IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 RFA.No. 424 of 2010() ------------------------------- OS.144/1997 of SUB COURT, MAVELIKKARA .................... APPELLANT/PLAINTIFF --------------------------------- K.SADASIVAN, S/O. KUNJIKRISHNA CHANNAR, PUTHENPURACKAL HOUSE,KADAVOOR MURI, MANNAMANGALAM VILLAGE, KARIPPUZHA P.O. BY ADV. SRI.R.RAJASEKHARAN PILLAI RESPONDENT(S): DEFENDANT --------------------------------------------- B. UNNIKRISHNA NAIR, S/O. BHASKARAN NAIR KALATHIL HOUSE, PERINGALA MURI, KRISHNAPURAM VILLAGE, KAYAMKULAM. BY ADV. SRI.B.RENJITHKUMAR THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.424 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of November, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.This appeal is by the plaintiff in a suit for recovery of money allegedly due under a promissory note. 2.According to the plaintiff, the defendant issued Ext.A1 DPN on 22.11.1995, in consideration of which, an amount of Rs.3.75 lakhs was lent by the plaintiff to the defendant. It was also pleaded that Exts.A2 and A3 title deeds of the immovable properties of the defendant were deposited with the plaintiff contemporaneous with the execution of Ext.A1. On this plea, the suit was filed on 10.11.1997, the date on which Ext.A7 postal article is returned(Unserved lawyer's notice to the defendant). The cause of action for the suit was stated as having arisen on 22.11.1995, the RFA424/10 -: 2 :- date of the execution of promissory note and on 22.10.1997, the date on which the lawyer's notice was sent to the defendant. 3.The suit was resisted denying the whole transaction. The execution of Ext.A1 was denied and it was characterized as a fabricated document. The defendant said that his uncle Madhusoodanan Nair is a person with an immoral track record and he had stolen some documents from the defendant's home and Exts.A2 and A3 were apparently handed over by him to the plaintiff. At trial, the plaintiff gave evidence as P.W.1. P.Ws.2, 3 and 4 were examined, of whom, P.Ws.3 and 4 are shown to be the witnesses in the promissory note which is marked as Ext.A1. The defendant gave evidence as D.W.1 and his father gave evidence as D.W.2. 4.After the evidence was closed, Ext.A1 and other relevant documents, including admitted documents, were sent to the State Forensic Science RFA424/10 -: 3 :- Laboratory of the Police Department. The report of the FSL Assistant Director (Document-Civil) is that the questioned writings stamped and marked Q2 is unlikely to be written by the person who wrote the standard writings and signatures. Vivid reasons are given in support of the opinion of the expert. We have seen the certified copy of that report as placed before us by the learned counsel for the defendant, though we find that records are sent up to this Court without including such report. The office will note this incident and issue appropriate directions to the court below to ensure that all materials are appropriately sent up when records are called for. Failure to do so, may even be a situation of dereliction of duty by those concerned. 5.We have seen Ext.A1 and the signatures thereon. We have compared those signatures with the signature of the defendant in his service book Ext.X1, under attestation of the Principal of the College where he works as the Lecturer. In our RFA424/10 -: 4 :- view, there is no similarity between the disputed signature in Ext.A1 and the undisputed signature in Ext.X1. Even the very first stroke of the signature entirely differs. We have also examined the other documents which were relied on by the forensic expert and we do not find any reason to disagree with the views of the forensic expert. Added to this is the reason that the court below has said, to wit, that in spite of the report of the forensic expert being on record, the plaintiff did not choose to examine the forensic expert and elicit any material successfully challenging the contents of that report. 6.A formidable aspect that arises in this case is that while the suit is only on a DPN which is an instrument covered by the Central Stamp Act, the DPN in hand is not one that is stamped in accordance with law. No revenue stamp is affixed on the DPN. It is engrossed on a stamp paper. That is insufficient in terms of the Central Act. Not only that, unlike in the State Act, the RFA424/10 -: 5 :- defect or deficiency in relation to levy of stamp duty under the Central Act, on the DPN, is not rectifiable by any process after its production in the court. Therefore, Ext.A1 produced as DPN is a void one. 7.Keeping aside the objection as to the stamps on the DPN, we examined the other materials also. The plaintiff, P.W.1, is an ex-service man. He, thereafter, joined the KSRTC. After retirement from there, he works as an accountant in a local hospital for Rs.500/- per month. His case is that an item of property belonging to his daughter was sold for 3,80,000/- and odd rupees and that amount was in a fixed deposit in a nationalized bank. According to him, he had withdrawn amounts from that and had given Rs.1 lakh to one of the witnesses who utilized it in connection with the marriage of his daughter and later, returned it to the plaintiff on 22.11.1995, the date on which that amount is also used for the alleged lending to the defendant. The plaintiff says that he had RFA424/10 -: 6 :- made drawals from his accounts to provide the entire funds to the defendant. In spite of Ext.A4 pass book being produced, we find that the evidence of P.Ws.1, 2, 3 and 4 does not inspire confidence to hold in favour of the plaintiff on the facts and circumstances. Not only that, having found that Ext.A1 is a fabricated document, it dissuades us from accepting the case set up by the plaintiff as containing a ring of truth. We looked into these aspects only because there was a suggestion by the learned counsel for the appellant that Exts.A2 and A3 being available with the plaintiff, it could be treated as a case where there was at least a simple mortgage. We are not impressed to take that view. This is all the more so because there is no suit on any mortgage and the suit is only one on an alleged promissory note. We are also inclined to take the view that the observations made by the court below that there could have been some lending and Exts.A2 and A3 would have been handed over to the plaintiff in connection with such lending and RFA424/10 -: 7 :- Ext.A1 would have been a blank stamp paper for the purpose of a receipt etc. were not called for. Such consideration was unnecessary to decide the suit from which this appeal arises. For the aforesaid reasons, we affirm the decree and judgment of the court below and dismiss this appeal however without any order as to costs. There is no reason for the continued custody of Exts.A2 and A3 by the plaintiff, now that plaintiff's suit on the basis of Exts.A1, A2 and A3 having failed. We, therefore, direct the court below to return Exts.A2 and A3 to the defendant. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/0712