[Cites 2, Cited by 0]
Madras High Court
G.Madheshkumar vs P.K.Velumani on 9 January, 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on : 01.12.2025 Order pronounced on : 09.01.2026
CORAM
THE HONOURABLE MR JUSTICE P.B. BALAJI
CRP.No.1936 of 2024
& CMP.No.10232 of 2024
G.Madheshkumar ... Petitioner
Vs.
P.K.Velumani ... Respondent
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, to set aside the order and decreetal order made in I.A.No.3 of 2023 in
A.S.No.13 of 2023 dated 03.01.2024 on the file of the II Additional District
Judge, Tiruchengode.
For Petitioner : Mr.A.K.Sriram
Senior Counsel for Mr.V.Balamurugane
For Respondent : Mr.N.Manoharan
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ORDER
The appellant, who was the defendant in the suit for recovery of
money, having failed in his attempt to seek comparison of the disputed
signature in a cheque, with his admitted signature in another cheque, has
come by way of this revision.
2.I have heard Mr.A.K.Sriram, learned Senior Counsel for
Mr.V.Balamurugane, learned counsel for the petitioner and
Mr.N.Manoharan, learned counsel for the respondent.
3.Mr.A.K.Sriram, learned Senior Counsel would submit that the suit
was filed based on a cheque issued by the defendant, in favour of the
plaintiff. Taking me through the pleadings, learned Senior Counsel would
contend that the defendant had categorically denied the borrowing from the
plaintiff and had asserted that the cheque issued for insurance
plans/premium was misused and based on the same, the suit claim has been
fabricated. He would further submit that before the First Appellate Court, an
application was taken out to have the disputed signature of the appellant
compared with the admitted signature in another cheque and inviting my
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attention to the dates of the two cheqes, the learned Senior Counsel would
submit that the question of documents not being contemporaneous also does
not arise, since the cheques were issued within a few months apart, the
admitted cheque is dated 20.11.2013 and the disputed cheque is dated
04.10.2013. The learned Senior Counsel would therefore state that
absolutely no prejudice would be caused to the respondent/plaintiff, if the
comparison of the disputed signature is made by an expert, as requested by
the revision petitioner.
4.The learned Senior Counsel would also state that the First Appellate
Court has not understood the case of the revision petitioner and has
erroneously held that since the revision petitioner has admitted the signature
in the cheque dated 20.11.2013, there was no necessity for the revision
petitioner to seek comparison, failing to understand that if the disputed
cheque is compared and it is found that the signature is not that of the
revision petitioner, then it goes to the root of the suit claim itself, since the
cheque dated 20.11.2013, according to the plaintiff, is a cheque issued
towards repayment of the borrowing alone and the dispute regarding the
cheque dated 04.10.2013 would throw light on the question of borrowing
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itself.
5.The learned Senior Counsel would further submit that the cheque
dated 04.10.2013 was, according to the revision petitioner, issued by the
respondent/plaintiff as an open cheque and the respondent himself had
presented the same, by forging the signature of the revision petitioner on the
reverse side of the said cheque and taken the money from his account. It is
only in these circumstances that the application for comparison was taken
out and therefore, the learned Senior Counsel prays for the revision being
allowed, setting aside the order passed by the First Appellate Court.
6.Per contra, Mr.N.Manoharan, learned counsel appearing for the
respondent would submit that the petitioner has admitted the signature in the
cheque dated 20.11.2013 and the suit claim is based only on the said cheque.
In this regard, he would invite my attention to the judgment of the trial
Court, which has discussed the relevant admissions of the revision petitioner
in cross examination. He would also state that the initial burden, which was
on the respondent's shoulder has been discharged and thereafter, it was for
the revision petitioner to adduce satisfactory evidence to establish that the
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cheque was not supported by consideration and consequently, the
respondent was not entitled to maintain the suit claim. With regard to burden
of proof, the learned counsel for the respondent has relied on the decision of
the Hon'ble Supreme Court in Thiruvengadam Pillai Vs. Navaneethammal
and another, reported in (2008) 4 SCC 530.
7.Mr.N.Manoharan, learned Senior Counsel would further state that
the petitioner never chose to take out the application to compare the disputed
signature in the cheque dated 04.10.2013, pending the suit and there are
absolutely no reasons assigned as to why the application has been taken out
belatedly, pending the First Appeal. It is also the argument of
Mr.N.Manoharan that by seeking an expert opinion with regard to the
disputed signature in the cheque dated 04.10.2013, the revision petitioner is
virtually attempting to lead additional evidence in the appeal, which would
require the fulfillment of the mandate of Order XLI Rule 27 of CPC.
