RSA No.1032 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1032 of 2011 (O & M) Date of Decision: 01.03.2011 M/s Dhanna Ram Amit Kumar Commission Agents and others ……Appellants Versus Ram Sarup …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Ashok Goel, Advocate for the appellants. L.N. MITTAL, J (ORAL) Defendants- M/s Dhanna Ram Amit Kumar, Commission Agents and its partners Amit Kumar and Kamal Kumar, have filed the instant second appeal, having failed in both the Courts below. Suit was filed by respondent-plaintiff-Ram Sarup against the appellants-defendants for recovery of Rs.1,69,470/- alleging that the defendants borrowed Rs.1,26,000/- from the plaintiff on 17.04.2004 and receipt regarding the same was written and signed by defendant No.3-Kamal Kumar. The defendants agreed to repay the amount with interest at the rate of 1.50% per month. The defendants, however, failed to repay the loan amount or interest thereon. Accordingly, plaintiff sought recovery of loan amount and interest amount totalling Rs.1,69,470/-. The defendants broadly denied the plaint allegations. They denied having received Rs.1,26,000/- from the plaintiff or having issued any receipt regarding the same. It was rather pleaded RSA No.1032 of 2011 (O & M) - 2 - that the defendants advanced amount to the farmers. Plaintiff never visited the defendants. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Samana vide judgment and decree dated 01.03.2008 decreed the plaintiff’s suit for recovery of principal amount of Rs.1,26,000/- along with interest thereon at the rate of 12% per annum from the date of advancement i.e 17.04.2004 till recovery. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Patiala vide judgment and decree dated 07.10.2010. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Plaintiff himself stepped into the witness-box as PW-1 and stated according to his version. Dev Parshad PW-2, who is commission agent, stated that plaintiff had sold his wheat crop through his firm on 06.04.2004 and 07.04.2004 and had received Rs.1,56,610/- and Rs.50,115.20P respectively. The witness also produced ‘J’ Forms regarding the said sales. Lal Singh PW-3 corroborated the plaintiff’s version by deposing that in his presence, the defendants had taken the amount of Rs.1,26,000/- from the plaintiff on 17.04.2004 and defendant No.3 had issued receipt Ex.P-1 in his own handwriting and signature. On the other hand, defendant No.3-Kamal Kumar appeared in the witness box as DW-1 and broadly stated according to his version. RSA No.1032 of 2011 (O & M) - 3 - Plaintiff has produced very cogent evidence to prove the source of money. He sold his wheat crop 10-11 days prior to advancement of the loan amount to the defendants. Plaintiff’s own testimony is also corroborated by Lal Singh PW-3 in whose presence the amount was advanced and receipt was issued. On the other hand, there is sole, self-serving oral statement of defendant No.3 which is not sufficient to rebut the cogent evidence of the plaintiff. It is significant to notice that defendant No.3 is Kamal Kumar, but in the witness box, he stated his name as Kamaljit Singh. In the written statement, no plea was taken that defendant No.3 is Kamaljit Singh and not Kamal Kumar. No other evidence has either been led by the defendants to rebut the plaintiff’s evidence. Learned counsel for the appellants emphatically referred to Section 67 of the Evidence Act which stipulates that if a document is alleged to be written or signed by any person, signature or handwriting of that person must be proved. There is no dispute with the legal proposition. In fact, every fact pleaded by a party is required to be proved. Same principle applies for proving signature or handwriting of a person. Learned counsel for the appellants then referred to Section 47 of the Evidence Act and contended that only a person acquainted with the handwriting of another person can identify his handwriting and a person having seen him writing or having received documents written by him, can be said to be acquainted with the handwriting of such person, but in the instant case, Lal Singh PW-3 was not so acquainted with the handwriting and signature of defendant Nos.3 and, therefore, Lal Singh PW-3 could not prove receipt Ex.P-1 to be in the handwriting and under the RSA No.1032 of 2011 (O & M) - 4 - signature of defendant No.3. The contention is completely misconceived. Lal Singh PW-3 proved the handwriting and signature of defendant No.3 on receipt Ex.P-1 by direct evidence having stated that the said receipt was written and signed by defendant No.3 in his (Lal Singh’s) presence. Lal Singh has not proved the receipt on the strength of being acquainted with handwriting and signature of defendant No.3. On the contrary, the direct evidence given by Lal Singh would be more relevant and cogent in preference to evidence of a person on the basis of being acquainted with handwriting and signature of defendant No.3. In addition to the aforesaid, there is another very significant circumstance going against the defendants/appellants. Defendants are running business as commission agents. They are maintaining their account books. However, defendants have failed to bring their account books in evidence to depict that no such amount was received by them from the plaintiff on 17.04.2004. This is a very significant circumstance giving rise to strong adverse presumption against the defendants. Consequently, it can be safely presumed and inferred that the account books if produced would have depicted that the defendants had received Rs.1,26,000/- from the plaintiff on 17.04.2004. There is concurrent finding of fact recorded by both the Courts below in favour of the plaintiff-respondent. The said finding of fact is based on proper appreciation of evidence and is supported by cogent reasons recorded by both the Courts below. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction because lower appellate Court is the final Court RSA No.1032 of 2011 (O & M) - 5 - of fact. The aforesaid finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 01.03.2011. A.kaundal