IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :17.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.NO.50 OF 2002 and C.M.P.No.14458 of 2005 K.Kanniamma ... Appellant/Defendant Vs. S.V.Govindaraju ... Respondent/Plaintiff Appeal suit filed under Section 96 of the Civil Procedure Code, 1908 against the judgment and decree dated 28.8.2001 in O.S.No.326 of 1996 on the file of the Subordinate Court, Hosur. For appellant : Mr.R.Margabandhu For respondent : Mr.V.Nicholas J U D G M E N T The appellant/defendant has filed this appeal as against the judgment and decree dated 28.8.2001 made in O.S.No.326 of 1996 on the file of Sub Court, Hosur. 2.The short facts of the respondent/plaintiff's case are as follows: The appellant/defendant has borrowed a sum of Rs.4,00,000/- from the respondent/plaintiff on 04.09.1992 and executed a pronote promising to repay the same with interest at 18% per annum to the respondent/plaintiff are to his order and that the appellant/defendant has received the consideration in cash in the presence of attestors and scribe of the promissory note. The appellant/plaintiff in order to discharge the debts incurred in connection with the purchase of property in her name and to run a hotel business has borrowed the money. 3.The appellant/defendant has not paid the principal or the interest amount. The respondent/plaintiff has caused a legal notice on 03.6.1995 calling upon the appellant/ defendant to pay the due amount under pronote. The appellant/defendant has issued a reply stating that the suit pronote is a forged one and that she has not https://hcservices.ecourts.gov.in/hcservices/ executed any pronote and further that she received a sum of Rs.20,000/- and Rs.1,20,000/- in the year 1992 from the respondent/plaintiff. In another notice dated 20.05.1995 the appellant/defendant has mentioned about the business and other transactions between the respondent/plaintiff and the appellant/defendant's husband. The respondent/plaintiff has convened a panchayat comprising of Muthukrishnan, Muniyandi Vilas Ramachandran, Paramasivam, Sadiq, Thennai Ganeshan and others and before the Panchayators, the appellant/defendant has agreed to pay the amount but has not paid the amount. Therefore, the suit is filed for recovery of a principal sum of Rs.4,00,000/- and an interest sum of Rs.1,08,000/- (for the period from 04.9.1992 to 03.9.1995 at 9% per annum for Rs.4,00,000/-) totalling in all a sum of Rs.5,08,000/- together with interest at 9% per annum from the date of filing of the suit and with costs. 4.The appellant/defendant in the written statement has taken the pleas that she has no debts to discharge and not in requirement of any amount to run the hotel business and further that she has not executed the pronote and has not received the sum of Rs.4,00,000/- from the respondent/ plaintiff and that suit pronote is a forged document not a true and genuine one and moreover, the signature of the appellant/defendant in the suit pronote is not that of her and that she has not affixed a signature in the suit pronote and inasmuch as the same is not a valid one, she is not entitled to claim the suit amount etc. 5.It is also the stand of the appellant/defendant that the respondent/ plaintiff has no means to pay such a huge amount of Rs.4,00,000/- to her and the fact is that the respondent/plaintiff and her husband Kannan have been running a non-vegetarian hotel as partners at Hosur and due to some misunderstanding the partnership has been desolved in 1987 and the hotel business cannot be continued and then, her husband Kannan has been running the non-vegetarian hotel in the name of 'Sri Venkateswara Tea Centre' at the near Bangalore Road near the old bus stand and that the respondent/plaintiff has been running a separate non-vegetarian hotel under the name of 'Poornima' in Hosur Town and that her husband Kannan died on 04.11.1992 and after his demise the appellant and her sons have continued to run the hotel of 'Venkateswara Tea Centre' at the same place and that she has purchased a house in Survey No.367/1 at Mookandavalli Village, Sipcot, Hosur on 29.1.1986 and after purchase, she has obtained a loan of Rs.60,000/- from the Co- operative Housing Society and utilising her savings she has constructed a terrace house in the building. 