Relying on the decision of this Court in CRP.No.3486 of 2024 in the case of
Kandasamy and others Vs. K.Ramachandran and another, learned counsel
for the respondent would submit that it is not permissible for the petitioner
to seek adducing additional evidence, without an application being taken out
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under Order XLI Rule 27 of CPC.
8.The learned counsel for the respondent would also invite my
attention to the memorandum of grounds of First Appeal, where also, the
petitioner admits the issuance of cheque dated 20.11.2013 and would draw
my attention to ground No.10 specifically, where also, the case of the
petitioner is clearly spelt out. He would therefore state that the order of the
First Appellate Court, dismissing the application for an expert opinion does
not call for interference in revision.
9.I have carefully considered the submissions advanced by the learned
Senior Counsel for the petitioner and the learned counsel for the respondent.
I have also gone through the records and the decisions on which reliance is
placed on by the learned counsel for the respondent.
10.The plaintiff filed the suit for recovery of a sum of Rs.8,48,000/-,
together with subsequent interest and costs. The cause of action for the suit
is that the defendant borrowed Rs.8 lakhs from the plaintiff on 04.10.2013
and towards repayment, the petitioner had issued a post dated cheque dated
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20.11.2013. It is the case of the revision petitioner that the petitioner is not
liable to pay any monies, since there was no borrowing in the first place.
The version of the revision petitioner is that on 04.10.2013, the
respondent/plaintiff issued an open cheque for Rs.8 lakhs and forging the
signature of the revision petitioner on the reverse side of the cheque, the
respondent has withdrawn the money himself and therefore, there is no
cause for filing the suit in the first place. The parties went to trial and after
leading oral and documentary evidence, the trial Court decreed the suit.
Challenging the judgment and decree of the trial Court, the revision
petitioner has filed A.S.No.13 of 2023. In the pending First Appeal, the
petitioner took out I.A.No.3 of 2023 under Rule 75 of the Civil Rules of
Practice to send for the original cheque dated 04.10.2013 from the Bank to
have it compared by the expert, with his admitted signature in the cheque
dated 20.11.2013. The application was resisted by the respondent and the
First Appellate Court dismissed the application.
11.It is the contention of Mr.A.K.Sriram, learned Senior Counsel that
the First Appellate Court has misconstrued the request of the revision
petitioner, which was only to attack the original alleged borrowing of Rs.8
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lakhs. According to the learned Senior Counsel, if the original borrowing is
disproved, then the case of the plaintiff that the cheque dated 20.11.2013
was issued towards repayment of the alleged borrowing would consequently
fall to the ground.
12.As already seen, even in the written statement, the defendant has
denied his signature in the cheque dated 04.10.2013. However, he has
admitted his signature in the cheque dated 20.11.2013, which is the
foundation on which the suit has been instituted. During trial, the defendant
has admitted to the cheque dated 20.11.2013. In fact, even at the stage of
exchange of pre-suit notices, the defendant had requested for copy of the
cheque, in respect of which, the claim is made by the respondent and the
same was also furnished even before the filing of the suit itself. In such
circumstances, when the plaintiff had come to Court with a specific case that
payment of money is due under the cheque dated 20.11.2013 and the
petitioner has also taken a specific defence that he has not borrowed any
money from the respondent/plaintiff and that after inspecting the xerox copy
of the alleged cheque dated 20.11.2013, he has found that the signature and
recitals in the said cheque are not him and therefore, the alleged cheque is
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forged and fabricated.
13.Thus, it is seen that before the trial Court, the defendant had even
disputed the genuineness of the cheque dated 20.11.2013. In such
circumstances, when the plaintiff was able to extract admissions in his
favour that the said cheque dated 20.11.2013 was only issued by the revision
petitioner, then the burden of proof would stand automatically shifted to the
shoulder of the defendant.
14.The Hon'ble Supreme Court, in Thiruvengadam Pillai's case, cited
supra, held that when an unregistered document is put forth by the plaintiff,
the plaintiff will have to prove the document first and as the defendant
cannot be called upon to prove the negative. However, in the present case,
the plaintiff has been able to successfully discharge the initial burden upon
the plaintiff with regard to the cheque dated 20.11.2013.
