Vankala Apparao v. Garimalla Venkata Naga Swaroop

THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Civil Revision Petition No.6463 of 2012 ORDER:

This revision petition under Article 227 of the Constitution of India by the unsuccessful petitioner/defendant is directed against the orders dated 05.11.2012 of the learned Senior Civil Judge, Vizianagaram passed in I.A.no.1106 of 2012 in O.S.no.15 of 2011 filed under Section 45 of the Indian Evidence Act requesting to send the exhibits A1 and A2, promissory notes respectively dated 25.12.2007 and 26.12.2007, to a hand writing expert for furnishing an opinion as to whether the writings relating to consideration amount mentioned in words, the rate of interest mentioned in words and the dates mentioned in the body of exhibits A1 and A2 are written by one and the same person after comparing the said writings with the entire writings contained in exhibits A1 and A2 in the interests of justice.

2. I have heard the submissions of the learned counsel for the petitioner/ defendant ('the defendant', for brevity) and the learned counsel for the respondent/plaintiff ('the plaintiff', for brevity). I have perused the material record.

3. The case of the petitioner/defendant, in brief, is as follows: The defendant never borrowed Rs.1,00,000/- on 25.12.2007 and also Rs.1,00,000/- on 26.12.2007 from the plaintiff to meet his family expenses and for discharge of his debts and he had never executed the suit promissory notes in favour of the plaintiff. There is a sale transaction between the defendant and Palluti Bhuvaneswara Rao S/o late Venkata Raju in the month of March 2007 with regard to mango tope at Cheepurupalli village. At the time of the said transaction, one Shanmukhini Roja Ramani and the plaintiff had acted as mediators. At the time of that transaction, they had obtained the signatures of the defendant on so many papers with stamps and white papers alleging that the signatures are necessary in regard to the said mango tope transaction. Believing the words of all the said persons, the defendant had

signed on the said papers. From the beginning, he is submitting that the suit promissory notes are created by the plaintiff. The writings in the exhibits A1 and A2 promissory notes in regard to consideration amounts mentioned in words and the interest rates mentioned in words are in different handwriting when compared to the entire writings, i.e., the whole of writings in exhibits A1 and A2. Further, the dates on the exhibits A1 and A2 - promissory notes on the right side and the dates mentioned in the body of the said promissory notes are in different handwriting. When PW2, the scribe of the promissory notes, was cross-examined, he had deliberately spoken a lie stating that the promissory notes are in his writing in entirety.

To prove the difference in hand writings in the promissory notes as stated above, it is necessary to seek the opinion of a hand writing expert as any variations in regard to the amounts of considerations and rates of interests mentioned in the promissory notes would amount to material alterations. The suit is based on materially altered promissory notes. Since the scribe gave false evidence, it became necessary to file the petition requesting to send the suit promissory notes to an expert for furnishing an opinion on the aspects stated by the defendant.

4. The case of the plaintiff in his counter, in brief, is this: The allegations in the affidavit filed in support of the petition, particularly, the allegation in regard to sale transaction in regard to mango tope and the further allegations that the defendant's signatures were obtained on so many papers with stamps and white papers alleging that his signatures are necessary in regard to the said mango tope transaction are all false. The allegations that the promissory notes are created and that there are variations in the writings contained in the promissory notes and that the scribe of the promissory notes had deliberately spoken lies during his cross-examination are false. The defendant had specifically admitted the execution of exhibits A1 and A2 promissory notes.

Therefore, there is no need to send the promissory notes to any expert. The scribe had categorically deposed that the writings in the suit promissory notes are in his own handwriting in entirety. The petition is filed to drag on the matter.

its judicious discretion having regard to the provision of Section 73 of the Indian Evidence Act. Hence, the petition may be dismissed.

5. On merits and by the orders impugned in this revision, the trial Court had dismissed the petition of the defendant inter alia holding that it is within the discretion of the Court to either accept or reject the request to obtain an opinion of an expert in regard to disputed documents and that the Court can always look into the documents and compare the handwritings as per the provision of Section 73 of the Indian Evidence Act and that in the facts and circumstances of the case, there is no need to send the suit promissory notes to an expert and obtain an opinion.

5. The learned counsel for the defendant while reiterating the case of the defendant had contended that the comparison of different writings by the Court by exercising judicial discretion and by exercising power under Section 73 of the Indian Evidence Act is not a safe course. It is always better to secure an opinion of an expert in the field instead of relying upon the Court's power to compare the disputed writings. The Court had failed to properly exercise its discretion. The Court below ought to have exercised judicial discretion in favour of the petitioner/defendant and ought to have allowed the petition instead of dismissing the same.

6. Per contra, the learned counsel for the plaintiff while reiterating the pleaded case of the plaintiff had supported the orders of the Court below and had contended that as per settled law every alteration is not a material alteration in view of the fact that the suit promissory notes are negotiable instruments.

7. To begin with, be it noted that in a suit for recovery of money filed by the plaintiff against the sole defendant on the basis of two promissory notes, the plaintiff after examining himself as PW1 had further examined the scribe of the promissory notes as PW2 to corroborate his version and to prove his suit claim. The defendant contends in the affidavit filed in support of the instant petition that his signatures are obtained on papers with stamps and white

papers in connection with a mango tope transaction between him and a 3rd party and that at that time, when his signatures were thus obtained, the plaintiff had also acted as one of the mediators and that the defendant never borrowed any amounts under the suit promissory notes from the plaintiff and that the suit promissory notes are created and that consideration amounts in words and the interest rates in words written in the said promissory notes are in different writing when compared to the writings in the entire body of writings in exhibits A1 and A2 - promissory notes and that the dates on the right side of the promissory notes and the dates in the contents of the said promissory notes are in different handwritings and that when these aspects were suggested to PW2, the scribe, he had deliberately spoken a lie stating that the writings in entirety in exhibits A1 and A2 are in his writings.

However, placing reliance on his evidence and that of PW 2, the plaintiff contends that the defence of the defendant is false. The trial Court, which recorded the evidence having examined the contentions of both the parties in the instant interlocutory application had opined that the Court has always the power under Section 73 of the Indian Evidence Act to compare the writings/disputed writings in the suit promissory notes and consider appropriately the contentions of the defendant regarding variations in the writings and that the case on hand is not a fit case to exercise the judicious discretion and send the suit promissory notes to an expert and obtain his opinion and had accordingly, rejected the request of the defendant. It is to be noted that the defendant is not disputing his signatures on the suit promissory notes.

His only complaint is about the variations in certain writings in the suit promissory notes and that the writings pointed by him in the two promissory notes are in different handwriting when compared to the remaining contents of the said promissory notes. The copies of the promissory notes are not produced along with the material papers. As rightly contended, all kinds of alterations cannot be termed as material alterations. The trial Court which had the advantage of looking at the original promissory notes, which are exhibited, had opined that it can exercise its power and compare at an appropriate sage, if necessary, the writings in the two promissory notes and that the case on hand is not a fit case to exercise discretion in favour of the defendant.

Though in the grounds of revision, there is reference to two citations, there is no need to advert to the ratios in the decisions as the revision petition is being disposed of purely having regard to the facts of the case.

9. Viewed thus, this Court finds that the defendant could not make out valid and sufficient grounds to consider his request and that in the facts and circumstances of the case, the Court below is justified in passing the impugned order and that therefore, the said order does not brook interference.

10. In the result, the Civil Revision Petition is dismissed. No costs. Miscellaneous petitions, if any, pending in this revision shall stand closed.

_____________________ M. SEETHARAMA MURTI, J 04th July, 2016 RAR