Karnataka High Court
Sri Muddegowda vs Sri Bhime Gowda on 25 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR SECOND APPEAL NO.115/2021 (MON)
BETWEEN:
SRI. MUDDEGOWDA,
SINCE DEAD BY HIS LR'S.
SMT. UMA M.T.,
W/O LATE MUDDEGOWDA,
AGED ABOUT 57 YEARS,
R/AT DWC 32/A, HUTHA COLONY,
BHADRAVATHI-577 245. ... APPELLANT
(BY SRI. PRAKASH M.H., ADVOCATE)
AND:
SRI. BHIME GOWDA,
S/O THIRUMALAIAH,
AGED ABOUT 58 YEARS,
R/AT ANTHARAGANGE VILLAGE AND POST,
BHADRAVATHI TALUK-577 245. ... RESPONDENT
(BY SRI. M.R.HEREMATHAD, ADVOCATE - ABSENT)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 23.03.2020
PASSED IN R.A.NO.73/2018 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC AT BHADRAVATHI, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 17.07.2018 PASSED IN O.S.NO.113/2011 ON THE FILE
OF THE PRL. CIVIL JUDGE AND JMFC AT BHADRAVATHI.
2
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.07.2025, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellant. The learned
counsel for the respondent did not choose to argue the matter
and hence taken as nil.
2. This second appeal is filed against the divergent
finding. At the first instance, the Trial Court dismissed the suit in
O.S.No.113/2011 and the same is reversed by the Appellate
Court in R.A.No.73/2018.
3. The factual matrix of the case of the
plaintiff/respondent before the Trial Court is that the defendant
had borrowed a sum of Rs.90,000/- from the plaintiff on
12.07.2010 and agreed to repay the same with interest at 12%
per annum on demand or to his order and executed an On
Demand Promissory Note with Consideration Receipt in favour of
the plaintiff on the same day. Inspite of the demand made by
the plaintiff, the defendant failed to repay the amount. During
the pendency of the suit, the defendant died and hence the wife
of the defendant was brought on record. In view of non
payment of the amount, the suit is filed.
4. The defendant appeared and filed the written
statement contending that the plaintiff was stranger to him. He
denied the borrowal of sum of Rs.90,000/- and execution of On
Demand Promissory Note with Consideration Receipt. It is his
contention that the plaintiff has filled the contents in the suit
document in collusion with persons who are inimical to him. The
plaintiff is a stranger to him and he has never entered into any
transaction with the plaintiff. It is the specific contention of the
defendant that one Smt. Shanthamma, wife of Sri
K.N.Boregowda @ Bettegowda, had been running chit business
in the year 1996 and she had obtained one blank signed On
Demand Promissory Note with Consideration Receipt and also
one blank signed Rs.10/- bond stamp paper from the defendant
and his wife Smt. Uma M.T. as witness. She had also filed a suit
in O.S.No.472/1999 against the defendant and Smt. Uma M.T.
on the basis of the said Rs.10/- blank signed stamp paper and
sought specific performance of contract in respect of the
defendant's property. The said Smt. Uma M.T. had seriously
contested the said suit and later she had not pressed the suit in
2010. The said suit was filed with an intention to make wrongful
gain and hence prayed the Court to dismiss the suit.
5. The Trial Court having considered the pleadings of
the parties, framed the following issues:
1. Whether the plaintiff proves that the defendant
has executed a DP Note with consideration
receipt on 12.07.2010 for Rs.90,000/- as
alleged?
2. Whether the defendant proves that the said DP
Note is not supported with any consideration?
3. Whether the plaintiff is entitled for the suit
claim?
4. What order or decree?
6. The plaintiff in order to prove his case examined
himself as P.W.1 and also examined two witnesses as P.W.2 and
P.W.3 and got marked the documents at Exs.P.1 and 2. On the
other hand, the defendant examined himself as D.W.1 and
examined two witnesses as D.W.2 and D.W.2 and got marked
the documents at Exs.D.1 to 14. The Trial Court having
considered the material available on record, taken note of that
no notice was issued before filing the suit and also not produced
any such notice before the Court. The Trial Court also taken
note of that P.W.1 has admitted that Ex.P.1 is the old pronote,
but again says that it is one year old. The Trial Court also taken
note that at the time of advancing the loan, one Jayamma was
present and she has introduced the defendant, but she was not
examined and for the first time in the cross-examination, he has
stated the purpose for which the money was lent. P.W.1 also
states that there are corrections in Ex.P.1 and also he has
admitted that the pronotes of 1990 would be ended in 2000 and
the pronotes of the year 2000, the year he shown as 2000. In
the cross-examination, he admitted that the very defendant
himself had signed the signature of his wife and hence comes to
the conclusion that if the transaction was real and genuine, the
plaintiff could have objected there itself when the defendant had
put his wife's signature. The Trial Court also taken note of the
Commissioner report, which clearly discloses that the same was
not written on the very day and opinion also extracted in
paragraph No.30 of the Trial Court's judgment and did not
choose to examine the Commissioner though filed the written
statement and also accepted the contention of the defendant
relying upon the document of Exs.D.1 to 14, which fortify the
case made out by the defendant and dismissed the suit.
