sa133.03
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 133 of 2003
Ashok Mohanlal Poddar,
aged about 55 years,
occupation - Business,
resident of Gopalkrishna Mandir Ward,
Pandharkawada,
Tq. Kelapur,
Distt. Yavatml. ..... Appellant
Defendant
Versus
Pawan Ratnanlal Chamelia,
aged about 35 years,
occupation - business,
resident of Stayanarayan Mandir Ward,
Pandharkawada,
Tq. Kelapur,
Distt. Yavatmal. ..... Respondent.
Plaintiff
*****
Mr. Sachin S. Deshpande, Adv., for the appellant.
Mr. H. D. Dangre, Adv., for the respondent.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 09th June, 2017 ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 00:28:59 ::: sa133.03 2 ORAL JUDGMENT:
01. This appeal filed under Section 100 of the Code of Civil Procedure, 1976 is by the original defendant who is aggrieved by the judgment of the appellate Court dated 20th January, 2003 whereby the suit for recovery of money filed by the respondent has been decreed.
02. Brief facts necessary for adjudicating the Second Appeal are that it is the case of the respondent that he was acquainted with the appellant as they were residing in the same locality. As the appellant intended to open a new shop, he was in need of money. On the request made by the appellant, the respondent had given him an amount of Rs.30,000/-. A document dated 21st July, 1998 came to be duly executed and it was agreed that said amount would be repaid by 30th January, 1999. As the aforesaid amount was not paid, the respondent filed suit for recovery of Rs.35,400-00.
03. In the Written Statement, the appellant took the stand that though respondent was doing business, behind his shop, there was a gambling den. The respondent used to accommodate any person who lost money in gambling. As the appellant had lost Rs.3,000/- in gambling, the respondent had taken his signature on a blank stamp ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 00:28:59 ::: sa133.03 3 paper which was being used to the prejudice of the appellant. It was, therefore, denied that any amount was due and payable to the respondent.
04. After the parties led evidence, the trial Court came to the conclusion that the contents of the document dated 21st July, 1998 at Exh.25 had not been proved. It, therefore, dismissed the suit for recovery. The appellate Court found that the appellant had admitted his signature on the said document and that the same was prepared after its contents were read over to the appellant. It, therefore, allowed the appeal and decreed the suit. Being aggrieved, the present appeal has been filed.
05. The following substantial questions of law were framed while admitting the appeal:-
"1. Whether, was it necessary to examine the scribe in this matter particularly when document Ex.25 was in question and the execution of which is denied by the defendant?
2. Whether the defendant discharged the burden as it was the contention of the respondent that no such document was executed and signature was taken ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 00:28:59 ::: sa133.03 4 on a blank paper?"
06. Shri Sachin Deshpande, learned counsel for the appellant, submitted that appellate Court was not legally correct in holding the document at Exh.25 to be duly proved. The scribe of the said document, one Shri Kulkarni, had not been examined and merely on the basis of deposition of the attesting witness, the claim could not have been accepted. He submitted that there was a difference between proving the contents of a document and the truthfulness of such contents. According to him, the document at Exh.25 did not require any statutory attestation and, therefore, the deposition of the attesting witness would not substantiate the case of the respondent. In that regard, he placed reliance upon the judgment of the Division Bench in Sir Mohammed Yusuf & another Vs. D & another [AIR 1968 Bombay 112] as well as judgment of learned Single Judge in Om Prakash Berlia & another Vs. Unit Trust of India & others [AIR 1983 Bombay 1]. It was, therefore, submitted that the appellate Court was not justified in decreeing the suit.
07. Shri H. D. Dangre, learned counsel for the respondent, supported the impugned judgment. He, submitted that it was ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 00:28:59 ::: sa133.03 5 necessary to take into consideration the entire evidence on record for coming to the conclusion that the contents of Exh.25 had been duly proved. He referred to the provisions of Sections 61, 67, 68 and 91 of the Indian Evidence Act [for short "the said Act"] to urge that high degree of proof had been provided for supporting the case of the respondent. Even though attestation of the document was not mandatory, the deposition of the attesting witness could be led as evidence. He, therefore, submitted that non-examination of the scribe was not very relevant as the document had otherwise been duly proved by the respondent. He then submitted that on preponderance of probabilities, it was clear that the appellant had borrowed a sum of Rs.30,000/- from the respondent and was, therefore, liable to repay the same. He placed reliance upon the decision in Girja Prasad Sharma Vs. Sardarlabh Singh [AIR 1977 Patna 241] to urge that the respondent as well the attesting witness were acquainted with the signature of the appellant.
