The Appeal vs "19.Xxxxthe First Appellate ...
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           THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                       APPEAL SUIT No.626 OF 2010

JUDGMENT:

1. The Appeal, under Section 96 of the Code of the Civil Procedure, is

filed by the appellants/defendants 1 and 2 challenging the decree and

Judgment dated 31.05.2010 in O.S. No.6 of 2001 passed by the learned II

Additional Senior Civil Judge, Rajahmundry (for short, 'the trial court'). The

respondent is the plaintiff, who filed the suit in O.S. No.6 of 2001 to recov-

er a sum of Rs.2,50,000/- from the defendants with costs and interest

based on the promissory note.

2. For the sake of convenience, hereinafter the parties are arrayed as

per their respective litigative status before the trial Court.

3. The brief averments of the plaint are as follows:

Defendants 1 and 2 are the brothers and the sons of Parvathini

Subbarao, constituting a joint Hindu family. Subbarao was the Manager of

that family; they engaged in rice business under the name and style of Sri

Srinivasa Rice Mill. The defendants‟ father borrowed Rs.1,00,000/- from

the plaintiff and executed a promissory note and borrowed Rs.1,47,000/-

from the plaintiff's husband, Mangaraju on 16.10.1996 and executed two

promissory notes of Rs.1,00,000/- and Rs.1,47,000/-. Subsequently, the

defendants' father died intestate, leaving behind the defendants, their

sister and mother as his legal heirs. Srinivasa Rice Mill had indebted to

various individuals in the village, and the immovable properties were

mortgaged in the bank. The defendants approached their creditors asking

to wait for some time to settle their debts. The plaintiff and her husband

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waited until October 1999. However, they eventually informed the

defendants that they had no choice except to take legal action, since the

promissory note debts were becoming time-barred. Consequently, both the

defendants executed a promissory note in favour of the plaintiff to cover

the outstanding amount owed to plaintiff and her husband agreeing to

repay the same with interest at 12% per annum. Despite the plaintiff‟s

repeated verbal requests and attempts at mediations, the defendants have

been avoiding making payments, using various excuses. The defendants

are also selling away their properties to settle other debts.

4. The 2nd defendant filed the written statement adopted by the 1st

defendant. The defendants contended that the alleged promissory notes

dated 16.10.1996 executed by their father in favour of the plaintiff are not

genuine. Their father had discharged the debts mentioned in the

promissory note, and there was no outstanding amount owed by their

father to the plaintiff or her family members. Due to the positive

relationship with the plaintiff's family, certain promissory notes were not

returned; the plaintiff and her husband asserted that the promissory notes

signed by the defendant's father had been torn into pieces. As a result, it is

believed that matter involving the claims against the defendants‟ father

relating the promissory notes have been resolved. The defendants‟ father

passed away intestate on 16.08.1998. The Rice Mill business did not

flourish, and no profits were generated. The immovable properties of the

defendants' family were mortgaged in the bank for the rice mill business.

Neither the plaintiff nor her husband ever informed the defendants

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regarding any outstanding debts. The promissory note dated 14.10.1999 is

a fabricated one, and the signatures of the defendants are forged on it. The

defendants reserve their right to send the suit promissory note to the

handwriting expert to verify the authenticity of signatures. There is no

nexus between the promissory notes dated 16.10.1996 and the suit

promissory note dated 14.10.1999. The suit promissory note is not

supported by consideration.

5. Based on the above pleadings, the trial Court framed the issues:

1) Whether the defendants executed the suit promissory note dated 14.10.1999 and there by renewed the earlier debt due by Subba Rao under three promissory notes?

2) To what relief?

6. During the trial, on behalf of the plaintiff, pw. 1 to 3 were examined,

and Exs.A1 to A.4 were marked. On behalf of the defendants, D.Ws.1 to 3

were examined, and Exs.B.1 to B.4 and Exs.X.1 and X.2 were marked.

7. Having considered the materials placed before him, the learned II

Additional Senior Civil Judge, Rajahmundry, decreed the suit, directing the

defendants 1 and 2 to pay the plaintiff a sum of Rs.2,50,000/- together

with subsequent interest at 12% p.a., from the date of filing of the suit till

the date of decree and subsequent interest at 6% per annum on

Rs.2,50,000/- from the date of decree till realization and costs.

8. Ms.Shanti Chandra, learned counsel for the appellants/defendants,

contends that the trial court ought to have given credence to the evidence

and material documents produced by the appellant. The trial Court failed

to properly consider the assessment made by the handwriting expert.

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Additionally, no objections were raised during cross-examination of witness

about the admitted signatures. The trial Court failed to see no nexus

between Exs.A.1 to A.3 and A.4. The trial Court erred in finding a

settlement of accounts between the parties, and the defendants executed

Ex.A.4-promissory note.

9. Despite several opportunities given to the respondent/plaintiff, she

did not appear either in person or through counsel representing on her

behalf to submit arguments.

