Madras High Court
A.Manickam vs R.Periyasamy on 14 July, 2021
AS (MD) NO.43 OF 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14 / 07 / 2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
AS (MD) NO.43 OF 2012
A.Manickam ... Appellant / Defendant
Vs.
1.R.Periyasamy
2.P.Meenakumari ... Respondents / Plaintiffs
PRAYER: First Appeal filed under Section 96 CPC against the decree and
judgment passed in O.S.No.4 of 2007 dated 02.06.2010 on the file of the
Principal District Judge, Tirunelveli.
For Appellant : Mr.T.Selvakumaran
For Respondents : Mr.B.Vijay Karthikeyan
JUDGMENT
The present First Appeal has been preferred against the
judgment and decree dated 02.06.2010 passed in O.S.No.4 of 2007 by the
learned Principal District Judge, Tirunelveli.
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AS (MD) NO.43 OF 2012
2.The defendant is the appellant. The respondents / plaintiffs
filed a Suit for recovery of money on the basis of two promissory notes
executed by the appellant / defendant. According to the respondents, the
appellant approached the second respondent and borrowed a sum of Rs.
5,00,000/- on 01.09.2004, to meet out his family expenses and agreed to
repay the same with interest @ Rs.1/- for Rs.100/- and also executed a
promissory note in favour of the second respondent.
3.Likewise, the appellant has approached the first respondent
and borrowed a sum of Rs.4,50,000/- on 12.08.2005 and executed a
promissory note in favour of the first respondent. He failed to repay the
principal as well as interest amount and therefore, the respondents have
issued a legal notice dated 30.12.2006 to the appellant.
4.The Trial Court, based on the pleadings, framed the following
issues:-
(1)Whether the two suit pronotes are true, valid
and supported by consideration?
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AS (MD) NO.43 OF 2012
(2)Whether the plaintiffs are entitled to the suit
amount?
(3)To what reliefs?”
5.Before the Trial Court, the plaintiffs have examined five
witnesses as P.W.1 to P.W.5 and marked nine documents as Exs.A1 to A9.
On the side of the defendant, two witnesses were examined as D.W.1 and
D.W.2 and marked two documents as Exs.B1 and B2.
6.The Trial Court, after considering the evidence, has come to
the conclusion that the execution of promissory notes and passing of
consideration has been validly and cogently proved by the plaintiffs and
that the appellant is bound to repay the amount borrowed. However, the
prayer for interest was rejected. Against which, the defendant has
preferred the present appeal on the ground that the Trial Court failed to
consider that the appellant herein never secured any loan on 01.09.2004
from the second plaintiff and never executed a promissory note on
01.09.2004 in her favour. The promissory note is a fabricated one and
created for the purpose of the Suit. The evidence of the wife of the
defendant, who is said to be an attesting witness has categorically stated
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AS (MD) NO.43 OF 2012
that she has not signed the alleged promissory note and Exs.B1 and B2
clearly states that the appellant has not signed the alleged promissory note.
7.The learned Trial Judge has failed to consider the report of the
Forensic Sciences Department which clearly stated that there is some
significant difference available in the signature. Instead of dismissing the
Suit on the basis of the report submitted by the expert regarding the
signature, the Trial Court has decreed the Suit on the basis of the evidence
of an attested witness P.W.3.
8.Now that, the point for consideration in the present appeal is
that whether the valid execution of the promissory note and passing of
consideration are proved or not?
9.From the perusal of the records placed before this Court, it is
seen that the respondents 1 and 2 / plaintiffs in the Suit have deposed as
P.W.1 and P.W.2. They have cogently deposed that the promissory notes
were executed by the plaintiffs on two occasions and that the money was
paid in cash with denomination to that effect. This evidence of P.W.1 and
P.W.2 could not be discredited during the cross examination. P.W.3 who is
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AS (MD) NO.43 OF 2012
a witness to the transaction would clearly depose that the appellant has
executed the promissory notes and received the consideration. D.W.1 in
his cross examination has deposed that the first respondent was running a
Finance business as well as chit among the Teachers. Since the appellant
did not join the chit run by the first respondent, the plaintiffs forged and
created the promissory notes during the year 2000 itself and declared that
they will take revenge against him. Due to the previous animosity, he has
filed the frivolous litigation. But the Trial Court has rightly discussed the
evidence as unreliable for nothing was pleaded in the written statement
about the previous enmity between the appellant and the first respondent.
Without such pleading, the evidence given by D.W.1 that the promissory
note is forged and fabricated on this count, cannot be accepted.
10.Likewise, the defendant has taken out an application to
compare the signatures found on the promissory notes with the public
documents. The evidence of D.W.2 – Thamarai Selvan, who is an expert
from the Forensic Sciences Department has reported that the signatures are
made by different persons and not of the same person. The Trial Court
discussed that Exs.B1 and B2 are reports sent by the Forensic Sciences
Department comparing the disputed signatures with the admitted
signatures and arrived at the conclusion that they were not signed by the
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AS (MD) NO.43 OF 2012
same person. The report was duly signed by one Kumar. In the cross
examination, D.W.2 has deposed that through the Video Spectral
Comparator Instrument and magnification of the photography, the
examination was done by him. However, the examination done through
Video Spectral Comparator Instrument was mentioned in his report as well
as the two times magnification of the signatures through photography. But,
the details about the photographer and signature of the photographer were
not found in the report. Therefore, the Trial Court has come to the
conclusion that Ex.B1 does not reflect the scientific method of
examination adopted by D.W.2 and therefore, it is found that it is not a
conclusive one. But, it is important to note that the appellant relied on the
sale deed executed in his favour. Even though he was having the original
of the sale deed, he has produced only a photostat copy. The examination
and the comparison of the signatures were made with the photocopy of the
signatures. The appellant has failed to produce the original document
wherein the admitted signature was found.
11.In the considered opinion of this Court, when the comparison
of the signatures were taken from the photocopies of the documents, it will
not lead to a conclusive proof. There can be manipulation in the
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AS (MD) NO.43 OF 2012
photocopies. The appellant / defendant must have produced the originals
of the admitted signatures found in the registered sale deed. Therefore, as
rightly found by the Trial Court, the evidence of the expert of the Forensic
Sciences Department cannot be construed as the conclusive proof that the
signatures were not of the same person. It is not proved beyond doubt that
the signature is forged or fabricated.
12.One more crucial aspect of this matter is that the appellant
has taken a specific denial that his wife has not affixed the signature in the
promissory notes. But, he has not examined his wife as a witness to prove
the fact. In that event, it shall be construed that the signature of the wife of
the appellant, who stood as an attesting witness, stands proved. Therefore,
the findings of the Trial Court that the promissory notes were validly
executed and valid consideration has been passed, does not require any
interference, as it is based on valid evidence. The appellant has failed to
disprove the valid execution and passing of consideration. On the other
hand, the respondents have proved the same.
13.In fine, the judgment and decree dated 02.06.2010 passed in
O.S.No.4 of 2007 by the learned Principal District Judge, Tirunelveli, is
confirmed and the First Appeal stands dismissed. No costs.
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AS (MD) NO.43 OF 2012
14 / 07 / 2021
Index : Yes/No
Internet : Yes/No
TK
To
The Principal District Judge
Tirunelveli.
https://www.mhc.tn.gov.in/judis/
AS (MD) NO.43 OF 2012
https://www.mhc.tn.gov.in/judis/
AS (MD) NO.43 OF 2012
M.GOVINDARAJ, J.
TK
AS (MD) NO.43 OF 2012
14 / 07 / 2021
https://www.mhc.tn.gov.in/judis/