08. I have heard the learned counsel for the parties at length and I have gone through the records of the case.
09. It is the specific defence raised by the appellant that his signature was obtained on a blank stamp paper which is at Exh.25 and ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 00:28:59 ::: sa133.03 6 that amount of Rs.30,000/- was not advanced to him. As per the document at Exh.25, this amount of Rs.30,000-00 was to be repaid by 30th January, 1999. It is, therefore, necessary to consider whether contents of this document have been duly proved by the respondent.
10. As per provisions of Section 61 of the said Act, the contents of a document can be proved either by primary or by secondary evidence. As per provisions of Section 63 (5) of the said Act, secondary evidence would mean and include oral account of the contents of a document given by a person who has seen the document. In Om Prakash Berlia & another [supra], on consideration of various provisions of the said Act, the distinction between proof of contents of a document and proof of the truthfulness of such contents has been noticed. It has been observed that it is one thing to produce a document by way of primary evidence and it is another thing to establish what such document states. In the present case, the original of the said document was produced before the Court. The contents of that document were sought to be proved by examining the attesting witness - PW 2. The attesting witness in his deposition stated that initially the appellant had written a note acknowledging the aforesaid loan amount in favour of the respondent. Thereafter, the stamp paper which was purchased by the appellant was scribed by one Chandu ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 00:28:59 ::: sa133.03 7 Kulkarni and it was written as per the directions of the respondent. The appellant put his signature there and the document was read over to the appellant. It was thereafter signed by the appellant. The attesting witness thereafter put his signature on the same. In the cross-examination of the attesting witness, there is no suggestion given that the contents of said document were neither written in the presence of the appellant or that contents of Exh.25 were false. The only suggestion given is that the amount was not given to the appellant in the presence of attesting witness and no transaction took place which suggestion was denied by the attesting witness. Thus, if the deposition of attesting witness is considered, it is clear that the contents of Exh.25 written in presence of the appellant have not been seriously challenged. It is, therefore, clear that the contents of Exh.25 have been duly proved by the respondent. Though it is true that as per provisions of Section 68 of the said Act, attestation of Exh.25 was not mandatory, that by itself cannot militate against the case of the respondent for having examined the attesting witness. If the attesting witness had witnessed the scribing of the document as well as the aspect of it being signed after its contents were read over to the appellant, there is no reason not to accept the testimony of the attesting witness.
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11. It cannot be doubted that the deposition of the scribe would be a strong piece of evidence to prove the truthfulness of the contents of the document. This aspect has been considered by the Division Bench in Sir Mohd. Yusuf & another [supra]. In that regard, reference was made to the judgment of the Honourable Supreme Court in Mobarik Ali Vs. State of Bombay [AIR 1957 SC 857]. In that decision, it was held that the proof of genuineness of a document is a proof of a fact like any other fact and evidence relating thereto may be direct or circumstantial. It could consist of direct evidence of a person who saw the document being written or the signature being affixed.
The truthfulness of contents of Exh.25 will, thus, have to be gathered from the entire material on record. The stamp paper at Exh.25 was purchased by the appellant and it was scribed in his presence, after which it was read over to him. It was thereafter that he signed the same which fact is clear from the deposition of the respondent as well as the attesting witness. Another relevant fact which cannot be ignored is the absence of any reply being given to the notice at Exh.29, issued by the respondent. It cannot be lost sight of that the appellant is a businessman and any prudent businessman would have responded to a notice for demand of Rs.30,000/- if he was not liable to make the payment.
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12. The appellate Court on the basis of preponderance of probabilities found that the plaintiff had proved his case on the basis of Exh.25. Considering the overall nature of the evidence on record, I find that the appellate Court has taken a possible view of the matter which cannot be said to be perverse. The substantial question of law at Sr. No.1 is answered by holding that in the facts of the present case, it was not necessary to specifically examine the scribe to prove the contests of Exh.25. In so far as substantial question of law at Sr. No.2 is concerned, the appellant has failed to discharge the burden that his signature was obtained on a blank paper. The finding in that regard recorded by the appellate Court is a pure finding of fact.
13. In view of aforesaid discussion, the judgment of the appellate Court stands confirmed. Second Appeal is, therefore, dismissed with no order as to costs.
Judge
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