THE HONOURABLE Dr. JUSTICE G. RADHA RANI
SECOND APPEAL No.1240 of 2009
ORDER:
This Second Appeal is filed by the appellant-respondent-plaintiff against the judgment and decree dated 17.07.2009 passed in A.S. No.56 of 2007 by the I-Additional District Judge, Nalgonda, reversing the judgment and decree dated 25.07.2007 passed in O.S. No.20 of 2005 by the Junior Civil Judge, Nakrekal.
2. The parties are hereinafter referred as arrayed before the trial court.
3. The case of the plaintiff was that the defendant borrowed a sum of Rs.50,000/- from him on 06.05.2002 to meet her family and personal needs and promised to repay the same along with interest at 24% per annum as and when demanded by the plaintiff. On the same day, the defendant executed a promissory note in favour of the plaintiff before the witnesses. After some time, the plaintiff demanded the defendant to discharge the debt, but the defendant dodged the matter on one pretext or the other. Finally, on 17.02.2005, the plaintiff got issued a registered legal notice to the defendant. The defendant gave reply on 2 Dr.GRR,J SA No.1240 of 2009 04.03.2005 denying borrowing of the amount and executing the promissory note. As such, the plaintiff filed the suit for recovery of an amount of Rs.84,833/- (Principal amount of Rs.50,000/- + Rs.34,833/- interest at 24% per annum from 06.05.2002 to 15.03.2005).
4. The defendant filed written statement contending that there was no acquaintance between the plaintiff and the defendant and the defendant was not in need to borrow any amount from the plaintiff and the plaintiff was not a sound person to advance such huge amount to the defendant and denied executing promissory note in favour of the plaintiff before the witnesses. She contended that the so called witnesses were strangers to her. She, however, admitted that the plaintiff issued a legal notice on 17.02.2005 and that she got issued a reply notice denying execution of promissory note. She further submitted that a panchayath was held before the village elders after issuing reply notice and the elders advised the plaintiff not to initiate any case basing on illegal and fabricated documents. She further submitted that the plaintiff was an auto driver and was not having any landed property. He was having no other income except the auto and was not having capacity to lent money to others. The defendant was doing a job in Electricity Board from 18.04.2002 and prior to her appointment, her 3 Dr.GRR,J SA No.1240 of 2009 husband, by name, Sailu was working as Lineman in the Electricity Board. After his death, on compassionate grounds, she was appointed as Attender in the same Board. After the death of her husband, she received all monetary death benefits of her husband from the Board and there was no necessity to borrow any amount from the plaintiff and the plaintiff had no capacity to advance the amount of Rs.50,000/-. He was not having stable income.
4.1. She further submitted that prior to 1990 the plaintiff was vagabond and was not having any job. In the year 1990, the defendant filed a case against the plaintiff in P.S. Nakrekal, which was registered as Crime No.198 of 1990 for the offence under Section 354 IPC and the same was numbered as CC No.195 of 1990 on the file of the Judicial Magistrate of First Class, Nakrekal. The village elders settled the matter outside the court and got compromised the case on 27.09.1991. Even after compromise, the plaintiff developed an ill-motive against the defendant and was waiting for revenge and filed the present suit on fabricated documents with forged signatures of the defendant. The plaintiff was not in good terms with the defendant. The promissory note was a fabricated document and the same was not binding upon her and prayed to dismiss the suit.
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5. The trial court framed the issues as follows:
1. Whether the plaintiff is entitled for suit claimed amount or not ?
2. To what relief ?
6. The plaintiff examined himself as PW.1 and got examined the attestors to the promissory note as PWs.2 and 3 and got marked Exs.A1 to A5. Ex.A1 was the promissory note dated 06.05.2002, Ex.A2 was the office copy of the legal notice dated 17.02.2005, Ex.A3 was the postal receipt and Ex.A4 was the acknowledgment card and Ex.A5 was the reply notice dated 04.03.2005 issued by the counsel for the defendant.
7. The defendant was examined as DW.1 and got examined the handwriting expert as DW.2. The opinion of the expert was marked as Ex.C1, the covering letter as Ex.C2 and the reasons for the opinion was marked as Ex.C3.