6.Added further, it is the contention of the appellant / defendant that the respondent/plaintiff's wife has purchased the adjacent site and she has constructed a house therein by obtaining a https://hcservices.ecourts.gov.in/hcservices/ loan and after constructing the said house the appellant at the suggestion of the respondent/plaintiff has rented it to his brother in loan and that the appellant and her husband Kannan have been repaying the loan to the Co-operative Society in instalments and after the appellant's husband died on 04.11.1992, his L.I.C. Policy which has been given to the housing society as security has been realised and an amount of Rs.53,000/- therefrom has been credited to the Co-operative Housing Society and that the appellant's loan has been cleared and subsequently, the appellant has been requesting the respondent/plaintiff to get the house vacated from his brother-in-law Anbazhagan and that the respondent/plaintiff and his brother-in-law have been postponing to do the same and in January 1994 the respondent/plaintiff wanted the appellant/defendant to sell the said house to him and a sale price has been fixed at Rs.2,60,000/- in the presence of Kumaresan, Anvar Bai, Muniappan and others and the respondent/plaintiff has paid a total sum of Rs.2,00,000/- to the appellant/defendant towards the sale price of the said house and on 13.06.1994 he has prepared a document and without reading out the contents has obtained an appellant's signatures and registered the same and later the appellant has come to know that the said document has been executed for Rs.30,000/- that to in respect of the site alone and not the building and later the appellant has been demanding the respondent/plaintiff to pay a sum of Rs.60,000/- to her through mediators Muthukali, Auditor, Kumaresan and others and inspite of the demand the respondent/plaintiff has not paid the said sum of Rs.60,000/- to the appellant/defendant and cheated her of the said sum and to wreck vengence on the appellant/defendant, the respondent/plaintiff appears to have fabricated the suit pronote showing as if the appellant has borrowed a sum of Rs.4,00,000/- from him. 7.Apart from the above, when the respondent/plaintiff and the appellant/defendant's husband Kannan have been running the hotel business and got separated, accounts have been taken and it has been found that the respondent /plaintiff has to owe a sum of Rs.1,40,000/- to the appellant's husband Kannan and further that the respondent/ plaintiff has not paid the sum of Rs.1,40,000/- to the appellant/defendant's husband Kannan and only in October 1991 when the appellant's husband has fallen sick and has been admitted in Meerabai Nursing Home, Hosur, the respondent/plaintiff has paid a sum of Rs.20,000/- and he has to pay a balance of Rs.1,20,000/- and in July 1992 he has paid the said sum of Rs.1,20,000/- and other than the transaction in regard to the sale of the said house, there has been no other transactions between the respondent/ plaintiff and the appellant/defendant and after the appellant's husband's death on 04.11.1992, taking advantage of the fact that the appellant/defendant is a young widow without any help etc., the respondent/plaintiff has been trying to get her under his control for which the appellant has not been willing and therefore, the appellant has been demanding the https://hcservices.ecourts.gov.in/hcservices/ respondent/plaintiff to pay the balance of sale consideration of Rs.60,000/- for the sale of her house and therefore, the respondent/plaintiff has forged and fabricated the suit pronote and in fact, there has been no occasion for the appellant/defendant borrow a sum of Rs.4,00,000/- in September 1992 and moreover, the respondent/plaintiff has no means to pay Rs.4,00,000/-. 8.A plea has also been taken on the side of the appellant/defendant that the suit pronote is not supported by consideration and that the respondent/plaintiff cannot enforce the same. Besides this, there has been no Panchayat and the appellant/defendant never appear before the Panchayators at any time and she has never agreed to pay the amount in instalments and in any event, the Panchayators have not mediated nor held any Panchayat. 9.Before the trial Court, on the side of respondent/ plaintiff witnesses P.W.1 to P.W.3 have been examined and Exs.A.1 to A.8 have been marked. On the side of appellant/ defendant witnesses D.W.1 and D.W.2 have been examined and Exs.B.1 to B.8 have been marked. Also Exs.C.1 to C.3 have been marked. 10.The trial Court has framed in all four issues for determination of the case. The trial Court on an appreciation of oral and documentary evidence available on record has come to the resultant conclusion that the respondent/plaintiff is entitled to the decree has prayed for with costs and accordingly, passed a decree. 11.The points that arise for determination in this appeal are: 1.Whether the appellant/defendant has executed the Ex.A.1 pronote dated 04.09.1992 in favour of the respondent/plaintiff on receipt of consideration of Rs.4,00,000/- together with interest at 18% per annum? 