Andhra Pradesh High Court - Amravati
Koppella Padmasri, vs Meegada Koteswara Rao, on 8 December, 2023
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
APPEAL SUIT No.59 of 2012
JUDGMENT:
This Appeal under Section 96 read with Order XLI Rule 1
of Code of Civil Procedure (C.P.C.) is filed by the defendant.
Judgment impugned is dated 22.10.2011 of learned XI
Additional District and Sessions Judge, Gudivada, Krishna
District in O.S.No.34 of 2010 (Old O.S.No.3 of 2005).
2. Sri A.S.K.S.Bhargav, the learned counsel appearing for
the appellant, submitted efficient arguments and cited legal
authorities.
3. Respondent was the plaintiff before the trial Court.
Despite notice being served, none entered appearance for
respondent.
4. The dispute before the trial Court was one on a demand
promissory note evidencing debt of Rs.6,00,000/-. The
instrument was dated 01.03.2002. It was stated to have been
executed by the defendant in favour of the plaintiff. Agreed rate
of interest was 24% per annum. The instrument was scribed by
a person and its execution was witnessed by two individuals
who attested the instrument. It is based on such instrument
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the creditor/plaintiff sued the debtor/defendant seeking for
recovery of Rs.10,29,600/-. Defendant filed a written statement
denying execution of promissory note and borrowal of debt. It
was specifically pleaded that the suit proposed promissory note
was a rank forgery. It is alleged that brother of plaintiff took
certain lands on lease from the defendant and in that regard he
obtained her title deeds etc., and he failed to pay the
rents/maktha and therefore, disputes arose between the
brother of plaintiff and the defendant. Utilising such
opportunity plaintiff and his brother colluded and fabricated the
suit promissory note. With those averments defendant sought
dismissal of the suit.
5. Learned trial Court settled the following issues for trial:
1) Whether the suit pronote dt. 1.3.2002 is true,
correct and executed by defendant?
2) Whether the suit pronote was brought into existence
due to disputes between defendant and his tenant
M.Premakumar?
3) To what relief?
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6. In support of their respective cases, plaintiff testified as
PW.1, scribe of the promissory note testified as PW.2 and one of
the attestors to the promissory note testified as PW.3. All the
three witnesses in one voice stated that the defendant borrowed
money and executed the suit promissory note/Ex.A.1. In
support of her case, defendant testified as DW.1 and stated that
she did not borrow money and did not execute promissory note
and Ex.A.1 is a forged and fabricated document. At her behest
the promissory note/Ex.A.1 and the undisputed writings of the
defendant were forwarded to an expert in handwriting. The
expert gave his opinion by Ex.X.1. The said expert deposed as
DW.2. He gave evidence in the trial Court that the disputed
signature on Ex.A.1 was not from the hand of the individual
whose undisputed writings were examined by him. Defendant
also got marked Exs.B.1 to B.10.
7. On considering the entire evidence on record and on
considering the contentions raised on both sides, the learned
trial Court agreed with the case of the plaintiff and rejected all
the contentions raised by the defendant. During the trial,
defendant raised a contention about financial incapacity of
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plaintiff to lend such amount. The trial Court recorded a
finding that the plaintiff owns about Ac.6.00 cents of
agricultural land and was also engaged in money lending
business and therefore, it found the plaintiff financially capable
of lending the money to the defendant. Defendant questioned
the credibility of PW.2 stating that he belonged to the caste to
which plaintiff belonged to and it questioned the credibility of
PW.3 stating that he is friend of the plaintiff. After analysis of
facts, learned trial Court held that mere acquaintance between
plaintiff and these two witnesses cannot prompt it to style them
as interested witnesses or witnesses inimical to defendant.
