THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.506 of 2009 Dt:27-07-2010 Between : Shaik Hussain Saheb ..Appellant And N. Narasimha Reddy .. Respondents Counsel for the petitioner: Sri S. V. Muni Reddy Counsel for respondents : Sri S.V. Bhatt < GIST >HEAD NOTE: ? CASES REFERRED : THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.506 of 2009 JUDGMENT: The respondent filed O.S.No.705 of 2001 against the appellant in the Court of III Additional Junior Civil Judge, Kadapa, for recovery of Rs.93,732/-, on the basis of two promissory notes. The appellant pleaded that he did not borrow any amount from the respondent and except that he figured as attestor of the promissory notes, he did not execute the same. The trial Court dismissed the suit, through judgment dated 09-10-2006. The respondent filed A.S.No.4 of 2007 in the Court of Principal District Judge, Kadapa. The appeal was allowed, through judgment dated 24-04-2009, and as a result, the suit was decreed. The appellant challenges the same. Sri S.V. Muni Reddy, learned counsel for the appellant submits that it is the son of the appellant, that had borrowed the amount from the respondent, and that his client has only figured as an attesetor to the promissory notes. He contends that, on application filed by his client, the trial Court sent the documents for examination by an expert, and an opinion was rendered to the effect that the thumb impression on the documents does not tally with the undisputed thumb impressions of the appellant. Learned counsel submits that when such is the clear evidence, there are no bases for the lower Appellate Court in reversing the judgment and decree of the trial Court. Sri S.V. Bhatt, learned counsel for the respondent, on the other hand, submits that the trial Court recorded certain perverse findings and they were corrected by the lower Appellate Court. He contends that when the appellant admitted that he has put his thumb impressions on the documents, there was absolutely no basis for the application filed under Section 45 of the Indian Evidence Act (for short ‘the Act’), much less, to the report filed by the expert on the basis of the order passed in the I.A. Learned counsel further submits that the witnesses, who scribed the documents, categorically stated that the documents were executed by the appellant himself. Taking the pleadings of the parties into account, the trial Court framed the following issues, for its consideration: 1) Whether the suit promissory notes dated 3-7-2000 and 13-7-2000 are not supported by consideration ? 2) Whether the plaintiff is entitled to the suit claim as prayed for ? Additional Issue: Whether the thumb impression affixed on the revenue stamp is of the defendant ? The respondent deposed as PW-1, and PW-2 is the scribe of the documents. Promissory notes are marked as Exs.A-1 and A-2. Ex.A-3 is the legal notice, Ex.A-4 is the postal receipt, and Ex.A-5 is the reply. The appellant deposed as DW-1, and one Mr.Surya Prakash, handwriting and finger print expert, was examined as DW-2. His report and opinion are marked as Exs.C-1 and C-2. The trial Court found that the respondent failed to prove that the documents are supported by consideration, and further held that the thumb impressions on Exs.A-1 and A-2 are not those of the appellant, and accordingly dismissed the suit. The lower Appellate Court reversed the judgment and decree passed by the trial Court. The main basis for the trial Court to dismiss the suit was the report and opinion, marked as Exs.C-1 and C-2, submitted by DW-2. It is not uncommon that applications, under Section 45 of the Act, are filed whenever the signatures on the documents, which constitute the basis for the suit, or which have relevance otherwise, are disputed, by the persons, who are said to have signed them. The suit was based upon two promissory notes. The necessity to send them for opinion of the expert would have arisen, if only the appellant disputed the thumb impressions thereon. His plea was that he did put his thumb impressions upon the promissory notes, but in the capacity of an attestor/witness. He further pleaded that his son executed the promissory notes for repayment of the loan. Two important things emerge out of this: 1) Once the appellant admitted that he put his thumb impressions upon the promissory notes, a) the necessity to send them for expert’s opinion does not arise, and b) the only controversy would be, as to whether the appellant figured as attestor or as executant of the document. 2) The examination of the son of the appellant as a witness would have put an end to the entire controversy. The appellant took a step on the first aspect, which is not necessary, and avoided or failed to take other step, which was very much essential. The trial Court took the opinion and report of the expert, Exs.C-1 and C-2, on their face value. It failed to take into account the fact that DW-2, the expert, was not satisfied as to the clarity and accuracy of the admitted thumb impressions of the appellant, and thrice they had to be replaced. Even as regards the last sample, he commented that it has several lacunae. Despite this background, the report was that, out of the two thumb impressions, on each, as the documents, Exs.A-1 and A-2, were found to be genuine, and the other, not, because it was not clear. A finding that one thumb impression is genuine, is sufficient to prove the execution of the document. Added to that, there is admission by the appellant himself. The lower Appellate Court pointed out these glaring errors and reversed the judgment and decree passed by the trial Court. This Court is of the view that the analysis by the lower Appellate Court was, mostly on facts, and hardly there exists any substantial question of law for consideration by this Court. The Second Appeal is accordingly dismissed. There shall be no order as to costs. ________________________ L. NARASIMHA REDDY, J. Dt.27-07-2010. Note: L.R copy to be marked. (B/O) KO