Raju Anand vs Madhu Kumari
1989 Latest Caselaw 297 Del

JUDGMENT

M.K. Chawla, J.

(1) The present Execution First Appeal is directed against the Judgment of the Additional District Judge, dated 6/02/1989whereby the attached goods assest, and properties of the Judgment-debtor (Appellant before this Court) have been directed to be auctioned and the sale proceeds to be given to the decree-holder in satisfaction of the decrial amount, and if the sale proceeds of the auctioned goods are not found sufficient to meet the amount of the decree of Rs. 72,537-62?., with costs and interest at the rate of 12 per annum on this amount from the date on 14.7.86 till its realisation, then the Jud

(2) The only question that revolves round for determination is the subject-matter of issue no. 2 which reads as under : "WHETHER Raju Anand, Judgment debtor has made the payment of Rs. 72.53762P. to Shri Krishan Chander, attorney of the decree holder ? "

(3) The controvertial document is the receipt Ex. Jdw 1/1 by which the Judgment-debtor is alleged to have made the payment of the amount of the decree in cash, whereas there is a complete denial of the execution and receipt of any amount by Shri Krishan Chander, General Attorney of the decreeholder.

(4) Both the parties agr that during the course of the execution proceedings in court of Shri J.P. Singh, Additional District Judge Delhi on 14.7.86,Mr. Saiful Islam, Advocate of the Judgment-debtor, informed the court that his client was willing to make full payment of the amount of the decree. He requested the court to call upon the general attorney who was present incourt, to let him know the actual details of the amounts due from The Judgment-debtor till that date. On the asking of the court, the attorney of the decreeholder recorded all the amounts due from the Judgment-debtor on a piece of paper and after putting his signautre, banded over the Same to the court. After going through it, the learned Judge passed on that Piece of document to Shri Saiful Islam, Advocate, who kept the same with him.So far so good. Then there are two rival versions, as to how this Document reached the Judgment-debtor. A this stage, there is no need to go into thesefacts.

(5) It is the case of the Judgment-debtor that at about 5 P.M. on 4/07/1986, be contacted his counsel at his Connaught Place office And collected the document. After .spending about 5 to 7 minutes, he went To the house of Shri Krishan Chander in a three-wheeler scooter and Found him standing at the gate. He requested Krishan Chander to collect the Whole of the account of the decrees from his house. Krishan Chander, according To the Judgment-debtor, reached his house, all alone at about 5.30 P.M. At thattime, S/Shri D.C. Sharina and Desh Bandbu Marwah were already present.The Judgment-debtor then paid the amount in cash and he got executed thereceipt. The alleged receipt was then got attested by the two witnesses present there. Krishan Chander left the house of the Judgment-debtor with the money by about 5.40 P.M.

(6) The case of Krishan Chander is that he did write the document Ex. Jdw I/I giving the details of the amounts due from the Judgment-debtor and gave the same to the Judge who, in turn, handed it over to SaifulIslam, Advocate. According to him, thereafter neither the Judgment-debtor ever met him nor be went to his house as alleged. At no point of time,he was paid or be received any amount. The Judgment debtor in fact has converted the document into a receipt by committing forgery.

(7) In order to prove the receipt, the Judgment debtor appeared as his own witness and examined two attesting witnesses and a handwritingexpert, whereas Krishan Chander appeared as his own witness and produced Shri R.P. Singh handwriting expert.

(8) Now the receipt. The portions encircled red from B to B-1, D-l and E-l on the receipt JDW1/1 are admittedly in the handwriting of Krishan Chander. Portion marked B to B I mentions the details of the amount due court wise together with the total amount due in each of these courts. The portion encircled B-1 contains the signature of Krishan Chander with date,whereas the encircled portion D-l mentions the respective totals and The grand total of the amount due from the Judgment-debtor. At F-1 and G-1 are the signature of the two attesting witnesses. The dispute relate to the encircled portion C to C-l containing the words ''Received Cash".

(9) According to Krishan Chander, these words are not in his hand whereas the Judgment debtor insists that the words "Received cash" were written by Krishan Chander in his presence. Let me first resolve this controversy. For the present, I only intend to refer and weigh the evidence of the so-called handwriting experts. Then I will express my own opinion on the receipt Jdw 1/1.