10. Considering the pleadings in the suit, the findings recorded by the

trial Court and in light of the rival contentions and submissions made, the

following points would arise for determination:

1) Was the trial Court justified in holding that the defendants executed Ex.A4-promissory note in favour of the plaintiff as renewal of Exs.A.1 to A.3?

2) Was the decree and Judgment passed by the Trial Court needs any interference?

POINT NOs.1 & 2:

11. Before delving into the evidence regarding the rival contentions, there

are certain specific preliminary facts that are undisputed and may be set

out. Defendants 1 and 2 are brothers and the sons of Parvathini Subbarao;

they were involved in the family business focused on rice operating under

the name Sri Srinivasa Rice Mill. Chundru Lakshmi Narayanamma, who is

the plaintiff‟s mother-in-law, filed a suit (referred to as O.S.No.498 of 1999)

against the defendants 1 and 2 based on a promissory note. In the said

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suit, the defendants contended that the suit promissory note was forged.

However, as a result of compromise, the defendants paid the required

amounts to fulfill the decree terms. A certified copy of petition in I.P.No.27

of 2000 (referred to as Ex.B1) indicates that Bolla Venkata Lakshmi and

Chundru Lakshmi Narayana (petitioners 1 and 2) initially lodged a

Creditors Insolvency Petition under Section 6 and 9 of Provincial of

Insolvency Act against the defendants and others. They alleged that

Subbarao, defendants‟ father, established a Rice Mill and conducted rice

related business accumulating substantial debts. The 2nd petitioner filed a

suit (O.S.No.498 of 1999) to recover a sum of money, while the 1st

petitioner filed a suit (O.S.No.459 of 1999) against respondents 1 and 2

based on the promissory notes.

12. It is the petitioner‟s case in I.P.No.27 of 2000 that the respondents 1

and 2/defendants alienated the schedule property to the respondents 3

and 4 through Registered Sale Deeds dated 24.04.2000 and 25.05.2000.

Subsequently, as per the orders passed in I.A.No.74 of 2001 on

20.07.2001, the plaintiff was impleaded as the 3rd petitioner in I.P. The 2nd

respondent filed a counter in I.P.No.27 of 2000, marked as Ex.B2, in

which, he raised the same arguments that had presented in the suit to

oppose the Insolvency Petition. Copy of the order in I.P.No.27 of 2000

marked as Ex.B3 indicates that the Creditors Insolvency Petition was

dismissed. Ex.B3 also reveals that petitioners 1 and 2 filed the said petition

within three months from the date of transferring Items 1 and 2 of the

schedule property. However, the 3rd petitioner (plaintiff in this case) was

T.M.R.,J A.S. No.626 of 2010

added as a party after a month had passed. In Para No.10 of Ex.B.3 order,

the court noted that the respondents 1 and 2 had cleared the debt owed to

the petitioners 1 and 2. Consequently, the dispute centered solely around

the 3rd petitioner (i.e., plaintiff herein) and respondents 1 to 4. The D.W.1‟s

testimony in the cross-examination indicated that another individual

named Parvatha Narasimha Rao had also initiated a suit (O.S.No.89 of

1998) against the defendants to recover an amount based on a promissory

note. It appears that the defendants had resolved their debt with other

creditors except for the plaintiff.

13. According to the P.W.1‟s evidence, the father of defendants 1 and 2,

representing the Firm as managing partner, executed a promissory note

dated 16.10.1996 for Rs.1,00,000/- in the plaintiff‟s favour and another

two promissory notes on the same date viz. one for Rs.1,00,000/- and

another for Rs.47,000/- in favour of the plaintiff‟s husband Mangaraju and

executed three promissory notes in total sum of Rs.2,47,000/-. The

plaintiff relied on Exs.A.1 to A.3 promissory notes to establish the fact. It is

the P.Ws.1 to 3‟s version that during the year 1997-98, the father of the

defendants died, and on 14.10.1999, the plaintiff, her husband and the

defendants settled their accounts and found that the defendants and their

father became due an amount of Rs.2,50,000/- to the plaintiff and the

defendants executed Ex.A4 promissory note for Rs.2,50,000/- in favour of

the plaintiff.

14. In the P.W.1‟s cross-examination, it is elicited that her husband‟s

brother Subbarao looks after the suit promissory note transactions on

T.M.R.,J A.S. No.626 of 2010

behalf of her husband; the 1st attestor of Ex.A4 is their relative, and he is a

native resident of Rajavolu; her husband Chundru Veera Venkata Satya

Manga Raju was also present on the date of Ex.A4 and she identified her

husband‟s signatures in Ex.A4 as 2nd attestor. In the cross-examination,

P.W.1 stated that she does not know the scribe, Veera Babu, was brought

by the defendants.

