Ganta Yadagiri vs Barupally Padmamma
2023 Latest Caselaw 3474 Tel

         THE HONOURABLE Dr. JUSTICE G. RADHA RANI

                   SECOND APPEAL No.1240 of 2009

ORDER:

This Second Appeal is filed by the appellant-respondent-plaintiff

against the judgment and decree dated 17.07.2009 passed in A.S. No.56

of 2007 by the I-Additional District Judge, Nalgonda, reversing the

judgment and decree dated 25.07.2007 passed in O.S. No.20 of 2005 by

the Junior Civil Judge, Nakrekal.

2. The parties are hereinafter referred as arrayed before the trial

court.

3. The case of the plaintiff was that the defendant borrowed a

sum of Rs.50,000/- from him on 06.05.2002 to meet her family and

personal needs and promised to repay the same along with interest at

24% per annum as and when demanded by the plaintiff. On the same

day, the defendant executed a promissory note in favour of the plaintiff

before the witnesses. After some time, the plaintiff demanded the

defendant to discharge the debt, but the defendant dodged the matter on

one pretext or the other. Finally, on 17.02.2005, the plaintiff got issued

a registered legal notice to the defendant. The defendant gave reply on

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04.03.2005 denying borrowing of the amount and executing the

promissory note. As such, the plaintiff filed the suit for recovery of an

amount of Rs.84,833/- (Principal amount of Rs.50,000/- + Rs.34,833/-

interest at 24% per annum from 06.05.2002 to 15.03.2005).

4. The defendant filed written statement contending that there

was no acquaintance between the plaintiff and the defendant and the

defendant was not in need to borrow any amount from the plaintiff and

the plaintiff was not a sound person to advance such huge amount to the

defendant and denied executing promissory note in favour of the

plaintiff before the witnesses. She contended that the so called

witnesses were strangers to her. She, however, admitted that the

plaintiff issued a legal notice on 17.02.2005 and that she got issued a

reply notice denying execution of promissory note. She further

submitted that a panchayath was held before the village elders after

issuing reply notice and the elders advised the plaintiff not to initiate any

case basing on illegal and fabricated documents. She further submitted

that the plaintiff was an auto driver and was not having any landed

property. He was having no other income except the auto and was not

having capacity to lent money to others. The defendant was doing a job

in Electricity Board from 18.04.2002 and prior to her appointment, her

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husband, by name, Sailu was working as Lineman in the Electricity

Board. After his death, on compassionate grounds, she was appointed as

Attender in the same Board. After the death of her husband, she received

all monetary death benefits of her husband from the Board and there was

no necessity to borrow any amount from the plaintiff and the plaintiff

had no capacity to advance the amount of Rs.50,000/-. He was not

having stable income.

4.1. She further submitted that prior to 1990 the plaintiff was

vagabond and was not having any job. In the year 1990, the defendant

filed a case against the plaintiff in P.S. Nakrekal, which was registered

as Crime No.198 of 1990 for the offence under Section 354 IPC and the

same was numbered as CC No.195 of 1990 on the file of the Judicial

Magistrate of First Class, Nakrekal. The village elders settled the matter

outside the court and got compromised the case on 27.09.1991. Even

after compromise, the plaintiff developed an ill-motive against the

defendant and was waiting for revenge and filed the present suit on

fabricated documents with forged signatures of the defendant. The

plaintiff was not in good terms with the defendant. The promissory note

was a fabricated document and the same was not binding upon her and

prayed to dismiss the suit.

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5. The trial court framed the issues as follows:

1. Whether the plaintiff is entitled for suit claimed amount or not ?

2. To what relief ?

6. The plaintiff examined himself as PW.1 and got examined the

attestors to the promissory note as PWs.2 and 3 and got marked Exs.A1

to A5. Ex.A1 was the promissory note dated 06.05.2002, Ex.A2 was the

office copy of the legal notice dated 17.02.2005, Ex.A3 was the postal

receipt and Ex.A4 was the acknowledgment card and Ex.A5 was the

reply notice dated 04.03.2005 issued by the counsel for the defendant.

7. The defendant was examined as DW.1 and got examined the

handwriting expert as DW.2. The opinion of the expert was marked as

Ex.C1, the covering letter as Ex.C2 and the reasons for the opinion was

marked as Ex.C3.