7. Being aggrieved by the said judgment and decree,
an appeal is filed before the Appellate Court in R.A.No.73/2018.
The Appellate Court having reconsidered the material on record
and also the grounds which have been urged in the appeal
memo, formulated the point whether the impugned judgment
and decree is erroneous, illegal and called for interference, and
answered the same in the affirmative and reversed the finding of
the Trial Court in coming to the conclusion that this legal
presumption would arise to the negotiable instrument when the
document is proved or admitted as negotiable instrument. The
defendant has not denied the signature on Ex.P.1. A perusal of
contents of Ex.P.1 satisfies the ingredients of definition of On
Demand Promissory Note. As statutory presumption remains
until the contrary is proved, it is rebuttable in nature. Once the
defendant succeeds to prove non-existence of liability for issuing
such instrument to the plaintiff, the burden shifts upon the
plaintiff to prove the liability of the defendant and issuance of
such promissory note for discharging said liability. The defence
made out by the defendant is that the plaintiff has misused the
blank signed On Demand Promissory Note given by him to the
sister of the plaintiff, by name Shanthamma during chit business
in the year 1996. In order to substantiate the said defence, the
defendant has mainly relied upon the report of the Commissioner
submitted in the case and in addition to that, evidence of the
defendant, present defendant and evidence of one witness.
8. The Appellate Court also taken note of Ex.P.1 and
the report of the Commissioner and held that without marking
the Commissioner report as an exhibit, without the
Commissioner being examined in the case, the said
Commissioner report can be taken as evidence in the case. An
observation has been made that if the expert given his report,
he shall necessarily be examined to rely upon his report. But if
the expert has given his report as Court Commissioner, his
report can be admitted in evidence without examining him as
witness before the Court. In this case, even though the plaintiff
has made attempts to secure the Court Commissioner to
examine, he has not become successful in his effort to secure
the Commissioner before the Court to examine him in this case
with reference to the objections raised by him to his report.
Hence, the report of the expert as the Court Commissioner has
been rightly admittedly as evidence on record by the Trial Court
for appreciating the case on record. The duty of an expert
witness is to furnish the judge with the necessary scientific
criteria for testing the accuracy of the conclusions, so as to
enable the Judge to form his independent judgment by the
application of these criteria to the facts proved by the evidence
of the case. The quality of opinion would depend upon the
soundness of the reasons on which it is founded. But the Court
cannot afford to overlook the fact that science of identification of
handwriting is an improper and a frail one and compared to the
identification of fingerprints, Courts have, therefore, been wary
in placing implicit reliance on such opinion evidence and comes
to the conclusion that it is only a opinion evidence. It cannot be
considered as substantive evidence; it requires corroboration
with any direct evidence or circumstance evidence and hence
comes to the conclusion that relying upon the Commissioner
report is erroneous.
9. The First Appellate Court has also taken note of the
fact that in the cross-examination, D.W.3 has admitted that one
Shanthamma had filed O.S.No.10/2003 against her for recovery
of money and the said suit has been decreed. She has not
deposed anything in respect of the chit transaction by
Shanthamma by receiving signed blank pronote and stamp
paper and hence did not accept the evidence of D.W.3 and
comes to a conclusion that relying upon the documents produced
by the defendant by the Trial Court is erroneous. An observation
is made that the defendant has not produced the result of their
police complaint and mere filing of complaint itself is not enough
and comes to the conclusion that the Trial Court has not
appreciated the case of the plaintiff with reference to the special
rule of evidence applicable to the Negotiable Instruments Act
and not discussed anything in respect of presumption to the
Negotiable Instruments Act as per the provisions of Section 118
of the Negotiable Instruments Act and allowed the appeal and
set aside the judgment of the Trial Court and directed the
defendant to pay the amount with 12% interest.