15. P.W.2 (M.V.Satyanarayana) testified about his relationship with

P.W.1, his maternal uncle‟s daughter-in-law. One Veera Babu was the

scribe of Ex.A.4 as D.2 brought him to scribe Ex.A.4. PWs.1 and 2 also

stated that no consideration was passed under Ex.A.4 to the defendants on

the date of its execution.

16. The evidence of P.W.3 (J.Veera Babu) shows that P.W.1 claims that

she did not have acquaintance with P.W.3 before Ex.A.4 transaction, and

P.W.3 states that before Ex.A.4 promissory note, he knows the plaintiff. No

accounts for the previous balance amount were placed before him by both

the defendants before he scribed Ex.A.4 promissory note. Previously, he

worked as a Tractor Driver under the defendants, but he was not in service

by the time of giving evidence.

17. Coming to the evidence of D.W.1 (Parvathini Govindarajulu), the 1st

defendant testified that he never entertained any transaction, much less an

alleged promissory note transaction with the plaintiff. He denied the

plaintiff‟s case that his father/Subbarao borrowed Rs.2,47,000/- from the

plaintiff‟s family and executed Exs.A.1 to A.3 promissory notes. D.W.1

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further testified that his father informed him that he discharged the debt

payable under Exs.A.1 to A.3, but they have no record to show the same.

18. The 2nd defendant, who was examined as D.W.2-Parvithini

Srinivasan, also deposed in the same lines as that of the D.W.1‟s evidence.

19. D.W.1 admitted that they did not issue any notice to the plaintiff

subsequent to the demise of their father; the stamp relating to the Rice Mill

affixed on the Revenue stamp on Exs.A.1 to A.3 belong to their Firm and

their Firm maintain accounts, but the debt under Exs.A.1 to A.3 is not

revealed in firm account; he deposed in I.P. No.27 of 2000 that all the

amounts that they borrowed from other are noted in the Rice Mill account;

for the last twenty years they are running the Rice Mill and also paying the

Sales Tax and Income Tax and maintaining accounts properly; if the

amounts under Exs.A.1 to A.3 were really discharged by his father, the

same would be revealed in account books; he deposed in I.P., that the

promissory note in O.S. No.459 of 1999 was forged one. Later, the matter

was settled in Lok Adalat.

20. Coming to the D.W.2‟s evidence in the cross-examination, he also

testified that there were account books for the Firm during the lifetime of

his father, and whenever any amounts paid to his father for the Firm used

to maintain the accounts and if any amounts were paid, the debt entry is

also noted in the accounts.

21. Based on the testimonies given by D.Ws.1 and 2, the trial Court

arrived at a conclusion that if the defendants' father already discharged the

debts under Exs.A.1 to A.3 during his lifetime, certainly it would be

T.M.R.,J A.S. No.626 of 2010

recorded in the account books of Rice Mill. Because the funds from the

promissory notes mentioned in Exs.A.1 to A.3 were utilized for the

operations of the Rice Mill business; non-production of account books of

the Rice Mill business leads to draw the presumption that if those accounts

books were presented, they would likely contradict the arguments put forth

by the defendants. Given that the defendants were unable to substantiate

their claim that their father had discharged the debts linked to the

promissory notes, it follows that the amount owed under Exs.A.1 to A.3 to

the plaintiff constitutes the consideration for the promissory note

mentioned in Ex.A.4.

22. In a decision reported in Thiruvengada Pillai vs Navaneethammal

and another1, the Hon‟ble Apex Court observed that:

"19.xxxxThe first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first de- fendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative.".

23. Upon examination of the evidence adduced on record, the trial Court

reached an erroneous conclusion due to the defendants‟ inability to settle

the debts mentioned in the promissory notes in Exs.A.1 to A.3, these debts

basis for the consideration indicated in Ex.A.4 promissory note. However,

this Court views that the defendants‟ failure to clear the debts associated

1A.I.R. 2008 SC 1541

T.M.R.,J A.S. No.626 of 2010

with Exs.A.1 to A.3 should not automatically be interpreted as evidence

that consideration was passed under the Ex.A.4 promissory note. The bur-

den lies with the plaintiff to establish that the defendants 1 and 2 were the

once who executed the Ex.A.4 promissory note.

24. However, it is well settled that the consideration for any contract

need not be contemporaneous to the document itself. Consideration can be

past, present and future. The same is valid in law as long as the law does

not prohibit it. The presumption under section 118 of N. I Act may not nec-

essarily be as the amounts specified in the promissory notes.

25. In Civil cases, the preponderance of probability constitutes a suffi-

cient ground for decision if the facts and circumstances are such that no

reasonable man would draw a particular inference from them or if the de-

gree of probability in the case is such that as to include any hypothesis be-

sides the one to be proved then the party who relies on a particular theory

cannot be said to have discharged the onus of proof of establishing that

theory. But, if the evidence is strongly prepondering in favour of any of the

two theories set up, the Court is entitled to act on it.