With such finding it rejected that contention. The other
contention raised by the defendant was about plaintiff in
collusion with his brother bringing into existence this spurious
promissory note. Learned trial Court on assessment of evidence
recorded that from Ex.B-Series documents and the admissions
made by DW.1 it found that by the time Ex.A.1-promissory note
was made there were no disputes between the defendant and
brother of plaintiff and it also found by the time the suit was
presented also the possibility of disputes between defendant
and brother of plaintiff were not existing. With such
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observations it nagatived that contention. The prime contention
raised before the learned trial Court was about the expert
opinion. Defendant contended that the opinion evidence given
by DW.2 disproved the case of plaintiff as it indicated that
Ex.A.1-promissory note does not bear the signature of the
defendant. Learned Additional District Judge who tried this
suit in his judgment from Paragraph Nos.19 to 28 extensively
dealt with the evidence and legal propositions and recorded an
observation that the opinion of the expert was not inspiring
confidence. On so recording, it acted upon the evidence of
PWs.1 to 3 and held that Ex.A.1-promissory note was proved
and the debt was proved and its non-payment was proved. With
reference to 24% interest per annum that was claimed by the
plaintiff the learned trial Court held that defendant was proved
to be an agriculturist and therefore, in terms of provisions of Act
4 of 1938 it scaled down the interest and granted only 12%
interest per annum. Accordingly, it passed the judgment in
favour of the plaintiff in the following terms:
"In the result, the suit is decreed in part for
Rs.8,14,800/- with subsequent interest on Rs.6,00,000/-
at 12% p.a. from the date of the suit till the date of the
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decree and at 6% p.a. from the date of the decree till the
date of realization with proportionate costs. The rest of
the suit claim is dismissed without costs."
8. It is that judgment which is assailed by the defendant in
this appeal. All those contentions that were taken up before the
trial Court are mentioned in the grounds of appeal. However,
wisely the learned counsel for appellant argued the matter
essentially on the aspect concerning handwriting expert
evidence. Learned counsel contended that the trial Court was
at error when it discarded the evidence of DW.2/handwriting
expert. The evidence of expert witness ousted the oral evidence
of PWs.2 and 3 but trial Court concluded otherwise.
Comparison of handwriting is the domain of the expert but the
trial Court went beyond its power and criticized evidence of
expert. That a reading of the impugned judgment would show
the trial Court acted as if it is an expert and questioned the
correctness of the evidence of the expert and in the opinion of
the learned counsel for appellant that approach of the trial
Court is incorrect. Learned counsel argued that since the
appellant was able to show through the expert witness that
Ex.A.1-promissory note was not signed by her, the trial Court
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ought to have dismissed the suit. It is in these circumstances;
the learned counsel urges this Court to allow the appeal and
dismiss the suit.
9. Having given full thought to the earnest submissions of
the learned counsel, the following aspects are to be noted:
Opinion of persons skilled in examining handwriting is a
relevant fact in terms of Section 45 of the Indian Evidence Act,
1872. When handwriting or signature on an instrument fall at
dispute, Section 47 of the Indian Evidence Act operates. The
said provision reads as mentioned below:
"47. Opinion as to hand-writing, when relevant:-
When the Court has to form an opinion as to the person
by whom any document was written or signed, the
opinion of any person acquainted with the handwriting of
the person by whom it is supposed to be written or
signed that it was or was not written or signed by that
person, is a relevant fact."
10. In the case at hand, plaintiff/respondent/PW.1 being a
party to the instrument, namely, Ex.A.1-promissory note, stated
on oath saying that defendant/appellant borrowed money from
him and signed the promissory note. On his behalf the person
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who scribed the promissory note testified as PW.2 and the
person who witnessed the alleged execution testified as PW.3.
Both in one voice said that they saw this appellant borrowing
money from plaintiff and signing on Ex.A.1-promissory note as
borrower. Thus, three witnesses who saw the defendant signing
the promissory note and receiving money supported the pleaded
case of plaintiff. To counter that evidence, the defendant got
Ex.A.1-promissory note examined through the handwriting
expert/DW.2 who rendered Ex.X.1-opinion and gave evidence
before the trial Court where also he expressed his opinion that
the signature on Ex.A.1 was not from the hand of that person
whose undisputed writings were examined by him. Be it noted,
as against that expert evidence, plaintiff did not seek the
opinion of any other expert. Be it also noted that in support of
defendant's own contention that Ex.A.1-promissory note does
not contain her signature, the defendant did not examine any
other witness who was acquainted with her handwriting and
signatures. Thus, the evidence on record boiled down to direct
witnesses three in number on behalf of plaintiff and opinion
evidence of DW.2 on behalf of the defendant. According to the
learned counsel for appellant, the opinion evidence shall prevail
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over the direct evidence. Quality of evidence and credibility of a
witness fall for consideration when a Court appreciates
evidence. While the evidence of an expert witness has to be
given its due weight a few basic principles concerning expert
evidence are required to be noticed. In State (Delhi
Administration) v. Pali Ram1, their Lordships pronounced the
principle that the real function of the expert is to put before the
Court all the materials, together with reasons which induced
him to come to the conclusion, so that the Court, although not
an expert, may form its own judgment by its own observation of
those materials. The handwriting experts' function is to opine
after a scientific comparison of the disputed writing with the
proved or admitted writing. He must point out the points of
similarity and dissimilarity in the two sets of writings. The
Court should then compare the handwritings with its own eyes
for a proper assessment of the value of the total evidence. Their
Lordships further held that the Court must satisfy itself by such
means as are open that the opinion may be acted upon or not.
