Ashok Mohanlal Poddar vs Pawan Ratanlal Chamelia
2017 Latest Caselaw 2997 Bom

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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




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 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

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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

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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

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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

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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

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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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