10. Being aggrieved by the said judgment, the present
second appeal is filed before this Court.
11. This Court having considered the grounds which
have been urged in the second appeal, admitted the second
appeal on 05.02.2021 and framed the following substantial
questions of law:
a) Whether the First Appellate Court is justified in
interfering with the Issue No.1 in
O.S.No.113/2011 on the file of Principal Civil
Judge and JMFC, Bhadravathi?
b) Whether the First Appellate Court is justified in
considering the scope of Section 118(a) and
(b) of Negotiable Instruments Act, 1881?
12. The learned counsel for the appellant in his
arguments would vehemently contend that the suit was
dismissed by the Trial Court and the Appellate Court reversed
the same and while reversing the same, committed an error in
not properly appreciating the material on record, particularly the
Commissioner report. The Commissioner report is very clear
that the contents of the documents are in different time and not
at the time of issuance of alleged pronote. The learned counsel
would contend that no objection is filed to the Commissioner
report and also not examined the Commissioner before the Court
when the report goes against the plaintiff. The learned counsel
also contend that the suit was filed within six months and the
alleged pronote was of the year 2010 and also while filing this
suit, no notice was given. The learned counsel would contend
that it is categorically admitted that the document Ex.P.1 was
old one and the evidence of P.W.2 is contrary to the evidence of
P.W.1. The learned counsel would contend that the document is
altered and hence the very document is doubtful and when such
being the case, the question of presumption does not arise.
13. The learned counsel in support of his arguments
relied upon the judgment of this Court in the case of
N.NARAYANASWAMY v. MADANLAL reported in AIR 1982
KARNATAKA 227, wherein it is discussed with regard to blank
filled up by promises without promisor's consent was material
alteration. The learned counsel brought to the notice of this
Court the discussion made in paragraph Nos.18 and 19 regarding
material alterations. The learned counsel would contend that it
is the specific case of the appellant that the document was given
to the sister of the plaintiff when she was running the chit
business in year 1996 and also admitted regarding the material
alterations.
14. The learned counsel also relied upon the judgment of
the Apex Court in the case of RAJESH JAIN v. AJAY SINGH
reported in AIR 2023 SC 5018 and brought to the notice of this
Court the discussion made in paragraph No.43 regarding shifting
of burden. The learned counsel would contend that the
signature is admitted, but specific defence was taken that the
same was given to the sister of the plaintiff for chit business and
the witnesses who have been examined before the Court,
particularly D.W.3 deposes that the sister of the plaintiff was
running the chit and police complaint was also given against the
sister, since she had filed a suit for specific performance and the
same was withdrawn when the case was contested. All these
factors were not taken note of by the First Appellate Court while
reversing the judgment of the Trial Court. Hence, this Court has
to reverse the finding of the First Appellate Court.
15. The learned counsel for the respondent did not
choose to argue the matter inspite of an opportunity was given.
On 25.06.2025, when the learned counsel for the respondent
was absent, this Court made it clear that if the learned counsel
for the respondent does not appear on the next date of hearing,
the matter will be heard in his absence. Accordingly, when he
was not present on the next date of hearing on 10.07.2025,
heard the matter in the absence of the learned counsel for the
respondent.
16. Having considered the grounds which have been
urged and also the substantial questions of law framed by this
Court, this Court has to re-analyze the material available on
record, since there is a divergent finding. The first substantial
question of law is with regard to reversing of issue No.1 i.e.,
whether the First Appellate Court is justified in reversing issue
No.1, that is, whether the plaintiff proves that the defendant has
executed a DP note with consideration receipt on 12.07.2010 for
Rs.90,000/- as alleged? The second substantial question of law
is whether the First Appellate Court is justified in considering the
scope of Section 118(a) and (b) of Negotiable Instruments Act,
1881 i.e., presumption with regard to the issuance of
consideration receipt.
17. It is the case of the plaintiff that the defendant
borrowed a sum of Rs.90,000/- by executing a document of
Ex.P.1 i.e., On Demand Pronote with Consideration Receipt and
also agreed to pay the interest at 12% per annum. The
Commissioner report is also obtained before the Trial Court. The
Commissioner report in part II is with regard to physical and
chemical examination of inks of the body writings, defendant's,
witnesses' and scribe's signatures on disputed document Ex.P.1.
