copies of Khata-bahi and Rokar-bahi of the said Concern for the year 2003-04 and translation copies thereof as additional evidence. A grievance has been made that the lower appellate Court had dismissed a similar application vide its order dated 28th April, 2011, on the day when appeal was dismissed. 5 Regular Second Appeal No.3782 of 2011 (O&M) I have perused the order whereby the prayer for additional evidence was declined. The lower appellate Court has rightly held that the plaintiff was not diligent enough to prove these documents on record, as these documents were in his knowledge. The Court further held that introduction of these documents at a highly belated stage cannot rule out preparation of these documents as an afterthought. The conduct of the appellant-plaintiff has been termed as a gross negligence. Taking totality of circumstances into consideration which have been stated above for dismissal of the appeal and in context thereof, no ground is made out to allow the present application. Hence, the same is also dismissed. In view of dismissal of the appeal and the application viz. Civil Misc. No.10779-C of 2011, other Civil Misc. applications cannot be entertained and thus, they stand disposed of accordingly. [KANWALJIT SINGH AHLUWALIA] JUDGE September 19, 2011 rps 6