R.S.A.No.1491 of 2011 -1- ****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A.No.1491 of 2011
Date of decision: 2.1.2012.
Naresh Kumar .....Appellant Versus
Sukhdev Singh ...Respondent CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? Present: Mr. Sherry K. Singla, Advocate for the appellant. *****
G.S.SANDHAWALIA, J (Oral).
1. The present Regular Second Appeal arises against the judgments and decree of the Courts below wherein the suit for recovery of Rs.1,69,400/- (Rs.1,10,000/- as principal amount and Rs.59,400/- as interest) has been decreed against the defendant.
2. The suit for recovery was filed by Sukhdev Singh-respondent on the allegations that on 1.5.2005, the defendant had borrowed a sum of Rs.1,10,000/- in the presence of witness and agreed to pay the sum along with interest at the rate of 1.5% per month to the plaintiff. It was alleged that at the time of borrowing the said amount pronote and receipt in favour of the plaintiff was executed in the presence of the witness and the defendant put his signatures in English language on the pronote and R.S.A.No.1491 of 2011 -2- ****
receipt after affixing the revenue stamp on the same. The contents of the pronote and receipt were read over and explained to the defendant in Punjabi language in the presence of witness and the pronote and receipt were scribed by the defendant himself. The said amount had not been repaid and thus, the suit came to be filed on 30.4.2008. In the written statement filed by the defendant/appellant, it was alleged that the pronote and receipt were false, forged and fabricated and without consideration and the defendant never took any amount nor executed the pronote and receipt. The signatures on the pronote and receipt were also denied and it was alleged that the same were of some one else. On the basis of the said pleadings, the trial Court framed the following issues:- "1. Whether defendant executed a pronote and receipt for an amount of Rs.1,10,000/- in favour of the plaintiff on 1.5.2005?OPP
2. If issue No.1 is proved, whether plaintiff is entitled to recover the loan amount along with interest if, so at what rate?OPP
3. Whether plaintiff has no locus standi to file the present suit?OPP
4. Whether plaintiff has no cause of action to file the present suit?OPD
5. Whether suit of the plaintiff is maintainable in the present form?OPP
6. Whether pronote and receipt are false, forged and fabricated documents?
7. Relief."
3. The trial Court after taking into consideration the evidence of R.S.A.No.1491 of 2011 -3- ****
the plaintiff as PW-1 and PW-2 Janak Singh witness to the receipt and the evidence of the defendant as DW-1 and evidence of Ms. Rana Bansal, Handwriting and Finger Prints Expert, Patiala as DW-2 noticed that though a plea of false and forged pronote had been taken but the evidence regarding Janak Singh and his wife being a partner was beyond pleadings. The trial Court came to the conclusion that defendant had not made any complaint to any authority that the plaintiff had forged his signatures and there was sufficient evidence that the loan had been obtained and held that plaintiff was entitled to recover the loan amount with interest. The interest was reduced to 12% per annum instead of claim of 1.5% per month and the future interest was awarded at the rate of 6% per annum from the date of decree. Regarding the evidence of the Handwriting Expert the same was discarded on account of the fact that the standard signatures of the defendant which were compared were of 2008 whereas the disputed signatures were of 2005 and variation can occur with the lapse of time. The fact that the Handwriting Expert had said that the disputed signatures are result of copied forgery was also noticed and held that forgeror must have some model signatures before him for the purpose of copying and it was not the case of the defendant in pleading that plaintiff was having the signature of the defendant, and from where he had copied on the pronote and receipt. It was also noticed that experts usually gave opinion in favour of their pay masters.
4. The appeal filed by the defendant before the Lower Appellate Court met the fate of dismissal on the ground that there is a presumption under Section 118(a) of the Negotiable Instruments Act,1881 (26 of 1881) in favour of the plaintiff that he is a holder in due course unless proved to the contrary while placing reliance upon the judgment of Hon'ble Apex R.S.A.No.1491 of 2011 -4- ****
Court in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal AIR 1999 Supreme Court 1008. The Lower Appellate Court also took into consideration the signatures on the pronote and receipt and came to the conclusion that it was not possible for the Court to say that questioned signatures are the product of copied forgery and there was no evidence that plaintiff was having other admitted signatures of the defendant so as to make a traced forgery of the same and thus, it was not possible for the Court to rely upon the report Ex. D1 of the expert Ms. Rana Bansal. The fact that the Finger Print Expert toed the line of the party who engaged them was also noticed. Another factor which the Lower Appellate Court took into consideration was that there was a specific allegation that the defendant had filled up pronote in his own handwriting and once he had disputed the said pronote why he had not got compared the rest of the specimen hand writing and thus adverse inference was drawn against the defendant/appellant. Aggrieved against the said findings, the present appeal has been filed.