Ink of the body writings (contents), defendant's signatures,
witnesses' signatures and scribe's signatures in Ex.P.1. On
physical examination of the above inks show that signatures of
defendant, witness No.1 and witnesses No.2 are written in blue
inks. Body writings (contents) on the document and signatures
of scribe are written in black inks. Inks of above all the
signatures and writings under consideration are ball-point inks.
Inks of the body writings and scribe's signatures are not
compatible for comparison for chemical test for relative aging
with the defendant's signatures Ex.P.1(a), P1(b) and signatures
of witness Nos.1 and 2 due to non-similarity. Inks of body
writings and signatures of scribe are in black ball-point ink,
hence compatible for mutual comparison of relative aging. The
chemical examination is that the ball point inks of defendant's
signatures Exs.P1(a) and P1(b), witnesses' signatures Ex.P.1(e)
and P1(f), scribe's signatures Ex.P.1(c) and Ex.P.1(d) and body
writing (contents) are tested for solubility or extraction for
ascertaining their relative age on paper. These writings are
separately tested by using alcohol and the pyridine as solvents.
Firstly alcohol was used as a solvent, at points marked 'A' on the
small parts of the writings.
18. Having considered the alcohol test and secondly the
pyridine test, comes to the conclusion that the physical
examination of writing strokes, condition of document,
folds/creases and stain tinge marks on Ex.P.1 show that body
writings and signature of witness No.2 were written after various
folds/creases and stain marks developed on the document of
Ex.P.1 whereas signatures of defendant and witness No.1 on the
document do not show that they were written on physically
deteriorated and damaged document. In short, defendant's
signature Ex.P.1(a) and Ex.P.1(b) were executed on fresh
document without folds/creases and stain tinge marks whereas
body writings and signature of witness No.2 were written later
on the folded/creased or stained document. That the chemical
examination of the inks on documents Ex.P.1 show that the
relative age of the inks of signatures of the defendant and
witness No.1 i.e., Ex.P.1(a), Ex.P.1(b) and Ex.P.1(e) on paper to
be more than the ink of the signature of witness No.2 Ex.P.1(f).
The inks of body writings (contents) and scribe's signatures on
paper to be relatively of similar age.
19. This report was taken note of by the Trial Court and
comes to the conclusion that the aging of the writings are not at
the same time. The body contents are later staged and signature
of Ex.P.1(e), 1(b) and 1(a) are old one and subsequent signature
of the witness No.2 i.e., Ex.P.1(f) are later one and hence comes
to the conclusion that the Commissioner report supports the
case of the defendant's defence and also taken note of the
evidence which have been placed before the Trial Court.
20. It is important to note that P.W.1 in the cross-
examination categorically admits that the document Ex.P.1 is old
one. But again says that it was one year old and also
categorically admits that the advocate was got introduced by his
sister Shanthamma. With regard to the source of income is
concerned, he says that he was having account in the bank, but
no balance in his bank account. A suggestion was made that his
sister Shanthamma was running chit and he did not categorically
deny that she was not running any chit, but only says that he
was not aware of the same. A suggestion was made that his
sister had obtained pronote as well as blank stamp paper and he
only says that he is not aware of the same. It is his specific
defence that the said pronote was given in the year 1996, but he
admits that it was old one. It is also his evidence that one
Jayamma got introduced the defendant to him and at the time of
demand of loan, she was very much present and no one was
there at that time and did not examine her, since the defendant
was got introduced through Jayamma. It is the case of the
plaintiff that the defendant borrowed the money to meet his
family difficulties and again says that for the purpose of children
education. He admits that for the first time he is deposing that
the amount was borrowed for the purpose of education of the
children. Hence, it is clear that the plaintiff is not sure why the
defendant was in need of money and for the first time,
introduced the theory of borrowing the money for the education
of the children. It is important to note that P.W.1 categorically
admits that his sister Shanthamma only got introduced the
advocate. It is also important to note that it is the specific case
of the plaintiff that at the time of lending the money, witness
Gangadhar was also present and those two witnesses have been
examined before the Court i.e., witness as well as the scribe of
the document.
21. P.W.2 is the scribe and he identifies the signature
and he also categorically admits that Ex.P.1 is old document and
the admission on the part of P.W.2 is also very clear that the
same was old document. But he claims that when the document
was given to him, he used to write the same and he cannot tell
whether Ex.P.1 was old one or new one. He volunteers that it
may be of the year of 1990 and this evidence was also not taken
note of by the Appellate Court when the witness P.W.2
volunteers that it was the document of the decade of 1990. But,
the present document, according to the plaintiff was executed in
the year 2010. It is suggested that 1990 decade documents are
now not available and the same was denied. But he says that
the 1990 documents were also used and obtained his assistance
for documentation. He also admits that his signature and
remaining witnesses signatures inks are different. The very
scribe categorically deposes regarding nature of the document.
