IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 RSA.No. 268 of 2010() --------------------- AS.21/2008 of PRINCIPAL SUB COURT,ERNAKULAM OS.127/2001 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANT/RESPONDENT/DEFENDANT: -------------------- POLLY JOSEPH, S/o. JOSEPH MUNDACKAL HOUSE, ANGADI KARA KOTHAMANGALAM VILLAGE, KOTHAMANGA TALUK BY ADV. SRI.M.R.SARIN PANICKER RESPONDENT/APPELLANT/PLAINTIFF: --------------- JIBI M KUNNAPPILLY S/o. MATHAI KUNNAPPILLIL HOUSE RAMANGALAM KARA MARADY VILLAGE THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.268 of 2010 --------------------------------------- Dated this 09th day of March, 2010 JUDGMENT The second appeal arises from judgment and decree of learned Sub Judge, Ernakulam in A.S.No.21 of 2008 reversing dismissal of the suit by the learned Munsiff, Moovattupuzha and granting a decree in favour of respondent for realisation of money. Respondent alleged that on 16-02-2000 appellant borrowed Rs.60,000/- from him and to secure payment of that amount executed Ext.A1, demand promissory note. Since the amount was not repaid, respondent instituted the suit. Appellant denied that there was any such transaction with the respondent or, that he had executed promissory note. According to him, his brother had some transactions with the respondent and though, those transactions were settled, respondent had been harassing them. Accordingly, demand promissory note was fraudulently created. Respondent gave evidence as PW1 and proved Ext.A1. PW2 is a witness in Ext.A1. He supported the case of respondent. Appellant gave contra evidence as DW1 and proved Ext.B1, certificate of treatment issued from Mar Baselious Medical Mission Hospital, Kothamangalam evidencing his inpatient treatment from 01-02-2000 till 17-02-2000 and Ext.X1, case sheet for such treatment. Learned Munsiff was of the view that going by Ext.X1 and R.S.A.No.268 of 2010 2 evidence of PW1 and DW1, appellant was remaining inpatient in the hospital at Kothamangalam on 16-02-2000 when he is said to have executed Ext.A1, demand promissory note at the shop of respondent at Moovattupuzha and hence the version of respondent regarding the alleged execution of Ext.A1 cannot be accepted. Learned Munsiff also disbelieved evidence of respondent for the reason that though he stated that Ext.A1 was prepared by one Joy, a customer of his, he could not speak about the whereabouts of the said person. Holding so the suit was dismissed. On appeal at the instance of respondent, first appellate court referred to the evidence on record, came to the conclusion that in the facts and circumstances and evidence of PWs.1 and 2 possibility of appellant executing Ext.A1 at the shop of respondent (PW1) at Moovattupuzha cannot be ruled out. First appellate court has also referred to the evidence of appellant as DW1. A further fact which struck the notice of first appellate court is similarity in the signature in Ext.A1 with the admitted signature of appellant in his vakkalath and deposition as DW1 while, his signature in the written statement varied from those signatures. On a consideration of the above circumstances, first appellate court came to the conclusion that there is no reason to disbelieve case of respondent regarding execution of Ext.A1. Accordingly a decree was granted in favour of respondent. That is under challenge in this appeal raising by way of substantial question of law whether first appellate court was R.S.A.No.268 of 2010 3 justified in comparing signature in Ext.A1 with the admitted signature of appellant and reaching the conclusion on a mere casual or routine perusal without analyzing the characteristics of the disputed/admitted signature. It is contended by learned counsel for appellant placing reliance on the decision of this court in Jyothis Kuries & Loans Vs. George Jose (2003(3) KLT 1157) and of the Supreme Court in Thiruvengada Pillai Vs. Navaneethammal (2008(2) KLT 267) that finding of the first appellate court is vitiated in that, it compared the admitted and disputed signature and come to a conclusion regarding execution of Ext.A1. 