8. On considering the evidence on record, the trial court i.e. court

of the Junior Civil Judge at Nakrekal, decreed the suit with costs for

Rs.84,833/- with subsequent interest at 6% per annum on the principal

amount of Rs.50,000/-. The trial court believed the evidence of PWs.1

to 3 and considered that the opinion of the expert assumes no

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importance in view of the direct evidence available on record.

Aggrieved by the said judgment and decree dated 25.07.2007 in O.S.

No.20 of 2005, the defendant preferred an appeal. The appeal was heard

by the I-Additional District Judge, Nalgonda vide A.S. No.56 of 2007

and vide judgment dated 17.07.2009, the I-Additional District Judge,

Nalgonda allowed the appeal setting aside the judgment and decree of

the trial court placing reliance on the evidence and opinion of the expert

that the signatures on the promissory note were not that of the

defendant. The first appellate court, on re-appreciating the evidence of

PWs.1 to 3, found that their evidence was untrustworthy.

9. Aggrieved by the said judgment and decree dated 17.07.2009

in A.S. No.56 of 2007 reversing the judgment in O.S. No.20 of 2005,

the plaintiff preferred this second appeal. This court formulated the

substantial questions of law as follows:

1. Whether the opinion of the handwriting expert, who has been examined as DW.2, prevails over the occular testimonyy of PWs.1 to 3?

2. Whether the appreciation of evidence on record by the lower appellate court appellate court is perverse?

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10. Substantial Question No.2:

The first appellate court is the final court on appreciation of

facts. The second appeal would be allowed only if the said appreciation

of evidence made by the first appellate court is perverse. The evidence

of PWs.1 to 3 and DWs.1 and 2 is considered by the first appellate court

and observed that the defendant was residing at Hyderabad whereas the

plaintiff and PWs.2 and 3 were residents of Chandupatla village of

Nakrekal Mandal, Nalgonda District. The defendant's husband was

working as Lineman in the Electricity Board and after his death, the

defendant was appointed as Attender in the Electricity Board in the year

2002. The first appellate court also considering the fact that the

defendant filed a complaint against the plaintiff in the year 1990 for the

offence under Section 354 IPC for outraging her modesty and PWs.1 to

3 also admitted about the said case and the compromise, and the

defendant had given reply legal notice marked under Ex.A5 on receipt

of the legal notice got issued by the plaintiff and denied about obtaining

any loan from the plaintiff and contended that the plaintiff was not in a

financial capacity to give any loan to her and considering the admissions

of the plaintiff that he was an auto driver and PWs.2 and 3 were also

auto driver and tractor driver, respectively, observed that PWs.2 and 3

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were interested in PW.1 i.e. plaintiff. The first appellate court also

accepted the contention of the defendant that because of the criminal

case filed by the defendant against the plaintiff for the offence under

Section 354 IPC, the plaintiff developed ill-will against her and filed the

suit with forged promissory note. The first appellate court also

considered the evidence of the handwriting expert wherein he gave a

categorical finding that the signatures on the promissory note were not

that of the defendant, accepted the defence of the defendant. This Court

does not find any perversity in the observations of the first appellate

court in its appreciation of evidence. Hence, this substantial question of

law is answered accordingly.

11. Substantial Question No.1:

The trial court observed that the opinion of the handwriting expert

is not a conclusive proof of evidence and the said opinion must always

be received with care and caution as the same was empirical in character

and error was always possible and when there was direct and

trustworthy evidence of the persons who had actually seen signing the

document by the executor, it was not necessary to refer or rely on the

expert's opinion, discarded the evidence of the expert.

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12. The first appellate court considering that the opinion of

expert was relevant under Sections 3, 5 and 45 of the Evidence Act and

the court could not throw away the opinion of the expert and in many

cases the opinion of the handwriting expert is necessary for the court to

form an opinion on disputed questions of fact and it was not necessary

to travel beyond past five years in search of precedents, placed reliance

on the opinion of the expert examined as DW.2, and observed that the

trial court mis-directed itself and came to a wrong conclusion.

13. The science of handwriting is not an exact science and the

Hon'ble Apex Court in several cases held that great care and caution

should be exercised by the courts in determining the genuineness of the

handwriting. The opinion of the expert will be relevant though not

conclusive. The evidence of a handwriting expert need not invariably be

corroborated. If the court is convinced from the report of an expert that

the questioned writing was that of the defendant, there is no difficulty in

relying upon the expert's opinion without any corroboration. The court

can also form an opinion by comparing the two signatures having

negligible difference. The courts would normally look at expert's

opinion with a great sense of acceptability but it is equally true that the

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courts are not absolutely guided by the reports of the experts especially

if such reports were perfunctory and unsustainable.

