Madhya Pradesh High Court
Mahendra Kumar Jain vs Shankarlal Sharma on 15 May, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:10919
1 CR-67-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 15th OF MAY, 2025
CIVIL REVISION No. 67 of 2017
MAHENDRA KUMAR JAIN
Versus
SHANKARLAL SHARMA
Appearance:
Mr. Sunil Kumar Jain - Advocate for the petitioner.
None for the respondent.
ORDER
The petitioner/defendant has filed this civil revision challenging the
judgment and decree dated 13.04.2017 passed by First Additional District
Judge, Shivpuri in Civil Appeal No.500065/2015, whereby learned
Appellate Court has reversed the judgment dated 15.09.2015 passed by the
First Civil Judge, Class-II, Shivpuri, in Civil Suit No.2B/2015 and has
decreed the suit for recovery of an amount of Rs.20,000/- along with 6 %
interest.
2. For convenience, the parties are referred as plaintiff and defendant
as per their respective status in the civil suit.
3 . The plaintiff filed a suit for recovery of an amount of Rs.20,000/-
along with interest @ 2% per month from the defendant, inter alia, on the
ground that the defendant has borrowed a sum of Rs.20,000/- from him and
has executed a promissory note as also a receipt, dated 25.07.2012. It is
NEUTRAL CITATION NO. 2025:MPHC-GWL:10919
2 CR-67-2017
pleaded that defendant agreed to repay the amount, on demand together with
interest @ 2 % per month. However, the defendant did not repay the amount
despite repeated demands. The plaintiff thereafter served a notice to the
defendant demanding the amount from him. However, defendant refused to
receive the notice also. With the aforesaid pleadings, the suit for recovery as
aforesaid was filed.
4 . The defendant filed his written statement denying the plaint
averments. He specifically denied the execution of the promissory note as
also the receipt dated 25.07.2012. The defendant also alleged tampering in
the date of the promissory note as well as the receipt, inasmuch as year 2002
was changed to year 2012. The defendant further pleaded that attesting
witnesses to the promissory note were not known to him and the name of
witness - Prem Prakash was fraudulently added later on.
5 . In support of his claim, the plaintiff examined himself and also
examined Kaptan Singh and Prem Narayan Sharma, who were the attesting
witnesses to the receipt and have also seen execution of promissory note.
Besides other documents, the promissory note was marked as Ex. P-1 while
receipt acknowledging the amount was marked as Ex. P-2. On the other
hand, defendant examined himself in support of his case. The learned Trial
Court after taking evidence of both the parties dismissed the suit holding that
the presence of witnesses at the time of execution of the promissory
note/receipt is doubtful. It is also held that the date on the promissory
note/receipt was tampered inasmuch as the year 2002 was changed to 2012.
The learned Trial Court further held that the service of notice to the
NEUTRAL CITATION NO. 2025:MPHC-GWL:10919
3 CR-67-2017
defendant is also not established. The learned Trial Court also took note of
the discrepancy in the statement of plaintiff and his witnesses with regard to
the person who wrote the promissory note/receipt.
6 . The plaintiff being aggrieved challenged the judgment and decree
passed by learned Trial Court by filing first appeal. The learned Appellate
Court has decreed the suit and has passed the decree for recovery of amount
from the defendant. Challenging the judgment and decree passed by the
Appellate Court, the applicant/defendant is before this Court in the instant
revision.
7 . The learned counsel for applicant submitted that the Appellate
Court grossly erred in reversing the well reasoned judgment passed by Trial
Court. He submitted that the Appellate Court erred in fastening the burden of
proving that documents in question does not bear his signature on the
defendant whereas it is the burden of plaintiff to prove otherwise. He referred
to statement of plaintiff and his witnesses and submitted that there are
serious discrepancies in their statements on important facts which have been
ignored by learned Appellate Court. He thus submitted that the judgment and
decree passed by Appellate Court is liable to be set aside and the one passed
by Trial Court is liable to be restored.
8. None appeared for the respondents.
9 . Considered the arguments of learned counsel for applicant and
perused the records.
10. The learned Appellate Court has held that the promissory note is
not admissible in the evidence for want of adequate stamp duty. However,
NEUTRAL CITATION NO. 2025:MPHC-GWL:10919
4 CR-67-2017
the receipt has been held to be admissible in evidence. It is to be noted that
the receipt contents the factum of execution of promissory note by defendant
in favour of plaintiff. Thus, if the promissory note is held inadmissible in
evidence, the transaction could not have been established solely based upon
the receipt. The finding of the learned Appellate Court is that the transaction
of loan can be proved by way of oral evidence also. In this regard, it is worth
noting that the plaintiff has come up with the specific case based upon
promissory note. Therefore, if the promissory note is held inadmissible, the
transaction could not have been held proved based upon oral evidence only.