2.Whether the suit pronote Ex.A.1 dated 04.09.1992 is a concocted one? 3.Whether the respondent/plaintiff is entitled to claim the suit amount as prayed for? 12.Finding on Point Nos.1 to 3: According to the learned counsel for the appellant/defendant, the trial Court has not taken note of the discrepancies in the deposition of P.W.1 to P.W.3 in regard to the alleged execution of Ex.A.1 suit pronote by the respondent/plaintiff and further the trial Court has not considered the admission made by P.W.1/plaintiff that he has no means to lend a sum of Rs.4,00,000/- in a proper perspective and added further, the trial Court has not appreciated the appellant/defendant producing the accounts in respect of the partnership hotel business in the name of Venkateswara done by the appellant/defendant's husband and the respondent/plaintiff and https://hcservices.ecourts.gov.in/hcservices/ the writing are in the name of respondent/plaintiff and as a matter of fact, the P.W.1/plaintiff in his cross examination has admitted that Ex.B.1 dated 28.07.1989 is in his own handwriting which probablises the case of the appellant and further the P.W.1 has admitted that the house has been sold by the appellant/defendant to the respondent/ plaintiff for a sum of Rs.2,60,000/- which also probablises the case of the appellant/defendant that when the appellant/defendant has requested the respondent/plaintiff to pay the balance of Rs.60,000/- out of Rs.2,60,000/- and therefore, the respondent/plaintiff has got angry with a malafide intention has fabricated the Ex.A.1 suit pronote and has filed the recovery of the suit amount and these aspects have not been looked into by the trial Court in a proper manner and if really the respondent/plaintiff has lent a sum of Rs.4,00,000/- to the husband of the appellant then the respondent/plaintiff ought to have obtained the signature of the husband of the appellant in the pronote and not from the appellant/defendant alone or the respondent/plaintiff should have obtained the signature of the appellant/defendant and also her husband Kannan and not from the appellant/defendant alone and also that the P.W.1/plaintiff has made an admission that it is only the appellant/defendant's husband has demanded the amount and therefore, the case of the respondent/plaintiff as if he has obtained the signature of the appellant/defendant alone in regard to the purported loan transaction is an unnatural one and in short, there is no clear cut evidence in regard to the date and time of execution of suit promissory note and in the absence of any evidence that the appellant/ defendant has required any amount from the respondent/ plaintiff as on 04.9.1992 then the trial Court ought not to have believed the execution of pronote and indeed Exs.B.5 and B.6 Bank Passbooks of the appellant have not been appreciated by the trial Court properly and moreover, the trial Court has committed an error in rejecting the evidence of D.W.2 the handwriting Expert and the cross examination of D.W.2 an Expert indicates that the respondent/plaintiff has challenged the deposition expert only in regard to subject signature and the trial Court has not not taken judicial note that D.W.2 is a well known handwriting expert who has tendered evidence in various Courts in Tamil Nadu for the past three decades and after rejecting the evidence of D.W.2 expert, the trial court has taken the role of an expert to come to a wrong conclusion that the signature in Ex.A.1 pronote is that of the appellant/defendant by means of comparison of the same with the signatures of the defendant in Exs.A.6 and A.8 and the trial Court has not considered the legal bar under the I.T. Act for having it transaction in cash if the same is Rs.20,000/- and therefore, prays for allowing the appeal in the interest of justice. 13.Contending contra, the learned counsel for the respondent submits that the trial Court has come to the conclusion that the Ex.A.1 suit pronote has been supported by a due consideration and the https://hcservices.ecourts.gov.in/hcservices/ same has been executed by the appellant/defendant and in fact the trial Court has compared the signature found in Ex.A.1 with that of the admitted signatures of the appellant/defendant in Exs.A.6 and A.8 and in law the trial Court is empowered to compare the signatures with its own eyes and that the trial Court has considered all the materials in the case and therefore, the appeal preferred by the appellant has to be dismissed by this Court to promote substantial cause of justice. 