It is duty bound to verify the premises of the expert and
(1979) 2 SCC 158
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consider the value of the opinion rendered by the expert. The
Court has to accept the fact proved only when it has satisfied
itself on its own observation that it is safe to accept the opinion,
whether of the expert or witness. The above ruling furnishes
two important inputs for a Court to decide on the opinion of the
handwriting expert. It has to see whether the expert has placed
all that material based on which he rendered his opinion. In the
case at hand the expert/DW.2 was examined by an advocate
commissioner at the very office of the expert and he was cross-
examined there itself. DW.2 said that he obtained the enlarged
photographs of the disputed and admitted handwritings and
only then he embarked upon comparison of them. The cross-
examiner requested him to furnish the said enlarged
photographs which he was speaking about. The witness replied
that he did not possess them. Thus, the enlarged photographs
which were said to have been used for comparison by the expert
were not placed by the expert before the Court during his
evidence and deprived the Court from considering that valuable
material. DW.2 stated that he had mentioned the dissimilarities
of handwritings in his Ex.X.1-opinion. In his cross-examination
he had admitted that he did not mention the similarities in the
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two sets of handwritings. This piece of evidence of the witness
stands in violation of the mandate ruled by the Hon'ble Apex
Court in the above referred rulings wherein their Lordships said
that expert owes a duty to the Court to produce the similarities
as well as dissimilarities he observed. Thus, the quality of
expert evidence in the case at hand was not sterling.
11. There is marked difference among various experts
belonging to different branches of science. To put it clearly, the
scientific comparison of fingerprints. By the very unique nature
of fingerprints they differ from one individual to that of the
other. Therefore, on comparing standard and disputed
fingerprints the expert could reach to a definite conclusion.
Such opinion carries conclusive weight. On the other hand,
such perfection in handwriting comparison has not been
attained. Holding that the science of identification of
handwriting is not very perfect and cannot be given undue
weight, their Lordships ruled it in Basheera Begum v.
Mohammed Ibrahim2. In the light of this guiding and guarding
(2020) 11 SCC 174
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principle, the trial Court was obliged to assess the evidence. In
fact the learned Additional District Judge did bestow a lot of
attention on the opinion of handwriting expert/DW.2 and finally
said that his evidence did not inspire confidence. Whether such
comment on part of the trial judge was without any basis or was
it based on some material fact is a matter that has to be
scrutinized here. Learned judge referred to the cross-
examination of DW.2 and made the note of the following facts:
That the undisputed signatures of defendant were not
contemporary to her disputed signature on Ex.A.1-promissory
note. The time gap between the two sets was more than five
years. It also recorded that S.1 to S.18 were the standard
signatures of the defendant and among them there were
apparent variations concerning the way the letters were written.
The learned trial judge then commented the expert's evidence
saying that the expert neither noted nor recognized the natural
variations in the multiple standard writings of the defendant.
The expert in his opinion failed to point out as to against which
of those standard writings the disputed writing is at variance.
