IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 RSA.No. 927 of 2009() --------------------- AS.191/2005 of ADDL. DIST. COURT (ADHOC) III, PALAKKAD OS.104/2002 of MUNSIFF COURT, CHITTUR .................... APPELLANT/APPELLANT/DEFENDANT: ------------------------------------------------- KOCHUGOVINDAN, S/O. SIVARAMAKRISHNA MENON, KARUVAPPARA, KOZHINJAMPARA VILLAGE, CHITTUR. BY ADV. SRI.SAJAN VARGHEESE K. SRI LIJU M P RESPONDENTS/RESPONDENTS/PLAINTIFFS: ------------------------------------------------- 1. JAYALAKSHMI, W/O. RADHAKRISHNAN, PADINJAREGRAMAM, TATTAMANGALAM VILLAGE, TATTAMANGALAM P.O., CHITTUR, PALAKKAD DISTRICT. 2. BHUVANESWARI, D/O. RADHAKRISHNAN, -DO- -DO- 3. JAYAKRISHNAN, S/O. RADHAKRISHNAN, -DO- -DO- 4. PRIYA, D/O. RADHAKRISHNAN, -DO- -DO- ADV. SRI.P.R.VENKETESH SRI.P.R.RAJA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.927 of 2009 --------------------------------------- Dated this 21st day of October 2009 JUDGMENT Respondents appears through counsel. 2. Against concurrent finding that appellant borrowed Rs.75,000/- from the deceased original plaintiff on 30-09-1999 and executed Ext.A1, promissory note undertaking to repay the said amount on demand with interest at the rate of Rs.12/- per annum, appellant failed to pay the amount due and the decree for payment of the amount with interest and cost, appellant has come up in second appeal urging the following as substantial questions of law: (i) Are the findings made by the courts below that Ext.A1, promissory note is properly executed and signed by the appellant, without the assistance of expert opinion, legally correct and sustainable in law? (ii) Is the mode adopted by the courts below to conclude that Ext.A1, promissory note was signed and executed by the appellant, legally correct? (iii) Are the analysis of the evidence and the consequential conclusions reached by the courts below, especially regarding execution of promissory note legally correct and would it amount to legal perversity? (iv) Are the courts below legally correct in holding that there is legal presumption regarding consideration on Ext.A1 promissory note, in favour of the plaintiff and it had not been rebutted by the appellant/defendant? (v) Are the judgments and decrees passed by the R.S.A.No.927 of 2009 2 courts below legally correct and sustainable in law? 3. According to the original plaintiff, appellant borrowed Rs.75,000/- from him and executed Ext.A1, promissory note undertaking to pay the amount with interest on demand. Original plaintiff sent Ext.A2, notice dated 12-02-2002. demanding payment. Service of notice on the appellant is proved by Ext.A2 series. Appellant sent Ext.A3, reply which according to the original plaintiff contained false contentions. Original plaintiff filed the suit for realisation of the amount with interest and cost. Appellant denied that he had borrowed any amount or executed demand promissory note. He contended that original plaintiff was enemical to him as the original plaintiff thought that it was with his blessings that his brother-in-law had a love affair with the daughter of the original plaintiff and on account of that enemity, a false case has been filed against him to wreak vengeance. During the pendency of suit, original plaintiff died and his legal representatives, respondents herein were impleaded as additional plaintiff Nos.2 to 5. Respondent No.3, son of original plaintiff gave evidence as PW1 and claimed to have witnessed the transaction and execution of Ext.A1, the demand promissory note. PW2, witness in Ext.A1 also gave similar evidence. Appellant gave contra evidence as DW1 and denied execution of Ext.A1. Learned Munsiff found that Ext.A1 is executed by the appellant and that appellant was not able to rebut the presumption under section 118(a) of the Negotiable R.S.A.No.927 of 2009 3 Instruments Act. Accordingly decree for realisation of amount as prayed for was granted. First appellate court concurred with that finding and confirmed the judgment and decree. Learned counsel for appellant contends that courts below were not correct in acting upon the evidence of PWs.1 and 2 to hold that Ext.A1 is executed by the appellant. It is the further contention of learned counsel that trial court went wrong in basing its decision on comparison of disputed signature. Learned counsel would contend that in the nature of contention advanced by appellant Ext.A1 ought to have been sent to an expert for opinion. Reliance is placed on the decision in Hariharan Vs. Rajendran and Another (2000 (2) KLJ 326), Jyothis Kuries & Loans Vs. George Jose (2003(3) KLT 1157), Aravindakshan Nair Vs. Essen Bankers (2007 (3) KLT 718) and Thiruvengadam Pillai Vs. Navaneethammal & Another (2008 (4) SCC 530). Learned counsel for respondent would contend that the finding of fact entered by courts below on appreciation of the evidence and on comparison of the signature does not involve any substantial question of law requiring admission of the second appeal. Learned counsel for appellant has taken me through the evidence of PWs.1 and 2 and DW1. 