(10) Mrs. R.K. Vij (JDW-3) is the handwriting expert for The Judgment-debtor. In her opinion, the disputed encircled writing marked C toC-l on the document Ex. Jdw I/I is the genuine writing executed by ShriKrishan Chander, the writer of the comparative writings under reference,including the other writing no the document Ex. Jdw I/I. In cross-examination, she however, failed to sticks to her opinion by admitting. "I have not examined whether the ink used in the disputed Writing C to C-l is the same as is used in the other admitted writings on the same document or not. The Instrument used i.e, the writing pen which is used in writing the disputed writing is different from the same used in the other admitted writing on the same document.It is correct that the ink used in the disputed writing encircled and marked C to C-l on Ex. Jwd 1/1 is different from the same used in the admitted writings, on the same document."

(11) Later on, she agreed with the observations made in para of the opinion marked "B" in Ex. DHW-1/8 filed by Shri R.P. Singh, the handwriting expert, produced by the decree-holder. para reads as under :- "A)An inter-se comparative examination of the ink and pen used in the disputed writing encircled in portion marked C to Cl in relation to other body writing of this document, clearly shows a total and complete difference in them. Although the whole writings made in ball-pen, but the ink of pen used in portion C to Cl has lighter tin and shade of blue colour, but that in the other portion.the colour of ink is of darker shade and tint of dark blue complexion.The writing point of pen used in portion C to C1 is more sharp from that used in the remaining body writing of this document Ex.JWD-1/1. This total difference in the writing instrument involved in between encircled writing mark C to Cl, from the other part of the body writing of this document Ex. Jwd 1/1 clearly shows that portion mark C to Cl is a latter addition, made separated from the rest of the writing."

The two vital admissions of Mrs R.K. Vij not only altogether wipe out her opinion but confirm the report of Shri Singh, that the disputed writing marked C to Cl on Ex. Jwd 1/1 differs from the comparative admitted and sample writings marked A-18.A-20 and S-1 to S-10 and is, therefore, not written in the hand writing of the same person. This evidence, by itself, is enough to prove that the so called receipt was a forged document, and infact nothing was paid to the decreeholder.

(12) The other infirmities which have come on record and throw doubt on the genuineness of this receipt are such which by themselves demolish the stand of the Judgment-debtor. The attesting witnesses have been proved tobe at the back and call of the Judgment debtor. According to the Judgment debtor Shri Raju Anand, Shri D.C. Sharma is his part-time Accountant whereas Shri Desh Bandhu Marwah is distantly related to him Their evidence as such is not worth reliance.

(13) There is no convincing explanation from the Judgment debtor asto why the signature of Krishan Chander was not obtained on the revenue stamp if it had been affixed and crossed by Krishan Chander himself.Relevant part of this evidence is in the cross-examination of the Judgment-debtor. It reads as under : - "revenue stamp was sent for after the execution of the receipt. I had sent my son to fetch a revenue stamp and it was affixed after the receipt had been executed. The revenue stamp was executed by Shri Krishan Chander. Sbri Krishan Chander had put a cross on the revenue stamp. I did not bother to have his signatures on the revenue stamp because be bad already signed in full.

(14) Shri Raju Anand is frank enough to admit that the decrees mentioned in JWD1/1 relate to arrears of rent and that he had never paid any amount to Shri Krishan Chander unless there was execution proceedings and attachment warrants issued, except the present amount of Rs. 72537 62P.admittedly, he is on litigation with the decreeholder for the last many years and being a shrewd man, he would have taken precautions not to be pay such a huge amount in cash without obtaining a proper receipt. There is no worthwhile explanation to 'this.

(15) Otherwise also it is just not possible for Krishan Chander, who had recently undergone an eye operation, to count such a huge amount in5 to 10 minutes and to execute the receipt.

(16) I have carefully examined the receipt, from the naked eye, it can safely be inferred that the words "received cash" encircled in portion C to C-l have been squeezed in by somebody in between the grand total and the signature of Krishan Chander in a different ink and handwriting This document is executed on an ordinary rough paper which normally would not have been used for preparing such like valuable documents.

(17) Besides that DW.2 Shri D.C.Sharma, the attesting witness who was produced to prove the execution of the receipt did not turn up for his cross-examination, Admittedly, he was the Accountant of the Judgment-debtor and was required to make the statement on the basis of the books of accounts. Though he brought the books of accounts but failed to come forward to subject himself to the cross-examination,

(18) All these facts taken together leave no doubt in my mind that the Judgment debtor has tried his level best to get out of the liability by forging the receipt but miserably failed to prove the same. I do not find any sub-stance in the appeal and the same is hereby dismissed in limini.