Banking - Promissory note - Validity thereof - Section 118 of Negotiable Instruments Act, 1881 - Present appeal filed for challenging order whereby, suit for recovery of amount was decreed on basis of promissory note by presuming under Section 118 of Act that promissory note was valid - Whether Court rightly decreed suit by presuming under Section 118 of Act that promissory note was valid - Held, Appellant contended that promissory note was forged - Appellant failed in his attempt to establish that signature found in suit Promissory Note was forged one - Appellate Court had drawn presumption that signature was true and genuine and drew presumption under Section 118 of Act and decreed suit - Therefore, Appellate Court rightly decreed suit by holding validity of promissory note - Appeal dismissed. [para 11]
Madras High Court
Chenna Naicker vs Mara Naicker on 16 October, 2014
The defendant filed the second appeal against the Judgment and Decree dated 30.03.2007 passed in A.S.No.62 of 2006 on the file of the Subordinate Judge, Bhavani, reversing the Judgment and Decree dated 28.06.2006 passed in O.S.No.65 of 2005 on the file of the II Additional District Munsif (Incharge)/Principal District Munsif, Bhavani.
2.The respondent/plaintiff filed a suit in O.S.No.65 of 2005 on promissory note for recovery of a sum of Rs.79,852.50.
3.The case of the plaintiff/respondent herein is that on 15.08.2003, the defendant had borrowed a sum of Rs.70,000/- for his urgent requirement of the agricultural expenses and executed the suit Promissory Note agreeing to repay the same on demand. As there was default committed by the defendant, the plaintiff sent a lawyer notice dated 28.2.2005 to the defendant. The defendant even after receiving the said notice, did not give any reply to the plaintiff. Hence, the plaintiff filed the suit for recovery of a sum of Rs.79,852.50.
4.Opposing the plaint, the appellant/defendant filed a written statement wherein it is stated that the defendant denied the execution of the Promissory Note dated 15.8.2003, in favour of the plaintiff. He further stated that he borrowed a sum of Rs.5,000/- only from the plaintiff for his urgent family expenses by signing in a blank Non Judicial Stamp paper. He denied the execution of the suit Promissory Note in favour of the plaintiff. The defendant further submitted that the alleged suit Promissory Note was a rank forgery and he is not liable to pay the said sum of Rs.79,852.50. Hence, he prayed for dismissal of the suit.
5.Before the trial Court, Exs.A.1 to A.3 were marked and the witnesses P.W.1 to P.W.3 were examined on the side of the plaintiff. Only one document namely, Ex.B.1 was marked and the witnesses D.W.1 and D.W.2 were examined on the side of the defendant. Ex.X.1 (series) was marked as Court document.
6.The trial Court, after considering all the facts and circumstances of the case and the evidence available on record, dismissed the suit holding that the suit Promissory Note was forged document and the defendant did not borrow any amount from the plaintiff. Aggrieved by the judgment and decree passed by the trial Court, the plaintiff filed an appeal in A.S.No.62 of 2006 on the file of the learned Subordinate Judge, Bhavani. The learned appellate Judge, on reappraisal of the facts and evidence, decreed the suit holding that the suit Promissory Note was validly executed. As against the judgment and decree passed by the first appellate Court, the present second appeal has been preferred by the appellant/defendant.
7.Heard Mr.N.Manokaran, learned counsel appearing for the appellant and Mr.A.K.Kumarasamy, learned counsel appearing for the respondent.
8.At the time of admission of the above second appeal, the following substantial questions of law were framed by this Court:
"1.Whether the first appellate Court is correct in law in decreeing the suit by shifting the burden of proof on the defendant, particularly when the very execution of the suit document is in dispute and furthermore, the presumption under Section 118 of the Negotiable Instruments Act, 1881 cannot be invoked unless the defence plea of forgery is disproved by the plaintiff?
2.Whether the first appellate Court has misunderstood the essential distinction between burden of proof and onus of proof, when the burden of proof is static while the onus of proof is dynamic, therefore, the defendant who pleaded forgery need not prove his case till the plaintiff relying upon the suit document established its genuineness in the first place?