8. On considering the evidence on record, the trial court i.e. court of the Junior Civil Judge at Nakrekal, decreed the suit with costs for Rs.84,833/- with subsequent interest at 6% per annum on the principal amount of Rs.50,000/-. The trial court believed the evidence of PWs.1 to 3 and considered that the opinion of the expert assumes no 5 Dr.GRR,J SA No.1240 of 2009 importance in view of the direct evidence available on record. Aggrieved by the said judgment and decree dated 25.07.2007 in O.S. No.20 of 2005, the defendant preferred an appeal. The appeal was heard by the I-Additional District Judge, Nalgonda vide A.S. No.56 of 2007 and vide judgment dated 17.07.2009, the I-Additional District Judge, Nalgonda allowed the appeal setting aside the judgment and decree of the trial court placing reliance on the evidence and opinion of the expert that the signatures on the promissory note were not that of the defendant. The first appellate court, on re-appreciating the evidence of PWs.1 to 3, found that their evidence was untrustworthy.
9. Aggrieved by the said judgment and decree dated 17.07.2009 in A.S. No.56 of 2007 reversing the judgment in O.S. No.20 of 2005, the plaintiff preferred this second appeal. This court formulated the substantial questions of law as follows:
1. Whether the opinion of the handwriting expert, who has been examined as DW.2, prevails over the occular testimonyy of PWs.1 to 3?
2. Whether the appreciation of evidence on record by the lower appellate court appellate court is perverse?6
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10. Substantial Question No.2:
The first appellate court is the final court on appreciation of facts. The second appeal would be allowed only if the said appreciation of evidence made by the first appellate court is perverse. The evidence of PWs.1 to 3 and DWs.1 and 2 is considered by the first appellate court and observed that the defendant was residing at Hyderabad whereas the plaintiff and PWs.2 and 3 were residents of Chandupatla village of Nakrekal Mandal, Nalgonda District. The defendant's husband was working as Lineman in the Electricity Board and after his death, the defendant was appointed as Attender in the Electricity Board in the year 2002. The first appellate court also considering the fact that the defendant filed a complaint against the plaintiff in the year 1990 for the offence under Section 354 IPC for outraging her modesty and PWs.1 to 3 also admitted about the said case and the compromise, and the defendant had given reply legal notice marked under Ex.A5 on receipt of the legal notice got issued by the plaintiff and denied about obtaining any loan from the plaintiff and contended that the plaintiff was not in a financial capacity to give any loan to her and considering the admissions of the plaintiff that he was an auto driver and PWs.2 and 3 were also auto driver and tractor driver, respectively, observed that PWs.2 and 3 7 Dr.GRR,J SA No.1240 of 2009 were interested in PW.1 i.e. plaintiff. The first appellate court also accepted the contention of the defendant that because of the criminal case filed by the defendant against the plaintiff for the offence under Section 354 IPC, the plaintiff developed ill-will against her and filed the suit with forged promissory note. The first appellate court also considered the evidence of the handwriting expert wherein he gave a categorical finding that the signatures on the promissory note were not that of the defendant, accepted the defence of the defendant. This Court does not find any perversity in the observations of the first appellate court in its appreciation of evidence. Hence, this substantial question of law is answered accordingly.
11. Substantial Question No.1:
The trial court observed that the opinion of the handwriting expert is not a conclusive proof of evidence and the said opinion must always be received with care and caution as the same was empirical in character and error was always possible and when there was direct and trustworthy evidence of the persons who had actually seen signing the document by the executor, it was not necessary to refer or rely on the expert's opinion, discarded the evidence of the expert. 8
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12. The first appellate court considering that the opinion of expert was relevant under Sections 3, 5 and 45 of the Evidence Act and the court could not throw away the opinion of the expert and in many cases the opinion of the handwriting expert is necessary for the court to form an opinion on disputed questions of fact and it was not necessary to travel beyond past five years in search of precedents, placed reliance on the opinion of the expert examined as DW.2, and observed that the trial court mis-directed itself and came to a wrong conclusion.
13. The science of handwriting is not an exact science and the Hon'ble Apex Court in several cases held that great care and caution should be exercised by the courts in determining the genuineness of the handwriting. The opinion of the expert will be relevant though not conclusive. The evidence of a handwriting expert need not invariably be corroborated. If the court is convinced from the report of an expert that the questioned writing was that of the defendant, there is no difficulty in relying upon the expert's opinion without any corroboration. The court can also form an opinion by comparing the two signatures having negligible difference. The courts would normally look at expert's opinion with a great sense of acceptability but it is equally true that the 9 Dr.GRR,J SA No.1240 of 2009 courts are not absolutely guided by the reports of the experts especially if such reports were perfunctory and unsustainable.