4. Ext.A1 is the disputed document. Respondent No.1, son of plaintiff has given evidence that at the time of the alleged transaction and execution of Ext.A1, he was also present. He saw appellant R.S.A.No.927 of 2009 4 borrowing Rs.75,000/- from his father, original plaintiff and executing Ext.A1. PW2 is the witness in Ext.A1. He claimed that he is a LIC agent residing about half a kilometer away from the house of original plaintiff and in connection with his business as LIC agent had come to the house of original plaintiff. There, he saw the appellant borrowing Rs.75,000/- from the original plaintiff and executing Ext.A1. He also signed Ext.A1 as a witness. Appellant as DW1 denied the allegations. His case is that he had no transaction with original plaintiff, nor executed Ext.A1. Instead there was dispute between himself and the original plaintiff and on account of that a false case has been filed forging his signature. According to him, his brother-in-law was in love with the daughter of original plaintiff which was not appreciated by the latter who thought that the love affair was with the tacit support of appellant. That according to the appellant provoked the original plaintiff to file the suit. PW1, respondent No.1 in his evidence admitted there was affair between his sister and the brother-in-law of appellant which the original plaintiff was not very happy about but he denied that on that account the signature of appellant was forged in Ext.A1. Appellant when examined as DW1 claimed that it was without even perusing Ext.A1 that he filed written statement denying execution of Ext.A1. He has not seen Ext.A1 but he hastened that he has not signed Ext.A1. He admitted that he has signed Ext.A2 (b), acknowledgement card. His signature in Ext.A2(b) and the summons served on him are R.S.A.No.927 of 2009 5 different. He would also say that there will be some difference each time he puts his signature. Courts below considered the above evidence and found that the version of appellant is not reliable. Courts below also found that there is no reason to disbelieve the evidence of PWs.1 and 2. Along with that trial court also perused the disputed signature of appellant in Ext.A1 with his admitted signature and found that there is no reason to disbelieve the evidence of PWs.1 and 2 regarding execution of Ext.A1. 5. I shall refer to the decision relied on by learned counsel for appellant. In Hariharan Vs. Rajendran and Another (2000 (2) KLJ 326) in para 3 it is observed that as regards the disputed signature in that case, opinion of the handwriting expert was necessary. That of course is a decision on the facts of that case and cannot be understood as laying down any abstract rule of law or evidence as to in which all circumstances opinion of the expert has to be obtained. In Jyothis Kuries & Loans Vs. George Jose (2003(3) KLT 1157) in para 17 it was held, on the facts of the case that the learned Munsiff was not correct in forming an opinion about authenticity of the disputed signature on the mere perusal since learned Munsiff had no expertise of knowledge or experience in comparing disputed writing with the admitted writing. In Aravindakshan Nair Vs. Essen Bankers (2007 (3) KLT 718) this court observed even though there is power for the court to compare the admitted signature/writing with the disputed R.S.A.No.927 of 2009 6 signature/writing and come to its own conclusion it will be more prudent to require the opinion of the expert. The Supreme Court in Thiruvengadam Pillai Vs. Navaneethammal & Another (2008 (4) SCC 530) at page 539 (para 16) held, “While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with eh admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb R.S.A.No.927 of 2009 7 impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal.” The decision of the Supreme court above quoted would show that if the court finds that the disputed finger impression and the admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison even in the absence of expert opinion. Question whether opinion of an expert should be obtained should depend on the facts and circumstances of each case and the evidence let in by the parties. It may not be proper for a court to base its finding merely on the examination of the disputed signature/handwriting under section 73 of the Evidence Act. In this case, apart from the comparison of the disputed signature in Ext.A1 made by learned Munsiff which is permissible under section 73 of the Evidence Act, there is the evidence of PWs.1 and 2 regarding due execution of Ext.A1. It is seen from the judgment of trial court that due regard has been given to the evidence of appellant as DW1 also while concluding that his version regarding the institution of the case cannot be accepted. It is difficult to accept the contention of appellant that on account of the differences of opinion which he (as DW1) said (the details of which is not stated in Ext.A3, reply notice), original plaintiff thought of forging his signature and filing a suit for realisation of money. On going through the judgment under challenge and hearing learned counsel on both sides I R.S.A.No.927 of 2009 8 do not find that any substantial question of law is involved for a decision. The decision of the courts below rest on a proper appreciation of evidence let in by both sides and also on comparison of the disputed signature and so far as it is not shown that the finding is perverse, this court in second appeal is not required to interfere as it does not involve any substantial question of law. Resultantly the second appeal fails. It is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/