R.S.A. No.1544 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.1544 of 2005 Date of Decision:19.11.2008 Charan Singh .....Appellant Vs. Avtar Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. O.P. Hoshiarpuri, Advocate for the appellant. Mr. Kanwaljit Singh, Senior Advocate with Mr. G.S. Ghuman, Advocate for the respondent. **** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 25.10.2004 passed by the Court of learned District Judge, Jalandhar, whereby he dismissed the suit of the plaintiff by accepting the appeal preferred against the judgment/ decree dated 4.12.2003 rendered by the Court of learned Civil Judge (Junior Division), Jalandhar whereby he decreed the suit for the recovery of Rs.1,50,000/- with interest at the rate of 6% per annum from 23.11.1999, the date of filing of the suit till realisation. The facts which led to the filing of the suit are that the plaintiff had remitted a sum of Rs.1,50,000/- from Canada to the defendant through State Bank of India along with a request to purchase a car for his use while on his visit to India. These drafts were got encashed by the defendant for this purpose. However, the defendant pocketed this amount and did not R.S.A. No.1544 of 2005 -2- purchase the car for the plaintiff, who came to India on 14.3.1999 and requested the defendant for the return of the above-mentioned amount. He failed to do so. The plaintiff is thus entitled to recover the aforesaid amount together with interest at the rate of Rs.12% per annum. In his written statement, the defendant admitted that the plaintiff had remitted to him the aforesaid amount through bank drafts, but denied if the same was remitted for the purchase of car. As alleged, this amount was remitted to bear the expenses for making arrangement of his (plaintiff) wife Balwinder Kaur for her immigration to Canada through the travel agent of Bombay. Her file bearing No.BBO-367-70156 (DM) was rejected vide letter dated 30.9.1998 by the immigration section of Canadian High Commission, Chankyapuri, New Delhi. As such, the plaintiff who was in India on 26.3.1999 received back from the defendant the amount in question and in the token of his having received this amount, he issued the receipt of even date. The passport of Balwinder Kaur was returned by the answering defendant to the plaintiff through Ravel Singh, Sarpanch vide receipt dated 31.3.1999. Thus, nothing was recoverable from the answering defendant by the plaintiff. The following issues were framed:- 1. Whether the plaintiff is entitled to recovery of principal and interest? OPP 2. Whether the suit is false? OPD 3. Whether the plaint is not verified and is liable to be dismissed? OPD 4. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit as noticed R.S.A. No.1544 of 2005 -3- earlier. Feeling aggrieved therewith, the defendant went up in appeal, which as noted supra was accepted and the suit of the plaintiff was dismissed. The plaintiff being dissatisfied therewith has preferred this appeal. I have heard the learned counsel for the parties. The following substantial questions of law arises for determination by this Court:- i. Whether the lower appellate Court has misread evidence of DW2 and DW3 and, therefore, arrived at a different conclusion? ii. Whether the statement of handwriting expert is corroborative evidence? iii. Whether, when admitted Exhibit D1 is alleged to have been executed prior in time and is not witnessed by any body and Exhibit D3 is executed later in time and there is no mention of the amount having been already paid, when the handwriting expert admits in his cross examination that the disputed signatures as well as standard signatures of the plaintiff itself are different in size and shape and that there was unnecessary pen lift at various points in disputed signatures, could his testimony be relied upon by the lower appellate Court? Mr. O.P. Hoshiarpuri, Advocate appearing on behalf of the appellant strenuously urged that the learned trial Court had rightly reached the conclusion that Ex.D.3 receipt is absolutely silent about the receipt of amount of Rs.1,50,000/- vide Ex.D.1. He further argued that no reliance R.S.A. No.1544 of 2005 -4- could be placed upon the testimony of Mr. Arvind Sood Handwriting Expert as the trial Court had rightly held that in his cross-examination he has admitted that the disputed signatures as well as standard signatures of the plaintiff itself are different in size and shape and that unnecessary pen lift at various points in questioned signatures on Ex.D1 showed that they are not of one and the same person and further observed that the evidence of Hand- writing Expert is merely of corroborative nature which cannot overweigh the direct and circumstantial evidence and that the plaintiff's signatures appearing on the plaint should have also been compared with the disputed signatures because at that time the plaintiff was not aware of any receipt specifically denied by him. The learned Appellate Court has not at all scrutinized the evidence of DW2 Satwinder Kumar and DW3 Avtar Singh. There are material contradictions in their statements and the same apparently prove that Satwinder Kumar (sic.) was not at all present at the time of preparing the alleged receipt. Avtar Singh has testified in his cross- examination that he had called Satwinder Kumar by making a telephonic call, who came to the house and accompanied him to the house of Charan Singh, whereas on the other hand DW2 Satwinder Kumar deposed that he was called by Charan Singh, plaintiff to witness the payment of Rs.1,50,000/-. As a matter of fact, there is no cogent evidence to the effect that the defendant had returned the amount of Rs.1,50,000/- to the plaintiff- appellant. In these premises, the findings returned by the First Appellate Court are liable to be reversed. To tide over these submissions, Mr. Kanwaljit Singh, Senior Advocate representing the respondent argued that the plaintiff has not adduced any evidence to the effect that the amount in dispute was remitted R.S.A. No.1544 of 2005 -5- for the purchase of a car and the entire controversy is clinched by Ex.D.3, wherein it has been specifically mentioned that there is nothing due with Avtar Singh son of Sadhu Singh and if the amount of Rs.1,50,000/- was outstanding on 31.3.1999 on which Ex.D.3 was executed, this fact would have certainly been recited in this document. To overcome these submissions, Mr. Hoshiarpuri