The finding of learned Appellate Court in this regard is, therefore,
unsustainable in law. Further, since the receipt refers to execution of
the promissory note dated 25.07.2012, and if the promissory note is held to
be inadmissible, the receipt alone cannot be relied upon to establish the loan
transaction.
11. The defendant has taken a specific stand that he has not executed
the promissory note as also the receipt. He has denied his signature on
the promissory note. The learned Appellate Court has drawn an adverse
inference against the defendant, observing that despite permission by the
Court, he failed to examine the hand writing expert to prove that the
document does not bear his signature. The aforesaid finding of learned
Appellate Court is also not acceptable inasmuch as it was the plaintiff's
primary burden to establish that the documents in question were executed by
the defendant and bears his signature. When the execution was specifically
denied by the defendant, it is the plaintiff who ought to have examined the
NEUTRAL CITATION NO. 2025:MPHC-GWL:10919
5 CR-67-2017
hand writing expert to establish execution of document by defendant. Thus,
the Appellate Court wrongly shifted the burden of proof on the defendant.
12. The learned Trial Court in its judgment appreciated the evidence
of the attesting witnesses and has held that their presence at the time of
execution of the documents is doubtful. It is to be noted that the plaintiff, in
para - 10 of his cross-examination, twice stated that the documents in
question were written by his son Arvind Sharma. On the other hand, the
witness - Kaptan Singh has stated in para 8 of his cross-examination that
both the documents were written by plaintiff - Shankar Lal Sharma. The
other attesting witness - Prem Prakash Sharma has stated in para - 6 of his
cross-examination that receipt (Ex. P-2) alone was written by Arvind Sharma
before him and apart from Ex. P-2, no other document was executed in his
presence. Thus, he has not seen the execution of promissory note. He is cited
as witness to prove the execution of promissory note who did not see
execution of the same. The learned Appellate Court failed to advert to this
material inconsistency in the statement of aforesaid witnesses. For
establishing execution of an instrument, the statement of attesting witnesses
are most important inasmuch as the purpose of attesting a document is to
prove its execution. In the instant case, the attesting witnesses could not
prove the execution of promissory note/receipt.
13. Further, in the promissory note/receipt, the address of defendant is
mentioned as village Sirsod, District Shivpuri. The defendant has taken a
specific stand that he is not the resident of village Sirsod and is residing at
Shivpuri. On 04.03.2015, the witness- Kaptan Singh stated in para 5 of his
NEUTRAL CITATION NO. 2025:MPHC-GWL:10919
6 CR-67-2017
cross-examination that he met defendant only once about one and half years
back whereas the promissory note/receipt was executed in July' 2012. In this
regard, the learned Trial Court, after appreciating the available evidence,
recorded a finding that defendant is not residing at village Sirsod for last 20
years. The burden was, therefore, on the plaintiff to have established that the
defendant is residing at village Sirsod. He failed to establish this important
fact which the learned Appellate Court ignored in his judgment.
1 4 . With regard to tampering in year of execution of promissory
note/receipt, learned Trial Court, after appreciating available evidence,
recorded a specific finding that both the documents initially bear the year
2002 which has been changed to 2012. Comparing the Hindi digit '1'
mentioned at different places in the promissory note as also in receipt, the
learned Trial Court found it established that the year of execution has been
changed from 2002 to 2012. The learned Appellate Court reversed this
finding of Trial Court only be observing that the Trial Court committed an
error in recording this finding without assigning any reason for reversing
well reasoned finding of Trial Court.
15. Another glaring fact which is evident from receipt (Ex. P/2) is that
the name of third attesting witness i.e. Prem Narayan Kushwaha is
apparently added subsequently inasmuch as the same is written in a different
hand writing and with a different pen. The plaintiff has failed to explain this
difference in hand writing and ink. This also makes the execution of
promissory note/receipt suspicious.
16. Considering the totality of the circumstances, view taken by the
NEUTRAL CITATION NO. 2025:MPHC-GWL:10919
7 CR-67-2017
Trial Court after appreciation of the evidence, was a plausible view and
learned Appellate Court erred in interfering with those findings by
substituting its own view, which is not permissible in exercise of powers
under Section 96 of CPC. Accordingly, the impugned judgment and decree
dated 13.04.2017 passed by First Additional District Judge, Shivpuri in Civil
Appeal No.500065/2015 is set aside and one passed by learned Trial Court,
dated 15.09.2015, in Civil Suit No.2-B of 2015 is restored.
17. The appeal is allowed with the aforesaid.
(ASHISH SHROTI)
JUDGE
bj/-