22. P.W.3 is the witness to the said document and when
a suggestion was made to P.W.3 that the document Ex.P.1 was
old one, he gives an explanation that because of folding of the
same, appears to be as old. This evidence is contrary to the
evidence of P.W.1 and P.W.2 and there is an improvement in the
evidence of P.W.3 regarding document was old one. He admits
that in Ex.P.1, it is mentioned as 1990 and when a suggestion
was made that the said document was old one prior to 2000, the
witness says that he cannot say the same, but only says that his
signature is available.
23. The other witnesses are D.W.1 to D.W.3. D.W.1
categorically denied the very execution of the document and he
says that he gave the document when the chit was taken, but no
document is produced for having subscribed the chit and the
sister of the plaintiff Shanthamma is still alive and relies upon
the material regarding Shanthamma had filed a case in
O.S.No.479/1999. He also admits that in that case he gave the
deposition. He admits that he did not mention the date and in
whose presence the document was given to Shanthamma. He
also admits that he gave the complaint to the police against
Shanthamma in 2003 through his wife and no notice was given
prior to giving of such complaint. He claims that after filing of
suit in O.S.No.479/1999, he has demanded to return the pronote
and in the evidence he deposed the same. He admits that
Shanthamma withdrew the said suit. It is important to note that
when the very Shanthamma had filed the suit, the same was
withdrawn and the same was taken note of by the Trial Court.
24. The other witness D.W.2 is the wife of the defendant.
In the cross-examination, she admits for having given the
documents to Shanthamma and not obtained any endorsement.
A suggestion made to her that her husband availed the loan was
denied.
25. The other witness is Smt. Shivamma D.W.3, who
claims that the said Shanthamma was running the chit and while
running the chit she used to take signatures on the blank papers
and also used to take pronote. D.W.3 categorically says that she
was a subscriber of the chit from 1990 with Shanthamma and
also gives the details of taking of the chit in 1996 and so also in
1992 and 1994. It is also her evidence that the said
Shanthamma filed a case against her through her husband and
the same was dismissed. In the said case, she did not file any
written statement and also she was not examined. D.W.3
admits that she had filed a criminal case against Shanthamma
and Bettegowda and the wife of the defendant deposed on her
behalf. The wife of the defendant also filed a criminal case and
the same is elicited from the mouth of D.W.3.
26. Having perused all these materials available on
record and particularly taking note of the document of Ex.P.1,
the reason for availing the loan is mentioned as household
contingences. But for the first time before the Court deposed
that the loan was advanced to educate the children of the
defendant. D.W.2 categorically admits that this document is of
the year 1990 and the case of the defendant also that chit was
run by Shanthamma and in the year 1996, the said document
was given. The plaintiff admits that his sister Shanthamma only
got introduced the lawyer. Apart from that, the document of
exhibit 'D' series clearly discloses that earlier suit was filed by
Shanthamma against the defendant in O.S.No.472/1999 and
also the very suit, which was filed for the relief of specific
performance was withdrawn and what made to withdraw the
suit, there is no explanation. The very contention is that the
sale agreement was created based on the earlier obtained blank
stamp paper and it was created for the purpose of filing of the
suit. The written statement in O.S.No.472/1999 is also placed
on record as Ex.D.3. The affidavit filed by Shanthamma is
marked as Ex.D.4. The cross-examination and also the
deposition of Muddegowda is marked as Ex.D.5. Ex.D.6 is the
sale agreement, Ex.D.7 is the memo not pressing the case.
Ex.D.8 is the objections filed to the memo. Ex.D.9 is the
complaint filed by defendant No.2 Smt. Uma. FIR is marked as
Ex.D.10. All these documents clearly discloses that there was a
dispute between the parties from 1999 onwards when the suit
was filed for specific performance by the sister of the present
plaintiff and the document of promissory note is of the year
2010.