14. The report of the expert, marked under Ex.C1, was supported by reasons for arriving at such opinion, marked as Ex.C3. DW.2 was the Assistant Government Examiner of Questioned Documents in the office of GEQD, who had examined a large number of documents and had undergone sufficient training in identification of handwriting and detection of forgery. He stated in his evidence that on examining all the documents sent to him i.e. promissory note and specimen signatures of DW.1 and the Acquittance role of APCPDCL, vakalatnama and the written statement containing the signatures of DW.1, he came to the conclusion that the person, who wrote the blue enclosed signatures stamped and marked as S1 to S10 and A1 to A7 did not write the red enclosed signatures similarly marked and stamped as Q1 and Q2. He stated that another person, by name, Sri S.C.Gupta, Government Examiner of Questioned Documents also examined the documents and he was also of the same opinion and they sent their opinions to the court in the covering letter marked as Ex.C2. He stated that his opinion was based on cumulative consideration of various differences between 10 Dr.GRR,J SA No.1240 of 2009 questioned and standard signatures and gave the reasons as follows in Ex.C3:
"The general writing habits viz., skill, slant, speed, spacing, relative size and proportion of characters, movement and line quality are found dissimilar between the questioned and the standard signatures on comparison.
The standard signatures are written freely whereas the questioned signatures are written slowly and drawn in execution. Standard signatures are consistent and show natural variation among themselves. Characteristic differences are observed in the individual writing habits in the formation of various characters of the questioned signatures when compared with that of the standard signatures. The significant differences are as follows: formation of letter 'B' along with shape of its lobes; downward commencement of letter 'P' retrace at its staff; shape of its lobe and direction of its finish; location of commencement of 'a', shape of its oval and direction of its finish; location of commencement of 'd', shape of its oval and location of its finish; commencement of 'm', shape of its shoulders, twist at its middle part and direction of its finish; habit of giving dot after the signature available in Standard signatures are differently observed in the questioned signatures.
The aforesaid differences in the writing habits of the questioned signatures marked Q1 and Q2 and those of the standard signatures marked S1 to S10 and A1 to A7 are fundamental in nature and beyond the range of natural variation and disguise and when considered collectively they leads me to the opinion of different authorship."
15. Thus, the opinion of the handwriting expert is accompanied by reasons for forming such opinion. The cross-examination made on this witness would not discredit his evidence in any manner. 11
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16. The defendant in her reply legal notice at the earliest denied obtaining the amount of Rs.50,000/- as loan from the plaintiff and contended that the plaintiff was not having capacity to pay such amount. She further contended that the documents if any with the plaintiff were invalid documents. She also contended in her written statement about the forgery aspect and filed a petition before the trial court to send the document to the handwriting expert to determine whether the signatures on the promissory note belonged to her or not. She also stated that the plaintiff was not in good terms with her due to her filing a criminal case against him earlier under Section 354 IPC which was compromised, but keeping the same in mind, he developed ill-will against her and waiting for revenge filed the suit with forged and fabricated document.
17. The evidence of the expert who was an independent witness corroborates with the evidence of DW.1 that the signature on the promissory note do not belong to the defendant. There is no reason to suspect the evidence of DW.2 as it was supported by valid reasons. The first appellate court on appreciating the evidence of PWs.1 to 3 came to an opinion that their evidence was untrustworthy. As such, this Court considers that the opinion of the hand writing expert, who is an 12 Dr.GRR,J SA No.1240 of 2009 independent, impartial and scientific witness supported by valid reasons stands on a higher footing than the evidence of occular witnesses examined as PWs.1 to 3, who were found untrustworthy by the first appellate Court. As such, this Court does not find any valid grounds to set aside the judgment and decree of the first appellate court in A.S. No.56 of 2007.
16. In the result, the Second Appeal is dismissed confirming the judgment and decree dated 17.07.2009 passed in A.S. No.56 of 2007 by the I-Additional Chief Judge, Nalgonda. No order as to costs.
As a sequel, miscellaneous petitions, pending if any shall stand closed.
_____________________ Dr. G. RADHA RANI, J November 01, 2023 KTL