14.It is useful to refer to the evidence of P.W.1/ plaintiff who has deposed that the appellant/defendant's husband has worked along with him at Bangalore earlier and that he has lent a sum of Rs.4,00,000/- to the appellant/ defendant on 04.9.1992 for which the appellant has executed Ex.A.1 pronote and that the said pronote has been written in his house by one Jayaprakash and that the appellant/ defendant's husband has brought the witnesses Ramachandran and Paramasivam and that the witnesses have signed the appellant affixing a signature in the pronote and further that the appellant has also seen the witnesses signing in the pronote and the appellant/defendant has asked for the amount from him with a view to purchase a place near the appellant's house and at that time the appellant and her husband have been present and after the receipt of money two months later the appellant's husband has expired and in 1993 the appellant has purchased that place and that the witnesses in Ex.A.1 pronote are in Hosur and that the Jayaprakash who wrote the pronote has expired and that the appellant/defendant has obtained a loan for laying the foundation to her house and the same has been discharged as per Ex.A.6 and since the appellant's husband is a friend to him, he has claimed only an interest of 9% per annum even though the agreed rate of interest is at 18% per annum. 15.It is the evidence of P.W.1 (during his cross examination) that he has written Ex.B.1 and the house value is mentioned as Rs.2.75 lakhs and a sum of Rs.15,000/- has been deducted and the balance of Rs.2.60 lakhs has been returned and he has not asked the appellant's husband to jointly execute the pronote along with the appellant and further he has not obtained the witness signature of the appellant's deceased husband Kannan and no Panchayat has been convened requiring him to pay a sum of Rs.60,000/- to the appellant/defendant and that the write of the pronote Jayajprakash on enquiry is said to have died in the year 1996 and the appellant's husband is the family head and the appellant has come along with her husband Kannan at the time of asking for the money of Rs.4,00,000/- in connection with the shop expense and towards purchase of the house and she has asked the same one month prior execution of the pronote and that he has received a sum of Rs.10,00,000/- in 1992 by selling the land and it is in correct to state that the signature in Ex.A.1 is not that of the appellant etc. https://hcservices.ecourts.gov.in/hcservices/ 16.P.W.2 has deposed that in Ex.A.1 the signature of the appellant is found and that he has also signed in the pronote and witness Ramachandran has also signed and further the pronote writer has also signed and he along with Ramachandran (another witness) has seen the appellant affixing a signature in the pronote and the appellant has seen him when he has signed in the pronote and that the respondent/plaintiff has given the amount to the appellant's husband and in Muthukrishnan's building a Panchayat has taken place in which Muthukrishnan, Nandiswaran, Sadiq and himself have participated and in the Panchayat the appellant has agreed to pay the amount. 17.P.W.3 in his evidence has stated that during the month of September 1992 the appellant's husband Kannan has come and informed him that towards purchase of land he has to receive money from the respondent/plaintiff and the appellant's husband has received the amount from the respondent/plaintiff and the appellant's husband at first has gone to the house of respondent/plaintiff and later he, Paramasivam and Jayaprakash has gone to the house of respondent/plaintiff and in the respondent/plaintiff's house, the respondent/ plaintiff, appellant/defendant and her husband Kannan have been present and the pronote has been written by Jayaprakash as directed by the appellant's husband Kannan in which the appellant has signed and he has seen the same and also that Paramasivam has signed and later he has signed and moreover, the pronote writer has also signed and the signature of K.Kanniamma in the pronote is written by her and that the respondent/plaintiff has given the money to the appellant's husband at that time the appellant has been present near her husband Kannan and the rate of interest has been mentioned by the said Kannan and that the appellant and her husband after receiving the money have gone away and in Panchayat the amount has not been settled. 18.D.W.1/appellant in her evidence has stated that she has not received any amount from the respondent/plaintiff and it is not correct to state that she has received consideration in the presence of witnesses Ramakrishnan, Paramasivam and executed a pronote and her husband Kannan has not been present at the time of execution of pronote and therefore, the pronote has been a fabricated one and moreover, the respondent/plaintiff has no means to lend a sum of Rs.4,00,000/- in one lumpsum. 