This is some important fundamental exercise the learned trial
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judge did. In Pali Ram's case (supra 1), their Lordships
mandated the Courts saying that judging as to the disputed fact
is a matter that exclusively rests with the judge and not with
the expert and the judge was required to consider the opinion of
the expert as one of advise and before he accepts or rejects it he
must make his own assessment of evidence. The trial judge in
this case was up to that standard in assessing the evidence on
record. In the light of these principles and what is stated above
by this Court, the contention of the learned counsel for
appellant that the trial judge committed error in discarding the
evidence of DW.2 is incorrect. The contention of the appellant
that the trial judge instead of acting upon the advice of the
expert's opinion embarked upon his own verification of disputed
writings is also incorrect. What the trial Court did was right in
terms of principles of law and is right in terms of facts. This
Court finds no reason to disturb such well considered findings
of the trial Court.
12. Learned counsel for appellant cited the following rulings:
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1. State of U.P. v. Shanker3. That is a criminal case
where the direct evidence was pitted against medical evidence.
The question was whether the injuries on the deceased were
caused by a weapon called Pharsa. The Courts below were
ignorant that Pharsa was a sharp-edged weapon and the
medical evidence indicated that the injuries on the deceased
could have been caused by a sharp-edged weapon including the
Pharsa. It was on those premises their Lordships rendered the
judgment on facts in that case. This ruling thus in no way
supports the claim made by the appellant here.
2. Nandlal v. Sureshchand Rathi4. That was also a
case of a promissory note like the one at hand where direct
witnesses supported the promissory note and opinion of the
handwriting expert laid a different claim. It was in that context
the Hon'ble Madhya Pradesh High Court had to deal with
presumption under Section 118(a) of the Negotiable Instruments
Act, 1881 also. Finally, what prevailed on the Court was that
the instrument on which the suit was laid suffered
1980 Supp (1) SCC 489
2013 SCC OnLine MP 7045
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interpolations and the other evidence made the Court to think
passing of consideration improbable. A passing observation was
made stating that Courts should not normally take upon itself
the responsibility of comparing the disputed signature with that
of the admitted signature and it should always leave the matter
to the wisdom of experts. The said statement of law is not
incorrect. However, the said principle of law is subject to the
rulings of the Hon'ble Supreme Court of India which this Court
had already adverted to in the earlier paragraphs. This ruling
also does not assist the contention of the appellant.
3. Chenna Naicker v. Mara Naicker5. That was a case
where the expert had examined the disputed writings and
rendered opinion and the Courts disbelieved it primarily on the
point that the disputed signature was in Tamil language and the
expert was not conversant with that language at all. The
further point that was considered therein was that
contemporary writings were not examined to find whether the
disputed writings belonging to the same author or not. Finally,
2014 SCC OnLine Mad 9227
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it stated that the forgery pleaded by the defendant was not
proved. Thus, this ruling does not assist the arguments
advanced for appellant.
4. K.Maniamma v. S.V. Govindaraju6. This case was
decided based on the principles laid down by the Hon'ble
Supreme Court of India in the earlier referred Pali Ram's case
(supra 1). Therefore, nothing more need be stated.
5. Avala Raja Reddy v. Gunti Radha Krishnaiah
Chetty7. In that case the question was whether payment
endorsements were true or forged and whether the suit was
within limitation or not. The matter was mainly on the aspect
with reference to the misjoinder of causes of action or otherwise.
This Court also in this case referred to the judgment of the
Hon'ble Supreme Court of India in the earlier referred Pali
Ram's case (supra 1). In fact that was a case where defendant
did not take steps to have the document examined by expert
and the defendant also denied his signature in the written
statement. Thus, any particular principle that is relevant for
2009 0 Supreme (Mad) 2430
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consideration in considering this appeal cannot be culled out
there.
13. On a reading of the entire judgment of the trial Court and
the material on record, this Court finds that the evidence on
record appropriately established the case set out in the plaint
and the evidence adduced proved borrowal of money and
execution of promissory note by defendant/appellant. There are
no grounds to interfere.
14. In the result, this Appeal is dismissed. Consequently, the
impugned judgment dated 22.10.2011 of learned XI Additional
District and Sessions Judge, Gudivada, Krishna District in
O.S.No.34 of 2010 (Old O.S.No.3 of 2005) stands confirmed.
There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_____________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 08.12.2023
Ivd
2008 SCC OnLine AP 8
Dr. VRKS, J
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
Date: 08.12.2023
Ivd