26. The first circumstance strongly relied on by the defendants to

disprove the plaintiff's case is the Expert opinion‟s report under Ex.X.1.

The trial Court has not recorded specific reasons for not accepting the

Expert opinion.

27. To prove the Expert opinion, the defendants were examined by

Handwriting Expert/Y.Surya Prasad as D.W.3. Ex.X.1 is the letter

addressed to the Court by the Handwriting Expert; Ex.X.2 is the office copy

T.M.R.,J A.S. No.626 of 2010

of the Expert report. The D.W.3's evidence, coupled with the Expert report,

shows that the report favours the defendants. The Expert has given his

report under Ex.X1 regarding the signature of D.1 and D.2 with the

following reasons, as mentioned hereunder in para No.1 and para No.2

respectively:

"Para 1:

The nature and manner of commencement of the initial stroke along with its relative location and direction of the vernacular character reading 'Ga', the shape of the curved part at the top as well as the favour relative location of its downward termination, the manner of formation of the 'okar matra' which 0fis slowly drawn as observed in Q1 is differently observed with the standards; the nature of form and formation of the characters reading 'Govind Raju Vralu' in the vernacular as occurring in Q1 are different with that of the related characters with the standards as these characters in Q1 exhibit poor line quality and slowness in the execution of the strokes at many places along with the formation of blunt terminal finishes.

The dissimilarities observed above are beyond the range of natural variations and intended disguise, and the cumulative consideration followed is sufficient and convincing and, when considered collectively, does not occur in the writing habits of a common person, leading me to the above opinion. I have also looked for the similarities but found none.

Para 2:

The nature and manner of formation of the initial letter reading 'P' in Q2 is clumsily drawn. The nature of commencement along with the impulse in the middle curved portions of „S‟ along with its extent of termination at the base; the manner of extended commencement of the initial stroke of letter 'r', the shape of its horizontal body part and the manner of its downward commencement along with the nature of its combination with the succeeding letter „i'; the shape of the impulse of the character reading 'neither at the commencement

T.M.R.,J A.S. No.626 of 2010

nor at termination; the extent of placement of 'I' dots; the shape of the curved body part of letter 'V'; the nature and manner of combination of terminal letters reading 'as' in the word 'Srinivas' of Q2, the marks of retrace and the nature of inward termination along with its location, as observed among Q2, are all differently observed with the related characters of the standards.

The dissimilarities observed are beyond the range of natural variation and intended disguise. The cumulative consideration of various dissimilarities observed is sufficient and convincing and, when considered collectively, does not occur in the writing habits of a common person, leading me to the above opinion. I have also looked for the similarities but found none."

"The documents of this case have been carefully and thoroughly examined.

1. The person who wrote the blue enclosed signatures stamped and marked S1 to S18 and C1 did not write the red enclosed signature similarly stamped and marked Q1.

2. The person who wrote the blue enclosed signatures stamped and marked B1 to B18 and A1 did not write the red enclosed signature similarly stamped and marked Q2."

28. This Court perused the docket maintained by the trial Court dated

31.08.2009. The trial Court observed that it noticed at the time of

preparation of the Judgment that some mistakes had been crept in sending

documents to the Expert; the defendants filed I.A.No.434 of 2005 under

Section 45 of the Evidence Act to send Ex.A.4 promissory note along with

Award in O.S. No.949 of 1999 and the Pattadar Passbook in the name of

2nd defendant for deciding the genuineness of the disputed documents; the

fact remains that the defendants Vakalat was not sent to the Expert along

with the disputed Ex.A4 promissory note, for comparison, the said fact was

not brought before the trial Court earlier by both the parties. The trial

T.M.R.,J A.S. No.626 of 2010

Court observed that the learned counsel for the plaintiff should have

informed the said mistake initially. Still, the first time in the written

arguments pointed out the non-referring of the defendant's vakalat to the

Expert opinion.

29. The trial Court took notice of the fact that the defendants had

initiated a Revision Petition registered as C.R.P.No.5580 of 2008 in the

High Court, questioning the order dated 25.11.2008 passed by the trial

Court regarding closure of the proceedings of the Expert. The High Court

was pleased to consider and allowed the revision by setting aside the

impugned order dated 25.11.2008. The defendants were allowed to take

steps to send a document to the Expert as per the orders in I.A. No.434 of

2005, dated 18.02.2008, within two weeks. The trial Court observation

shows that the office, instead of sending the defendants‟ Vakalat and

specimen signatures of defendants obtained in the Court and sent the

Award in O.S.No.949 of 1999 and Pattadar Passbook in the name of the 2nd

defendant apart from specimen signatures of the defendants 1 and 2. After

examination of the Expert, learned counsel representing the plaintiff

objected to the trial Court, pointing out that the defendants‟ Vakalat was

not sent to the Expert despite an order passed by the High Court. The

docket order indicated that the plaintiff‟s counsel contended that the trial

Court‟s actions amounted to a violation of the High Court order.