maintained that it is a matter of common knowledge that as and when any Non Resident Indian come to India, he too often goes in for the purchase of second hand car and while leaving India he disposes of such vehicle. Indeed the disputed amount was remitted to the defendant for the purchase of a second hand car. On giving a deep and thoughtful consideration to the rival contentions, I find that the submissions made on behalf of the appellant are unsustainable for the reasons to be recorded hereinafter. There is no gainsaying the fact that a sum of Rs.1,50,000/- was remitted by the plaintiff to the defendant, who got it encashed. The real controversy centers around two documents, i.e., Ex.D.1 as well as Ex.D.3. A glance through the plaint would reveal that there is no averment to the effect that this amount was remitted for the purchase of a second hand car. However, there is an averment that the plaintiff had requested the defendant through letter, fax and telephonic message to purchase a car for the plaintiff for his use while on visit to India. The appellant has failed to prove any letter or any fax message in proof of the fact that this amount was sent by him for the aforesaid purpose. Under the stress of cross-examination, he regretted that he is not in possession of any such document. There being no specific averment with regards to the purchase of second hand car in the R.S.A. No.1544 of 2005 -6- plaint, it would be going too far to assume that this amount was remitted for such purpose. In the absence of such averment, if it is assumed that this amount was remitted for the purchase of a new car that in itself is also unacceptable for the simple and obvious reason that with such an amount, a new car could not be purchased. It is in the cross-examination of the plaintiff that he had told the defendant to purchase Esteem Car for him. It is worth pointing here that no Esteem Car can be purchased for this amount. In the plaint, it has not been specified that the defendant was asked to purchase Esteem Car. As surfaces in his cross-examination, his wife Balwinder Kaur was to go to Canada and the defendant had undertaken to make efforts for securing immigration for her and her passport was given to Avtar Singh who had received her passport through Ravel Singh, Sarpanch on 31.3.1999. This admission appearing in his cross-examination probablises that this amount was paid to the defendant for arranging immigration for the wife of the plaintiff. As admitted by the plaintiff, he had received the passport of his wife from Avtar Singh defendant through Ravel Singh Sarpanch by executing the receipt dated 31.3.1999 Ex.D.3 in favour of the defendant. As the contents of Ex.D3 proceed, nothing of the plaintiff remained due from Avtar Singh defendant on 31.3.1999. If the amount of Rs.1,50,000/- was still outstanding against the defendant on 31.3.1999, this fact would have certainly been mentioned in it. As per Ex.D.1 receipt, the plaintiff had received the amount in dispute from the defendant. Arvind Sood Handwriting and Finger Print Expert as DW1 has opined that the admitted signatures and disputed signatures on the receipt dated 26.3.1999 are of one and the same person. Satwinder Kumar DW2 has solemnly affirmed in his R.S.A. No.1544 of 2005 -7- affidavit Ex.DW2/A that in his presence, the receipt dated 26.3.1999 Ex.D1 was signed by the plaintiff in favour of the defendant. Avtar Singh defendant by stepping into the witness box as DW.3 also proved this fact by way of his affidavit Ex.DW3/A. When their evidence by way of affidavit was tested with cross-examination, no material favourable to the plaintiff could be elicited. On analysing the findings returned by the learned First Appellate Court, it transpires that the evidence of DW2 Satwinder Kumar as well DW3 Avtar Singh, defendant has been perused with due care and circumspection. Of course, the statement of Arvind Sood, Handwriting and Finger Print Expert, DW1 is corroborative piece of evidence, but this opinion is fortified by the positive evidence on the record. Doubtless that Ex.D.1 receipt has not been attested by anyone. It purports to bear the signatures of the plaintiff, who did not have the courage to examine some Handwriting Expert to prove that this document does not bear his signatures. It is in his cross-examination that “I have seen the receipt Ex.D1, but his signatures on it are not his signatures though the same tally with his signatures.” If he was confident that Ex.D.1 receipt vide which he statedly received a sum of Rs.1,50,000/- was not signed by him, he in the normal course of conduct was expected to examine some Handwriting Expert. On the other hand, Arvind Sood (sic.) in his evidence by way of affidavit Ex.DW1/A has solemnly affirmed that “ in my opinion, the questioned signatures marked as Q.1 and the standard signatures marked as S.1 to S.3 of Charan Singh are in the handwriting of one and the same person.” True that Arvind Sood (sic.)admitted in his cross-examination that there is pen lift after letter `r' in word Charan in Q.1, and `a' in word Charan after letter R.S.A. No.1544 of 2005 -8- `r' in Q.1 but he has come up with the explanation that such natural variations can occur. Of course the science of handwriting is not perfect like the science of finger prints, but the former is accurate. Of course, there is no mention with regards to the receipt Ex.D.1 in Ex.D.3 though Ex.D.1 was allegedly executed prior to Ex.D.3. Be that as it may, but the fact remains that if the disputed amount was yet to be recovered from the defendant by the plaintiff, why this fact was not mentioned in Ex.D.3. As per Ex.D3, on 31.3.99, there was nothing due with the defendant. There is nothing on the record as to why the appellant- plaintiff preferably remitted the disputed amount to the defendant instead of his wife in whose hands the same could have been more safer. In view of the preceding discussion, the substantial questions of law are determined against the appellant- plaintiff. A careful delving into the findings returned by the learned First Appellate Court would reveal that no interference is warranted therein. Consequently, this appeal is dismissed being bereft of any merit. Of course, having regard to the peculiarity of facts and circumstances of the case, the parties are directed to bear their own costs. November 19, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? No