5. Counsel for the appellant has vehemently contended that the evidence of the plaintiff and the witness was contrary as to the place of execution of pronote and receipt and regarding the time the money was advanced and from where the plaintiff had got such a huge amount. Accordingly, it was contended that the presumption under Section 118(a) of the Negotiable Instruments Act,1881 had been rebutted by the appellant to show that the existence of consideration was improbable and that Janak Singh witness was the Assistant Manager in the State Bank of Patiala and therefore, he had access to the signature of the defendant.
6. The said submissions of the counsel for the appellant are without any basis since in this particular case the defendant/appellant has R.S.A.No.1491 of 2011 -5- ****
pleaded that there was fraud and forgery. However, as noticed by the trial Court apart from relying upon the evidence, there were no specific pleading to this effect that the provisions of Order 6 Rule 4 of the Code of Civil Procedure specifically provided that in case of fraud or misrepresentation there has to be specific averment as to show how fraud was committed. In the present case from the pleadings it would be clear that there is no such averment by the defendant in his written statement. Once the defendant had not explained in what circumstance the fraud had taken place and his signatures figured on the pronote and receipt, no finding can be recorded as to factum of Janak Singh being an Assistant Manager in the Bank and having access to the signatures of the defendant by which there could a traced forgery of the signature of the defendant. The Hon'ble Supreme Court in Shanti Budhiya Vesta Patel and others Vs. Nirmala Jayprakash Tiwari and others 2010 (2) CCC 579 while taking into account the provisions of Order 6 Rule 4 of the Code of Civil Procedcure held that full and presise particulars have to be given when fraud or coercion are pleaded. Thus, in the absence of such particulars the appellant is estopped from pleading that there was any fraud or forgery. Reference was also made to the statement of the plaintiff where he admitted that he knew the defendant because of Janak Singh. However, the opening line of the examination also noticed that the plaintiff had known the defendant Naresh Kumar for the last 10-12 years and he knew him because of Janak Singh. The statement of the plaintiff has to be read as a whole and a line from here and there cannot be relied upon. Janak Singh has also in his cross examination admitted that Naresh Kumar is his neighbour and, therefore, he knew him and in his statement stated that entire pronote was filled up by Naresh Kumar himself. This was the R.S.A.No.1491 of 2011 -6- ****
specific plea of the plaintiff himself and in paragraph 2 of the plaint. It was not specifically denied by the defendant. As noticed by the Lower Appellate Court, the defendant has not bothered to get the disputed handwriting examined as it would have adversely affected his case. The trial Court has also noticed the fact that the expert has compared the signatures on the power of attorney and written statement but the said signatures were not made in the presence of the Court and or in the presence of the expert and, therefore, there could be variations. The Courts below have also rightly discarded the opinion of the Handwriting expert due to the fact that she has been engaged by the appellant/defendant. The opinion of the Handwriting expert is not a perfect science and the Hon'ble Supreme Court in Ravichandran Vs. State by Dy. Superintendent of Police, Madras 2010(2) Civil Court Cases 554 (SC) has held accordingly and laid down after examining the settled position of law that the said science being of imperfect nature, the expert's opinion must not be acted upon unless substantially corroborated. Similar view has been taken by this Court in Jamail Singh and others Vs. Smt. Naranjan Kaur and others 2011( 2) PLR 408.
7. Admittedly the plaintiff had filed the suit on 3.4.2008 but the defendant did not file any complaint to the police regarding this forgery and if such forgery had taken place it would have been but natural for the defendant to agitate the said issue as a huge amount of money was involved. This is another relevant factor which has been noticed by the trial Court while decreeing the suit. The findings recorded by the Courts below cannot be said to be perverse or suffering from any illegality which would require interference in Regular Second Appeal and no question of law much less any substantial question of law arises in the present appeal R.S.A.No.1491 of 2011 -7- ****
which would warrant interference by this Court. Accordingly, it is held that presumption under Section 118(a) of the Negotiable Instrument Act has not been rebutted by the defendant by his bald testimony rather there is presumption that pronote and receipt was executed for consideration. Accordingly, the present appeal is dismissed with no order as to costs. January 02, 2012 (G.S.SANDHAWALIA) Pka JUDGE R.S.A.No.1491 of 2011 -8-
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