30. Only on plaintiff‟s counsel submissions, the trial Court reopened the

matter and sent the defendants‟ Vakalat to the Handwriting Expert along

with a suit promissory note and other documents and obtained another

T.M.R.,J A.S. No.626 of 2010

opinion from the Handwriting Expert. Though the trial Court received the

supplementary opinion from the Handwriting Expert, it did not look into it

as it was not marked, and the Expert was not examined. Though the

supplementary report cannot be referred on as it is not marked, but it is

available in the Court record. The supplementary report actually supports

the defendants‟ case. However, this Court is also not inclined to take the

supplementary report into consideration due to its non-marking.

31. Upon rejecting the Expert opinion, the trial Court made a note of the

fact that the LokAdalat Award and Pattadar Passbook had not been

admitted by the plaintiff nor substantiated by the defendants. The Expert

report indicated that the specimen signatures of the defendants obtained in

the Court and the signature on the Award passed by the Lok Adalat in

O.S.No.949 of 1999, Pattadar Passbook and signature, were referred for

Expert opinion. The suit transaction was said to be held in the year 1999,

and the Lok Adalat Award was passed in the year 1999. The record shows

that Pattadar Passbook contains the signature of P.Srinivasu/D.2. The

plaintiff‟s case is that the said P.Srinivasu subscribed his signature in

Exs.A.1 to A.3 promissory notes, as scribe in the year 1996, but for the

reasons best known to the plaintiff, she did not request the Court to send

the admitted signatures of P.Srinivasu for comparison by the Expert. It is

unclear why the plaintiff hesitated to request signatures of P.Srinivasulu

contained in Exs.A.1 to A.3 for Expert opinion but insisted on sending the

defendant Vakalath for Expert to the comparison.

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32. Section 73 of the Evidence Act authorizes the Court to compare the

disputed signatures with the admitted signatures to reach its conclusions.

However, it is always for the court to take the aid of a Handwriting Expert

to have the expertise to scientifically compare such signatures with

reasons. Expert opinion could give much more clarity for arriving at a

decision based on the truth and genuineness of a disputed document. In

this regard, the opinion of an Expert, as enumerated under Section 45 of

the Evidence Act, has been declared a relevant fact. However, the Expert

opinion under Section 45 of the Evidence Act is not conclusive proof of the

fact. It is only an opinion to guide the Court to arrive at a correct

conclusion as to whether the individual concerned made the disputed

signatures. Expert opinion can give much more clarity for arriving at a

decision based on the truth and genuineness of a disputed document.

33. The Expert has given cogent reasons for his opinion that the

disputed signatures and the admitted signatures were not written by the

same person. The trial Court has not considered the Expert report on the

ground that signatures compared with the admitted signatures are post-

litem mortam. As seen from the record, the Lok Adalat Award referred to the

opinion of the Expert, pertains to the period 1999.The signature of P.

Srinivasu/D.2 is found on Ex.A1 to A.3 relating to the period1996. The

plaintiffs claim that D.2 subscribed his signatures on Exs.A1 to A3 relating

to 1996.

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34. In a decision reported in Ajay Kumar Parmar vs. the State of

Rajasthan2, the Hon‟ble Apex Court observed thus:

"28. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the court from comparing signatures or handwriting by using its own eyes to compare the disputed writing with the admitted writing and then from applying its observation to prove the said handwriting to be the same or dif- ferent as the case may be, but in doing so, the court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the court may also not be conclusive. Therefore, when the court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwriting, the court must keep in mind the risk involved, as the opinion formed by the court may not be conclusive and is susceptible to error, especially when the exer- cise is conducted by one, not conversant with the subject. The court, therefore, as a matter of prudence and caution, should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion of an expert or any witness, the court may then apply its observation by comparing the signatures or handwritings for providing a decisive weight or influence to its deci- sion."

35. In a decision reported in State of Maharashtra vs Sukhdeo Singh

and another3, the Hon‟ble Apex Court is pleased to refer the decision in-

Murari Lal vs State of Madhya Pradesh4 and observed that:

"11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion-evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Rea-

sons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which,

2 (2012) 12 SCC 406 3 1992 0 AIR(SC) 2100 4 (1980) 1 SCC 704

T.M.R.,J A.S. No.626 of 2010

in the ultimate analysis, is no more than a question of testimonial weight."

"What emerges from the case-law referred to above is that a hand-writing expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court can- not afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of fingerprints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of pru- dence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the court has to decide in each case on its own merits what weight it should attach to the opinion of the Expert."

35. In a decision reported in Bande Siva Shankara Srinivasa Prasad

vs Ravi Surya Prakash Babu and others5, the Full Bench of Composite

High Court of Andhra Pradesh held thus:

"7. In the circumstances, the following issues are, in our view, rele- vant to be considered before proceeding to answer the reference.