2. Section 73 of the Evidence Act (for short, 'the Act') empowers the court to compare the disputed handwriting/signature with the admitted one. The decision relied on by learned counsel do not say that the court lacked the power to make such comparison. What the decisions relied on by learned counsel said is only that decision of the court shall not be based solely or merely on such comparison. The Supreme Court has also stated on the facts of the case that trial court which compared the signature had not stated about the characteristics of the disputed/admitted signatures. Reading the decisions it leaves me in no doubt that the power of court to compare handwriting/signature with the disputed one is not in anyway affected. In this case it is not as if conclusion that appellant executed Ext.A1 is based solely or merely on the comparison of the R.S.A.No.268 of 2010 4 admitted/disputed signatures made by the first appellate court. That is only one of the circumstance the first appellate court has taken into consideration in concluding in favour of the due execution of Ext.A1 which, I do not find suffer from any legal infirmity. 3. According to the respondent and as spoken by him and the evidence of his witness as PW2, on 16-02-2000 at about 3 p.m appellant went to the shop of respondent at Moovattupuzha where the alleged transaction and execution of Ext.A1 took place. Evidence of appellant as DW1, B1 and X1 and as admitted by the respondent also when he was examined as PW1 show that from 01-02-2000 to 17-02- 2000 appellant remained inpatient in a private hospital at Kothamangalam. The trial court found, in the circumstance that it was not possible for the appellant to have gone out of the hospital on 16- 02-2000 without consent of the hospital authorities, reach Moovattupuzha and execute Ext.A1 but, there is no evidence of such consent. Instead, first appellate court stated that even as per Ext.X1, appellant had undergone treatment only for fracture of left ulna and left index finger. Evidence revealed that on other occasions also he had undergone treatment in the same hospital and hence there is possibility that he was acquainted with the staff of the hospital. It also came in evidence that during the relevant time appellant was employed as driver in the KSRTC. First appellate court observed in the above circumstance that it was not as if it was impossible for appellant R.S.A.No.268 of 2010 5 to board a fast moving KSRTC bus, reach Moovattupuzha and return to Kothamangalam the same day as said places are not so far away so that evidence of PWs.1 and 2 about the transaction and execution of Ext.A1 at Moovattupuzha should discarded (as impossible or near impossible). First appellate court stated that the evidence revealed that on 17-02-2000 appellant was discharged from the private hospital after admission and treatment from 01-02-2000, necessarily he had to honour the bill on 17-02-2000 and that indicated that he was in dire need of money on that day. That is also taken as circumstance in favour of the case of respondent about the borrowal on 16-02-2000. 4. So far as alleged execution of Ext.A1 is concerned, first appellate court observed that it was only when Ext.A1 was shown to the appellant in his cross examination that he chose to deny the signature in it. There was no denial of signature in the written statement or even in the chief affidavit. I have gone through the copy of testimony of DW1 given to me by learned counsel for perusal and find that first appellate court is correct in stating so. True, appellant has a case that Ext.A1 was 'fraudulently created' and he stated so in his chief affidavit as well but that does not necessarily mean that he was disputing the signature in Ext.A1. First appellate court has referred to the evidence of PWs.1 and 2 and DW1 and come to the conclusion that there was no reason to disbelieve the evidence of PWs.1 and 2. I have gone through the evidence of PWs.1 and 2 and R.S.A.No.268 of 2010 6 find that so far as the evidence of PW2 is concerned, there was not even serious cross examination. There were only some bald suggestion to him. 5. Case of appellant is that in connection with the transaction his brother had with the respondent, he has been falsely implicated. There is no reason why, respondent should falsely implicate appellant in connection with the transaction he allegedly had with the brother of appellant. It is on a consideration of all these circumstances that first appellate court came to be conclusion that Ext.A1 was executed by the appellant. Necessarily presumption regarding passing of consideration followed. Having gone through the judgment under challenge, contentions raised by the parties and the depositions of PWs.1 and 2 and DW1 and gone through the judgment under challenge I am not satisfied that there is any substantial question of law arising in the case for a decision. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/