27. It is important to note that D.W.2 categorically
admits that the said pronote is of the year 1990, but what made
to obtain the document after 20 years in 2010 by using the said
document of 1990, there is no proper explanation on the part of
the plaintiff. It is important to note that this Court already
discussed with regard to the age of the document and the
contents of the disputed document of Ex.P.1. The Commissioner
report is very clear that except the signature on the disputed
document by the defendant and witness No.1, other writings and
contents of the document are later entries and the same was
taken note of by the Trial Court. The Trial Court taken note of
the Commissioner report, as well as exhibit 'D' series
documents, which have been marked by the defendant. No
doubt, with regard to the chit transaction is concerned, though
witnesses D.W.2 and D.W.3 have been examined, no document
is placed on record with regard to chit transaction is concerned.
The very admission of P.W.1 and P.W.2 that the subject matter
of the document of Ex.P.1 is old document and insertion was
made, ought to have been taken note of and the very defence of
the defendant supports his defence in terms of the report of the
Commissioner and though the same is not marked, but the same
becomes the part of the records. It is also important to note
that when the report goes against the plaintiff, the plaintiff ought
to have examined the Commissioner by summoning the
Commissioner, but not done the same and the same is also
observed by the Trial Court while dismissing the suit. The Trial
Court in detail taken note of the material available on record
taking note of the ink used in the said document.
28. The learned counsel for the appellant relied upon the
judgment of this Court in the case of N.Narayanaswamy
(supra) regarding the blank filled up by promises without
promisor's consent was a material alteration. In the case on
hand, in view of the Commissioner report, it is very clear that
the contents of the documents are subsequent time and later on
the same is noted including the signature of the scribe. In the
said judgment, the High Court in detail discussed in paragraph
No.19 that if any material alteration in the pronote effected by
the promisee when the document was in his custody without the
consent of the promisor and as such under Section 87 of the
Negotiable Instruments Act, the promissory note becomes void.
In the case on hand, in view of the Commissioner's report, the
document becomes void.
29. The learned counsel also relied upon the judgment of
the Apex Court in the case of Rajesh Jain (supra), wherein in
paragraph Nos.43 and 44 in detail discussed with regard to the
burden of proving and also discussed with regard to the
presumption is concerned. It is open for him to also rely upon
presumptions of fact, for instance those mentioned in Section
114 and other Sections of the Evidence Act. The burden of proof
may shift by presumptions of law or fact. No doubt, the
Appellate Court invoked the presumptions under Section 118 of
the Negotiable Instruments Act, but it is very clear in the
judgment of the Apex Court that in that case, the Court was
dealing with the presumptive clause in Section 118 of the
Negotiable Instruments Act, since the nature of the presumptive
clauses in Section 118 and 139 is the same, the analogy can be
extended and applied in the context of Section 139 as well. The
onus having now shifted to the complainant, he will be obliged to
prove the existence of a debt/liability as a matter of fact and his
failure to prove would result in dismissal of his complaint.
30. Having taken note of this principle as well as
invoking of Section 118 by the Appellate Court, the
Commissioner report is very clear with regard to the ink, which
was used for filling up of document, which is later one and not at
the time of aging of document, which was allegedly executed by
the defendant and witness No.1 and when there are differences
and scientifically the same was examined, the question of
invoking the presumption does not arise when the very
document itself is doubtful and the very execution of document
on the particular date is doubtful. The Appellate Court
committed an error in invoking the presumption. Hence, I
answer both the substantial questions of law in the negative that
the First Appellate Court was not justified in interfering with
issue No.1 in reversing the finding of the Trial court and also
invoking of scope of Section 118(a) and (b) of Negotiable
Instruments Act is erroneous, when there are lot of anomalies
available on record and mere document is in existence is not
enough to grant the relief.
31. The very admission of D.W.1 and D.W.2 that the
document is old and particularly when the admission was given
by D.W.2 that the document would have been of 1990 and what
made to make use of the said document in 2010, there is no any
explanation. The witnesses who deposed on behalf of the
defendant also categorically deposed that Shanthamma was
running the chit business and also a specific defence was taken
that she had taken pronote as well as blank stamp paper and
when the suit was also filed for the relief of specific performance
by Shanthamma based on the stamp paper which was collected,
what made her to withdraw the said suit is also not explained.
Under these circumstances, it is a doubtful transaction. The
Appellate Court failed to consider all these materials on record
and committed an error invoking presumptions as well as
reversing the finding of the Trial Court and hence I answer the
substantial questions of law accordingly.
32. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment of the First Appellate
Court is set aside. Consequently, the suit
dismissed by the Trial Court is confirmed by
restoring the judgment of the Trial Court.
Sd/-
(H.P. SANDESH)
JUDGE
MD