(a) Are contemporaneous handwritings/signatures always or normally necessary for comparison and report;

(b) What is the meaning of contemporaneous, and what is the measure of contemporaneity;

(c) Why are Examiner of Questioned Documents frequently re-

turning documents sent to them for opinion to the referring Court for contemporaneous signatures/handwritings? Are current handwriting science/expert protocols in the area in- capable of comparing handwritings/signatures without con- temporaneous models for comparison, whether in all cir- cumstances or only in specific situations, and if in specific situations, what are the range of circumstances where con- temporaneous handwritings/signatures required for render- ing an opinion?

5 (2016) 2 CTC 481 (F.B.)

T.M.R.,J A.S. No.626 of 2010

8. As the above issues are more appropriately addressed by an ex- pert in the field, we direct the Director of Central Forensic Science Laboratory, Ramanthapur, Hyderabad, to call upon the Government Examiner of Questioned Documents or any other appropriate expert in the field to draw up a report on the three issues referred to above, enclosing any scientific/academic material to support the conclusions of such Expert. xxxxxx

15. The gist of the expert's opinion emerging from the Report is that it is not always necessary to have contemporaneous handwrit- ing/signatures for comparison. However, as a general rule, it would be desirable to compare admitted handwritings/signatures with disputed handwritings/signatures that fall within 2 or 3 years from each other. Therefore, there can be no hard and fast norm as to when a comparison can or cannot be undertaken owing to the time lag between the two sets of handwriting/signatures. xxxxxxxxxxxxxxxxxx It is, therefore, not open to the Court to refuse to entertain an appli- cation seeking a comparison of disputed handwritings/signatures with admitted handwritings/signatures on the ground of a long lapse of time between the two sets of handwritings/signatures.

While answering the reference, the Full Bench of the composite High Court of Andhra Pradesh observed that:

27. It is essentially within the judicious discretion of the Court, de- pending on the individual facts and circumstances of the case be- fore it, to seek or not to seek expert opinion as to the comparison of the disputed handwriting/signature with the admitted handwrit- ing/signature under Section 45 of the Indian Evidence Act, 1872. The Court is, however, not barred from sending the disputed handwriting/signature for comparison to an expert merely because the time gap between the admitted handwriting/signature and the disputed handwriting/signature is long. The Court must. However, endeavour to impress upon the petitioning party that comparison of disputed handwritings/signatures with admitted handwrit- ings/signatures, separated by a time lag of 2 to 3 years, would be desirable to facilitate expert comparison in accordance with satis- factory standards. That being said, there can be no hard and fast rule about this aspect, and it would ultimately be for the Expert concerned to voice his conclusion as to whether the disputed handwriting/signature and the admitted handwriting/signature are capable of comparison for a viable expert opinion.

T.M.R.,J A.S. No.626 of 2010

37. As seen from the record, the plaintiff insisted on sending Vakalat for

comparison after receipt of the Expert Report, Supplementary report is

called for. Though the defendant's signatures on the Vakalat and the spe-

cimen signatures cannot be considered signatures of comparable and as-

sured standards, the report of Expert shows that the Expert did not find

any dissimilarities in S.1 to S.18 and B.1 to B.18 while comparing with the

disputed signatures. The Expert report also shows that disputed signatures

and admitted signatures are capable of comparison and come to a conclu-

sion in the considered opinion of this Court. When an expert opinion is giv-

en, the Court has to see for itself and, with the assistance of an expert,

come to its conclusion whether it can safely be held that the two writings

are by the same person. In short, the opinion of the Handwriting Expert

may be relied upon along with other various items of external and internal

evidence relating to the document in question. Moreover, the Handwriting

Expert's opinion is not conclusive and should be given some consideration

and weight when corroborated by other evidence in the considered opinion

of this Court.

38. Upon examining the Expert opinion, I undertook a thorough compar-

ison between the signatures of the defendants that were admitted and dis-

puted signatures found in Ex.A.4. Substantial disparities were evident be-

tween the admitted signatures and disputed ones. After carefully assessing

the Expert opinion and considering the signature comparisons, it leaves no

doubt in my mind that the disputed and admitted signatures do not appear

to have been signed by the same individuals. I don‟t find any compelling

T.M.R.,J A.S. No.626 of 2010

reason to discard the Expert opinion, which is supported by convincing

reason. The Expert opinion is well founded supported by strong reasoning

and highlighted noticeable differences between the disputed and accepted

signatures. The Expert‟s analysis was based on signatures found in public

documents. It would be unreasonable to speculate that the defendants, in-

anticipation of a legal dispute, disguised their signatures while obtaining

the pattadar passbook and the Lok Adalat award, both of which entail legal

rights for them. Such an assumption is unlikely given the circumstances.