14. The report of the expert, marked under Ex.C1, was supported

by reasons for arriving at such opinion, marked as Ex.C3. DW.2 was

the Assistant Government Examiner of Questioned Documents in the

office of GEQD, who had examined a large number of documents and

had undergone sufficient training in identification of handwriting and

detection of forgery. He stated in his evidence that on examining all the

documents sent to him i.e. promissory note and specimen signatures of

DW.1 and the Acquittance role of APCPDCL, vakalatnama and the

written statement containing the signatures of DW.1, he came to the

conclusion that the person, who wrote the blue enclosed signatures

stamped and marked as S1 to S10 and A1 to A7 did not write the red

enclosed signatures similarly marked and stamped as Q1 and Q2. He

stated that another person, by name, Sri S.C.Gupta, Government

Examiner of Questioned Documents also examined the documents and

he was also of the same opinion and they sent their opinions to the court

in the covering letter marked as Ex.C2. He stated that his opinion was

based on cumulative consideration of various differences between

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questioned and standard signatures and gave the reasons as follows in

Ex.C3:

"The general writing habits viz., skill, slant, speed, spacing, relative size and proportion of characters, movement and line quality are found dissimilar between the questioned and the standard signatures on comparison.

The standard signatures are written freely whereas the questioned signatures are written slowly and drawn in execution. Standard signatures are consistent and show natural variation among themselves. Characteristic differences are observed in the individual writing habits in the formation of various characters of the questioned signatures when compared with that of the standard signatures. The significant differences are as follows: formation of letter 'B' along with shape of its lobes; downward commencement of letter 'P' retrace at its staff; shape of its lobe and direction of its finish; location of commencement of 'a', shape of its oval and direction of its finish; location of commencement of 'd', shape of its oval and location of its finish; commencement of 'm', shape of its shoulders, twist at its middle part and direction of its finish; habit of giving dot after the signature available in Standard signatures are differently observed in the questioned signatures.

The aforesaid differences in the writing habits of the questioned signatures marked Q1 and Q2 and those of the standard signatures marked S1 to S10 and A1 to A7 are fundamental in nature and beyond the range of natural variation and disguise and when considered collectively they leads me to the opinion of different authorship."

15. Thus, the opinion of the handwriting expert is accompanied

by reasons for forming such opinion. The cross-examination made on

this witness would not discredit his evidence in any manner.

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16. The defendant in her reply legal notice at the earliest denied

obtaining the amount of Rs.50,000/- as loan from the plaintiff and

contended that the plaintiff was not having capacity to pay such amount.

She further contended that the documents if any with the plaintiff were

invalid documents. She also contended in her written statement about

the forgery aspect and filed a petition before the trial court to send the

document to the handwriting expert to determine whether the signatures

on the promissory note belonged to her or not. She also stated that the

plaintiff was not in good terms with her due to her filing a criminal case

against him earlier under Section 354 IPC which was compromised, but

keeping the same in mind, he developed ill-will against her and waiting

for revenge filed the suit with forged and fabricated document.

17. The evidence of the expert who was an independent witness

corroborates with the evidence of DW.1 that the signature on the

promissory note do not belong to the defendant. There is no reason to

suspect the evidence of DW.2 as it was supported by valid reasons. The

first appellate court on appreciating the evidence of PWs.1 to 3 came to

an opinion that their evidence was untrustworthy. As such, this Court

considers that the opinion of the hand writing expert, who is an

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independent, impartial and scientific witness supported by valid reasons

stands on a higher footing than the evidence of occular witnesses

examined as PWs.1 to 3, who were found untrustworthy by the first

appellate Court. As such, this Court does not find any valid grounds to

set aside the judgment and decree of the first appellate court in A.S.

No.56 of 2007.

16. In the result, the Second Appeal is dismissed confirming the

judgment and decree dated 17.07.2009 passed in A.S. No.56 of 2007 by

the I-Additional Chief Judge, Nalgonda. No order as to costs.

As a sequel, miscellaneous petitions, pending if any shall stand

closed.

_____________________ Dr. G. RADHA RANI, J November 01, 2023 KTL