9.On perusal of the materials available on record, it is clear that the plaintiff sought for recovery of a sum of Rs.79,852.50 from the defendant based on the suit Promissory Note Ex.A.1 executed by the defendant. But, the defendant has denied the execution of the said suit Promissory Note Ex.A.1. Not stopping with that, he has gone to the extent of alleging that the suit Promissory Note Ex.A.1 was a rank forgery. No doubt, the initial burden was on the plaintiff to establish the execution of the Promissory Note as the defendant contended that the suit Promissory Note was a forged one. The question of law raised in the appeal is regarding the onus and burden of proof. Burden of proof lies upon the person who has to prove the fact and it never shifts. Therefore, in this case based on pro-note the burden of proof is on the plaintiff to prove the execution. Once the burden is discharged, the onus shifts on the defendant. Such shifting of onus is a continuous process in the evaluation of evidence. Hence, in a suit based on pro-note once the plaintiff has been able to create a high degree of probability the onus shifts on the defendant. For proving that the suit Promissory Note Ex.A.1 is a valid document, the plaintiff sought for appointment of Handwriting Expert. Accordingly, the trial Court had appointed D.W.2 as Handwriting Expert to compare the signature of the plaintiff with that of the admitted signatures and to file a report. The deposition of the said D.W.2 was believed by the trial Court and based on the same, the trial Court dismissed the suit. However, the lower appellate Court has observed that the said Handwriting Expert is not at all qualified by either obtaining a degree or a diploma in Forensic Science. D.W.2 has deposed in her evidence that she had been appointed as Handwriting Expert in many cases as a Private Expert for comparison of signatures. The defendant, however, contended that the said D.W.2, who had been appointed in many cases, has given her opinion as Handwriting Expert. Even presuming for a moment that the Private Expert engaged by the defendant is a qualified person, it has to be seen whether the signatures that were taken by the Expert for comparison are permissible in law.
10.In normal circumstances, the disputed signature is taken up for comparison only with the admitted signatures, which were executed at an earlier point of time, whereas in the case on hand, the Handwriting Expert, who has given her opinion had failed to follow the legal principle.
11.This Court has, time and again, held that the Expert can compare the signature only with the contemporaneous admitted signatures and not with the signatures executed by the party after filing of the suit. Besides, D.W.2 deposed that she was not very conversant with Tamil. The reasons for comparing only the contemporaneous documents are that the defendant had deliberately denied the signature found in Ex.A.1 and it was alleged that the said Promissory Note was a rank forgery committed by the plaintiff and the admitted signatures differently found in the documents, have been created subsequent to the filing of the suit. Therefore, comparison of signature found in Ex.A.1 with the signature found on the vakalat and the written statement cannot be accepted. Though the learned counsel for the appellant contended that Ex.B.1 could not have been intentionally executed or it had been executed without anticipating the suit, the same should have been rejected by the first appellate Court. Moreover, the Expert was not examined as Court witness, but had been examined as D.W.2. Therefore, the first appellate Court was apprehensive about the report filed by the said Expert. For the above said reasons, the first appellate Court had rejected the evidence of D.W.2. Further, the defendant also failed to establish his case by any other means other than the report of the Expert. Since the defendant failed in his attempt to establish that the signature found in Ex.A.1 suit Promissory Note was a forged one, the first appellate Court has drawn the presumption that the signature is true and genuine as found in Ex.A.1 and drew presumption under Section 118 of the Negotiable Instrument Act, 1881 and decreed the suit. Accordingly, Ex.A.1 seems to have been proved and valid consideration has been passed and the substantial questions of law are answered in favour of the respondent/plaintiff.
12.In fine, the second appeal is dismissed. The judgment and decree passed by the lower appellate Court are confirmed. There is no order as to costs. Consequently, M.P.No.1 of 2007 is closed.
16.10.2014 Index:yes/No Internet:Yes/No cla To
1.The Subordinate Judge Bhavani.
2.The II Additional District Munsif (I/C) Principal District Munsif, Bhavani.
3.The Section Officer, V.R. Section, High Court, Madras.
PUSHPA SATHYANARAYANA,J cla Pre-Delivery Judgment in S.A.No.1086 of 2007 16.10.2014
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