39. According to the plaintiff‟s case, as already noted, Exs.A.1 to A.3

promissory note transactions were held by the defendants‟ father on

16.10.1996. It is also the plaintiff‟s case that, subsequently, the defen-

dants‟ father died, and she requested the defendants to renew the promis-

sory note. It is elicited in the D.W.2‟s cross-examination that his father

passed away on 16.08.1998. According to the plaintiff, the defendants exe-

cuted Ex.A.4 promissory note on 14.10.1999. It is worth noting that based

on the plaintiff‟s own assertion, the expiration of the three years of limita-

tion period for the promissory notes in Exs.A.1 to A.3 had not occurred by

the time of the Ex.A.4 transaction. Considering the time line, the plaintiff

could have filed suit based on the Exs.A.1 to A.3 promissory notes on or

before 17.10.1999. However, as per the plaintiff‟s version, the defendants

executed Ex.A.4 promissory note on 14.10.1999.

40. At this juncture, it is pertinent to note that while recording the

P.W.1‟s evidence in the cross-examination, Exs.A.1 to A.3 promissory notes

were mistakenly referred to as Exs.A.2 to A.4, and the suit promissory note

T.M.R.,J A.S. No.626 of 2010

Ex.A.4 is referred to as Ex.A.1. In Para 8 of the impugned Judgment, the

trial Court has specifically made a mention that during P.W.1‟s cross-

examination that exhibit numbers were referred as Ex.A.1 instead of

Ex.A.4 and Exs.A.2 to A.4 are referred instead of Exs.A.1 to A.3 and a

memo is also filed by the defendants to the effect that due to typographical

mistake, exhibit numbers are wrongly typed and Ex.A.1 has to be read as

Ex.A.4 and Exs.A.2 to A.4 shall read as Exs.A.1 to A.3 and no objection is

endorsed by the plaintiff‟s advocate on the said memo.

41. P.W.1, in her cross-examination, testified that she does not know

why Ex.A.1 to A.3 promissory notes were not cancelled and why they were

retained with her; she does not know whether any mediation took place for

the payment covered under Ex.A.4 promissory note.

42. In this regard, P.W.2 testified in cross-examination that nothing was

endorsed on the backside of Exs.A.1 to A.3 about calculations. Exs.A.1 to

A.3 were kept with P.W.1 as the defendants did not demand to return

them.

43. Considering the P.W.3‟s testimony during cross-examination, it is

apparent that neither party presented any accounts related to previous

balance amounts when he was tasked with drafting the Ex.A.4 promissory

note. This situation raises questions about the feasibility of performing

accurate calculations at the time of Ex.A.4 promissory note's execution. It's

important to note that it is not common practice for a sensible person to

retain promissory notes like Exs.A.1 to A.3 with the lender, primarily

because such a situation increases the likelihood of legal action being

T.M.R.,J A.S. No.626 of 2010

initiated based on those promissory notes (Exs.A.1 to A.3). Given these

circumstances, one might expect that if the defendants indeed executed the

Ex.A.4 promissory note, they would have insisted on having a cancellation

endorsement made on Exs.A.1 to A.3, especially while leaving those

promissory notes with the plaintiff. Curiously, P.Ws.1 to 3 did not provide

any plausible explanation for the retention of Exs.A.1 to A.3 by the plaintiff

despite the existence of the Ex.A.4 promissory note.

44. Another significant discrepancy arises from the contents of Ex.A.4,

the suit promissory note. In Ex.A.4, there is a specific reference, as per the

printed text, that the defendants received the consideration amount on the

same day of the note's execution. However, according to Ex.A.4 and the

testimonies of P.Ws.2 and 3, it is suggested that due to a lack of space on

the document, an adjustment was made by the scribe. This adjustment led

to an insertion in the 8th line of Ex.A.4, which reads as follows:

"16.10.1996 తేదీని మా తండ్రిగారు, Rice Mill వ్ాాపార నిమితత ం మీవద్ద మీ భరత గారి

వద్ద తీసుకొన్న రొక్కం లెక్క సరిసూసికోగా ఈ సరికి ఇవవతేలిన్ సొ మము తీరచే...."

Obviously, the insertion does not refer to Exs.A.1 to A.3 promissory notes.

The insertion in Ex.A.4 presents a notable inconsistency and contradiction

in comparison to the recitals of Ex.A.4 itself, which states that the

consideration was received by the defendants on the same day of the

promissory note's execution. The presence of such conflicting statements

regarding the transfer of consideration in Ex.A.4 raises doubts about the

credibility of the manner in which the transaction was conducted, as

described by P.Ws.1 to 3.

T.M.R.,J A.S. No.626 of 2010

45. As the defendants discharged the debt payable to some of the

creditors in I.P.No.27 of 2000, as rightly contended by the defendant's

counsel, the possibility of the plaintiff creating the suit promissory note

cannot be ruled out to realise the amount from the plaintiff. As an

afterthought they might have taken steps to implead themselves as parties

to the proceedings.