19.The evidence of D.W.2 is to the effect that in the year 1996 at Mukkonda Palli Village she has purchased a house site and at that time the respondent/plaintiff also has purchased a house site near her house site and she has obtained a loan of Rs.60,000/- from the Co-operative Housing Society and finished construction of the house in the year 1986 and at that time the respondent/plaintiff has also constructed a house and occupied the same and in her house she https://hcservices.ecourts.gov.in/hcservices/ inducted a tenant Anbazhagan, the respondent/ plaintiff's relative and she has discharged a loan of Rs.60,000/- with the building society from and out of the policy amount she has received and she has received from Chettiar a sum of Rs.50,000/- as loan for constructing a house and she has also to pay a sum of Rs.50,000/- to the Canara Bank and therefore, to discharge the said loans in the year 1989 she indulged in sale tax for selling her house for consideration of Rs.2,65,000/- and in connection with the same the respondent/plaintiff has given Ex.A.2 chit and she has not sold her house to the respondent/ plaintiff and she has sold the said house in the year 1994 to the respondent/plaintiff, in the name of respondent/ plaintiff's wife's name as per Ex.A.7 and in Ex.A.7 it is mentioned as house site which is not correct and she has been asking the respondent/plaintiff to pay the amount of Rs.60,000/- due to her and when her husband has been under treatment in Meerabai Hospital at that time the respondent/plaintiff has given her a sum of Rs.20,000/- and in July 1992 he has paid her a sum of Rs.1,20,000/-. 20.D.W.1 in her cross examination has stated that she knows English to put a signature only and that she cannot read English and the signature in Ex.A.6 and A.8 are not in same fashion and after the death of her husband the respondent/plaintiff has compelled her to come under his control and during the year 1993 the respondent/plaintiff has to give her a sum of Rs.60,000/-. 21.D.W.2 (Handwriting and Finger Print Expert) in her evidence has deposed that she is a Handwriting and Finger Print Expert with an experience of 28 years and that she has received training from her father who has also done the same and she has taken a photo of the signature found in Ex.A.1 suit pronote and she has also taken photos of the admitted signatures in Exs.A.6 and A.7 and also that she has received the sample signatures sent from the Court and the samples sent from the Court is Ex.C.1 and the disputed signature in Ex.A.1 when compared with that of the admitted signatures has not been signed by the appellant and therefore, the signature in the disputed document is a forged one and the report is Ex.C.3 and the signatures in S.1 to S.16 as Kanniamma has not signed the signature in Ex.A.1. 22.The trial Court in para 10 of its judgment has opined that 'D.W.2 (Expert) has not stated that basically she has expert knowledge and therefore, she cannot be construed as a handwriting expert and further that the Ex.A.1 pronote has been proved as per the evidence of P.W.2 and P.W.3 and moreover, the admitted signatures of the appellant/defendant when compared with the signature of Ex.A.1 pronote with that of the signature of the appellant in other documents since the aforesaid signatures have been affixed with an interval of few years the signature of the appellant/defendant in Ex.A.1, A.6 and A.8 has been signed by the same person viz., the appellant/defendant and decided accordingly.' At this stage, the https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the appellant contends that D.W.2 (Handwriting Expert) has 28 years of experience in the handwriting and finger print field and that she has taken training from her father who has also practised the same avocation and therefore, the observation of the trial Court that D.W.2 has not stated that she is in possession of expert knowledge is incorrect one in the eye of law. Added further, it is the submission of the learned counsel for the appellant/ defendant that no suggestion has been put to D.W.2 Expert that she is not a competent handwriting expert and her veracity of evidence has not been suspected and in fact, D.W.2 the Expert in a report in Ex.C.3 has come to the categorical conclusion that the disputed signature D has been compared with that of the admitted and specimen signatures S.1 to S.16 mentioned in the report and on comparison the disputed signature shows signs of forgery and this evidence of the D.W.2 ought to have been taken note of by the trial Court and moreover, the trial Court should have dismissed the suit after holding that the suit pronote is a forged one, but the same has not been resorted to by the trial Court and therefore, the view of the trial Court in this regard has to be corrected by this Court. 23.In support of his contention that D.W.2 Expert's evidence ought to have been taken into account by the trial Court while deciding the case, the learned counsel for the appellant cites the decision of Hon'ble Supreme Court in State of Maharashtra V. Sukhdeo Singh and another AIR 1992 Supreme Court 2100 wherein it is inter alia held as follows: "A handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on