IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 AS.No. 101 of 2001(C) ------------------------------- OS.425/1993 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S): DEFENDANT ------------------------ C.P.JOHNSON, S/O. C.J.PAUL, RESIDING AT KOPPAM AMSOM, PALAKKAD TALUK. BY ADV. SRI.V.CHITAMBARESH SRI.KRISHNA PRASAD. S RESPONDENT(S): PLAINTIFF ----------------------------- K.RAMACHANDRAN NADAR, S/O. KUNCHUNNI KURUP, RESIDING AT KANNATH HOUSE, MUDAPPALLOOR P.O, ALATHUR TALUK, PALAKKAD DISTRICT. ADV. SRI.SAJAN VARGHEESE K. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.3725/2006 IN AS. NO.101/2001 DISMISSED 10/06/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.101 OF 2001 & Cross Objection No.49 of 2007 ............................................. Dated this the 10th day of June, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree passed by the Subordinate Judge, Palakkad in O.S.No.425/1993. The suit is one for realisation of the amount. It is the case of the plaintiff that the defendant's brother, Dr. Mohan Paul, had borrowed amounts from him and had issued Ext.A1 cheque on settlement of various accounts for a sum of Rs.50,000/= towards discharge of the liability. It was dishonoured and subsequently a letter- Ext.A10 dated 15.1.1990 praying for time for payment was made and again on 3.7.1990 with a post dated (18.7.1990) cheque with a covering letter Ext.A4 was addressed to the plaintiff and thereafter again a covering letter with cheque was issued in 1991 which would reveal that amount was due to the plaintiff from the defendant's brother and there has been proper acknowledgment of the liability. 2. The defendant on the other hand would contend : 2 : A.S.NO.101 OF 2001 & Cross Objection No.49 of 2007 that there was no such monetary transaction between the brother of the defendant and the plaintiff and exploiting the friendship, plaintiff has obtained some blank cheques and initiated action in this way. He has also specifically denied about the execution of the letters which had accompanied the cheques. So the contention of the defendant is three fold. One is that there had been no monetary transaction between the plaintiff and the defendant's brother. For exploiting the friendship, the plaintiff had obtained some blank signed cheques and filed the suit and three of the letters alleged to be acknowledgment are created for the purpose of the suit. 3. Unfortunately, the real alleged borrower is not before us now and he is no more. The suit is one instituted against his legal representative for the amount due under the transaction. It has to be stated that the defendant has categorically denied about the execution of the cheque as well as writing of any letter by Dr. Mohan Paul acknowledging the debt. There was a heavy duty cast upon : 3 : A.S.NO.101 OF 2001 & Cross Objection No.49 of 2007 the plaintiff to establish the same. 4. The learned Subordinate Judge mainly perused the signatures in the cheque and also in the letters and arrived at a conclusion that those letters are written by Dr. Mohan Paul as alleged by the plaintiff. It is true that under Section 73 of the Indian Evidence Act, the courts are given the power to compare the handwritings or signature. But the Apex Court has cautioned that it is the most hazardous method for the reason that the Judge is not a scientific expert on handwriting or signature. But the Supreme Court held that when there is independent evidence or other evidence available, comparison with naked eye can be made use of for the purpose of corroboration so as to arrive at a decision. But a decision arrived on the basis of the comparison alone is not proper. Therefore I am not satisfied to accept that evidence to uphold the decree of the trial court. 5. As far as this case is concerned, there are admitted writings and even signatures in the blank cheques are : 4 : A.S.NO.101 OF 2001 & Cross Objection No.49 of 2007 admitted. They are contemporaneous documents for the reason that the signatures in the cheques are admitted. The disputed signature in the letters can be sent for comparison by an expert and scientific data can be made use of with the other available materials to arrive at a decision. If other admitted writings of Dr. Mohan Paul are available and as there are letters alleged to be written in favour of the plaintiff, they can also send for comparison so that there will be leak proof scientific evidence for arriving at a decision in this case. 6. Therefore, I set aside the judgment and decree of the trial court and remit the case back to the trial court for a fresh consideration with a direction to the plaintiff to take steps for comparison of the handwritings and signatures and also direct the defendant to co-operate fully to make available the signature and handwritings, if any, available for the purpose of comparison. Thereafter, let the parties be permitted to adduce both documentary as well as oral evidence in support of their respective contentions and : 5 : A.S.NO.101 OF 2001 & Cross Objection No.49 of 2007 the matter be disposed of in accordance with law. Since it is a very old matter, the learned Subordinate Judge shall bestow his maximum attention to dispose of the matter within a period of six months from the date of first appearance of the parties. Parties are directed to appear before the court below on 21.07.2010. The cross objection also is disposed of with a direction to the court below to reconsider that question again along with the main case. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.101 OF 2001 & Cross Objection No.49 of 2007 M.N. KRISHNAN, J. ........................................... A.S.NO.101 OF 2001 & Cross Objection No.49 of 2007 ............................................. 10th day of June, 2010. J U D G M E N T