46. The evidence adduced indicates that the defendants settled their

debt with the plaintiff‟s mother-in-law and others after the suit was

instituted. Despite this, they contested the validity of the suit promissory

note. It is noteworthy that the trial Court did not consider the fact that

P.W.2 is closely relative to P.W.1. Moreover, the trial Court also overlooked

the fact that there are inconsistencies in the P.W.3‟s testimony, who

claimed to have scribed the promissory note at the D.1‟s residence.

According to PW.3, the D.1 brought another promissory note executed by

him in favour of the plaintiff. Despite noting the discrepancy found in

P.W.3‟s evidence, the trial Court ignored the discrepancy without giving

any valid reasons. As indicated by P.W.3 that Ex.A.4 is not a renewal of

previous promissory notes. Furthermore, it is puzzling that no records of

previous balance amounts were placed before PW.3 despite the inclusion of

some sentences relating to the last transaction in Ex.A.4.

47. The P.W.3‟s evidence shows that between 12 noon and 2 P.M., he

scribed Ex.A.4 promissory note at the defendants‟ house at Rajavolu in the

presence of the plaintiff, attestors and defendants.P.W.3 needs to learn the

contents of Exs.A.1 to A.3 promissory notes, which stood in the name of

T.M.R.,J A.S. No.626 of 2010

P.W.1 and her husband. On the evidence of P.W.1 in cross-examination,

she stated that Ex.A.4 was executed at about 12 Hrs at her house.

48. P.W.2, in the cross-examination, testified that they had not noted

down the details of the previous cash transactions and calculations at the

time of Ex.A.4; the calculations took place at about 9.00 A.M. on the date

of Ex.A.4, and Ex.A.4 was written at about 12 Hrs; Exs.A.1 to A.3

promissory notes were brought by the plaintiff on the date of Ex.A.4; the

defendants‟ father paid the interest amount under cover of Exs.A.1 to A.3,

but the payments were not endorsed on the back side of Exs.A.1 to A.3;

there is no endorsement about cancellation of the debt covered under

Exs.A.1 to A.3 on the backside of the Exs.A.1 to A.3; at the time of 12 Hrs,

they were all gathered at the P.W.1‟s house on the date of Ex.A.4. The

PWs.1 to 3‟s evidence is not consistent regarding the calculation of

amounts payable under Exs.A.1 to A.3 and payments made by defendants‟

father at the time of alleged Ex.A4 transaction. They could not give

payment details allegedly made by the defendant's father. PW.3 knows

nothing about Exs.A.1 to A.3 transactions and calculations made regarding

Exs.A.1 to A.3 transactions. In such a case, he must explain why he made

such insertions in the suit promissory note.

49. There is no doubt that there are discrepancies as to the time of the

promissory note transaction. However, the discrepancies regarding time are

not so severe as to make distrust the evidence of the P.Ws.2 and 3.

50. An overall reading of testimonies of P.Ws.1 to 3 clearly shows a

discrepancy regarding the place of execution of the promissory note.

T.M.R.,J A.S. No.626 of 2010

Stress, however, has been laid on a discrepancy in the evidence of P.Ws.1

to 3 regarding the place of the execution of the promissory note. Had the

transaction taken place, as they contended, such a discrepancy would not

have come in their evidence. This Court also views that when Exs.A.1 to

A.3 contained a stamp relating to the Rice Mill affixed on the Revenue

stamp, the plaintiff failed to explain why it was not affixed on Ex.A.4

though the debt is related to the Rice Mill transaction. Had the transaction

occurred, the plaintiff would have insisted on affixing the stamp of Rice Mill

on Ex.A.4 promissory note.

51. The report of Expert and his evidence and the circumstances referred

to earlier by this Court, when taken together, create doubt about the

genuineness of Ex.A4 transaction and dislodge the effect of evidence of

P.Ws.1 to 3.

52. For the reasons stated above and regarding the case facts, this

Court views that the defendants have established their case. The findings

and conclusions recorded by the trial court are based on something other

than proper appreciation of the evidence on record. Non-consideration of

the evidence adduced on behalf of the defendants vitiated the trial Court's

findings. The trial court's Judgment is erroneous, cannot be sustained, and

is liable to be set aside. Given the preceding discussion, the Appeal has to

be allowed. Accordingly, the points are answered.

T.M.R.,J A.S. No.626 of 2010

53. As a result,

(a) The Appeal is allowed without costs;

(b) The Judgment and Decree passed by the Trial Court in O.S. No.6 of 2001, dated 31.05.2010, is set aside.

(c) The suit in O.S. No.6 of 2001 is dismissed with costs.

Miscellaneous petitions pending, if any, in this Appeal shall stand

closed.

__________________________________ JUSTICE T. MALLIKARJUNA RAO Date:01.09.2023 SAK/MS

T.M.R.,J A.S. No.626 of 2010

THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

APPEAL SUIT No.626 OF 2010 Date: 01.09.2023

MS