IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 AS.No. 725 of 2000() ------------------------------ OS.692/1995 of ADDL.SUB COURT,PARAVUR .................... APPELLANT(S): DEFENDANT ------------------------------------------ KASSIM, S/O. MOHAMMED, AGED 56 YEARS, NEEROZHUKKUNGAL HOUSE, U.C.COLLEGE P.O., ALUVA KARA, ALUVA VILLAGE. BY ADV. SRI.K.VINOD CHANDRAN RESPONDENT(S): PLAINTIFF ------------------------------------------- UNNIKRISHNAN, S/O. THANKAPPAN, AGED 36 YEARS, MITTITHANICKAL HOUSE, KADAMATTOM KARA, AIKKARANAD NORTH, VILLAGE. BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NO.725 OF 2000 ............................................. Dated this the 23rd day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree of the Subordinate Judge's Court, North Paravur in O.S.No.692/1995. The suit is one for realisation of the amount due under a promissory note. It is the case of the plaintiff that the defendant had borrowed an amount of Rs.32,000/= and had executed Ext.A1 promissory note and had not paid back the amount. When the plaintiff had gone for demanding the same, the defendant had issued Ext.A2 letter. Thereafter also the defendant did not pay the amount and hence the suit. 2. On the other hand the defendant would contend that there was no monetary transaction between the plaintiff and the defendant and he had not executed Ext.A1 promissory note. It is also his case that the plaintiff had approached him for obtaining a Visa and he had taken him to Bombay and had introduced him to one Abdul Wahab to whom the plaintiff paid some amount and as he could not go abroad, he started harassing the defendant and came : 2 : A.S.NO.725 OF 2000 with people to his house, but when the mediators knew that nothing had transpired between the plaintiff and the defendant, they went from there. Therefore it is submitted that the suit is liable to be dismissed. 3. In the lower court PWs 1 and 2 and DWs 1 and 2 were examined and Exts.A1 to A3 were marked. On analysis of the materials, the trial court granted a decree in favour of the plaintiff. It is against that the defendant has come up in appeal. 4. Heard. The suit is on the basis of a promissory note. There cannot be any dispute that the burden is on the plaintiff to prove the execution of the promissory note. Therefore it has to be considered whether materials available are sufficient to prove the transaction. Being a civil case, preponderance of probability also has to be looked into. Ext.A1 is the alleged promissory note and Ext.A2 is the letter alleged to be written by the defendant to the plaintiff with respect to the amount. It is the case of the plaintiff that he had advanced a loan and it was at that time Ext.A1 has been executed. : 3 : A.S.NO.725 OF 2000 5. PW1 had deposed before the court that the defendant had approached him and in the presence of his brother-in-law, PW2, he had handed over the amount and that the defendant had written a promissory note, signed it, received the consideration and handed over the promissory note to him. Though the plaintiff has been cross examined at length, nothing is brought out in cross examination to discredit his evidence. 6. PW2 is the brother-in-law of PW1. He had also deposed that he was available at the time of the transaction. Further, he had also accompanied PW1 to the house of the defendant for the purpose of demanding money. So, PWs 1 and 2 speak in clear terms regarding the transaction. 7. DW1 is the defendant. DW1 would say in the chief examination that the plaintiff had approached him for a Visa in the year 1994, but in the written statement it is sated as 1991. When this anomaly was brought to him in the re- examination, he pretends ignorance. So he wants to shift the year even in that regard. It is his case that he had taken the plaintiff to Bombay and he had introduced one Abdul : 4 : A.S.NO.725 OF 2000 Wahab to whom the plaintiff had paid some amount and that Wahab had failed to arrange Visa. Therefore the plaintiff is after the defendant for the amount. The case of the plaintiff is that he had obtained a Visa, gone abroad, worked for 13-14 months and had come back and thereafter the amount was advanced and he has demanded back that amount from the defendant. So there is nothing to show that the transaction is between the plaintiff and the Abdul Wahab. 8. DW2 - a neighbour would depose before the court that one day he heard a hue and cry and therefore went to the house of the defendant and no document was executed and the mediators were satisfied that there was no transaction. So the case of the defendant is very evasive, inconsistent and not totally acceptable. 9. The learned counsel for the appellant would further argue two points before me i.e., one regarding the material alteration and the other regarding not sending the document for comparison. So far as material alteration is concerned, it is not an alteration that is seen in the document. It is an insertion that is found out and the plaintiff has deposed that : 5 : A.S.NO.725 OF 2000 when the defendant brought the promissory note and handed over to him, he found that the date is missing and therefore directed him to include the date and thus the insertion taken place. Secondly, here is a case where the defendant had totally denied the transaction and execution of Ext.A1. If execution of Ext.A1 is proved, then insertion also goes along with what the plaintiff has said. Therefore a plea under Section 87 of the N.I.Act is not available to the defendant. 10. The next question is regarding non sending of the documents for comparison by an expert. It is not the rule of law that whenever the defendant disputes his signature, it has to be sent to the expert for comparison. It is true that ordinarily the court shall not venture to compare the signatures. 11. The Hon'ble Supreme Court has held in very many decisions that it is a hazardous task which the court should not resort to for the reason that it is not an expert on comparison of signature. But the Supreme Court has held that Section 73 of Indian Evidence Act enables the court for comparison of the handwriting or signature but only caution : 6 : A.S.NO.725 OF 2000 that the said comparison shall not be the sole criteria to arrive at a decision. The Supreme Court held that it can be used as a corroborative piece of evidence for the purpose of deciding the case. 12. I had anxiously considered and perused the document in dispute and the admitted signature of the defendant that is in the vakalath and there is lot of resemblance and a view with naked eyes would reveal that there is absolute similarity between the disputed and admitted signatures. Therefore with the acceptable evidence of PWs 1 and 2 coupled with the comparison of signature in Exts.A1 and A2 with the admitted signature in the vakalath, I am of the view that the trial court was absolutely justified in arriving at a decision that the defendant had executed the promissory note in favour of the plaintiff. When the execution is admitted, Section 118 of the N.I.Act comes into rescue of the plaintiff regarding passing of consideration which is a rebutable presumption. The said presumption is not rebutted by any evidence adduced by the defendant. Therefore amount is due to the plaintiff under : 7 : A.S.NO.725 OF 2000 Ext.A1 and the court below has granted a decree for the said amount. Therefore, the judgment and decree of the trial court do not call for any interference and the appeal fails and the same is dismissed but without any order as to costs. M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.725 OF 2000 M.N. KRISHNAN, J. ........................................... A.S.NO.725 OF 2000 ............................................. 23rd day of July, 2010. J U D G M E N T