15.As already discussed, though the defendant has denied even the
genuineness of the cheque dated 20.11.2013. However, in cross
examination, the plaintiff has been able to secure an admission that the said
cheque dated 20.11.2013 was, in fact, only issued by the petitioner. In such
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circumstances, the burden of proof stood stand shifted to the defendant to
establish that the document was forged or fabricated as pleaded in the
written statement. Having taken such a plea in the written statement, the
defendant ought to have taken out necessary application even before the trial
Court. No steps have been taken by the defendant to have the signature of
the defendant compared as that has been attempted before the First
Appellate Court. It is only in this context that the learned counsel for the
respondent has stated that the application is also belated and on this ground
as well, it is liable to be dismissed. I find force in the said submissions of
Mr.N.Manoharan, learned counsel for the respondent.
16.Coming to the argument of Mr.N.Manoharan that the very request
for comparison would amount to letting in additional evidence and
therefore, without filing an application under Order XLI Rule 27 of CPC,
the application for sending for the cheque dated 04.10.2013 being not
maintainable, he has relied on the decision of this Court in Kandasamy's
case, cited supra. That was a case where pending an appeal, challenging a
decree for recovery of possession, the defendant sought for appointment of a
fresh Advocate Commissioner. In that backdrop, this Court held that an
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application under Order XXVI Rule 9 of CPC for appointment of an
Advocate Commissioner before the First Appellate Court not being
accompanied by a petition under Order XLI Rule 27 of CPC is also not
maintainable. This Court non-suited the appellant on the ground that the
application for appointment of an Advocate Commissioner was not
accompanied by a petition under Order XLI Rule 27 of CPC.
17.In reply, meeting the argument of Mr.N.Manoharan with regard to
the applicability of Order XLI Rule 27 of CPC, Mr.A.K.Sriram, learned
Senior Counsel would contend that the revision petitioner was only seeking
to summon the records from the bank for the purposes of having a
comparison made and that without a finding on this issue after getting a
report from the expert, the First Appellate Court cannot decide the main
appeal and in such circumstances, it is his argument that it was not necessary
to invoke Order XLI Rule 27 of CPC and request of the petitioner would not
strictly fall within the parameters of additional evidence being adduced
before the Appellate Court.
18.Be that as it may, the petitioner having specifically denied his
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signature even in the cheque dated 20.11.2013 and consciously went to trial
and having not taken out any application for comparison of the admitted
signature in the cheque dated 20.11.2013, with the disputed signature on the
reverse side of the cheque dated 04.10.2013 before the trial Court, after
suffering a decree, pending the First Appeal, the attempt has been made. No
doubt, even assuming if the request for sending for the original cheque from
the Bank may not strictly amount to additional evidence, even otherwise,
when the petitioner has consciously waived his right to seek such
comparison, pending trial of the suit, he cannot be permitted to fill up the
lacuna, after having suffered a decree before the trial Court.
19.In fact, even in the memorandum of grounds of appeal, as rightly
pointed by Mr.N.Manoharan, the revision petitioner does not challenge the
signature in the cheque dated 20.11.2013 and ground No.10 of the
memorandum of grounds of appeal raises a ground that the case of the
appellant was that the impugned cheque was issued in the year 2009-2010
for payment of insurance premium to the respondent, who admittedly was
an insurance agent of the appellant/defendant. In such circumstances, when
the suit claim is based on the said cheque dated 20.11.2013 and the revision
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petitioner has categorically admitted not only during trial, but also in the
grounds of appeal in the pending First Appeal, though having initially
disputed even the genuineness of this cheque, and there being absolutely no
ground raised with regard to the cheque dated 04.10.2013, I do not see how
the petitioner is entitled to seek for comparison of the disputed signature on
the reverse side of the cheque dated 04.10.2013, with the admitted signature
in the cheque dated 20.11.2013.
20.There is also no plea in the written statement that the plaintiff had
misused an open cheque dated 04.10.2013 by forging the signature of the
petitioner on the reverse side of the said cheque and that the plaintiff himself
has withdrawn the money. Such a ground is also not taken in the grounds of
First Appeal. Therefore, in such circumstances, the revision petitioner is
only attempting to plead a totally new case, in the application filed seeking
to have the signatures compared in the cheques dated 04.10.2013 and
20.11.2013. In the light of the above, I do not see any merit in the revision.
The order of the First Appellate Court, dismissing the application filed by
the revision petitioner does not call for any interference in the revision.
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21.In fine, the Civil Revision Petition is dismissed. No costs.
Connected Civil Miscellaneous Petition is closed.
09.01.2026
Neutral Citation: Yes/No
Speaking Order/Non-speaking Order
Index : Yes / No
ata
To
The II Additional District Judge, Tiruchengode.
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P.B. BALAJI,J.
ata
Pre-delivery order made in
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09.01.2026
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