K. Subba Rao, C.J.
1. This is a plaintiff's appeal against the decreeand judgment of the Court of the District judge,Anantapur, in O.S. No. 6 of 1951, a suit fifed by the appellant to recover a sum of Rs. 29,264-0-8from the defendants.
2. The defendants are the partners of a firm carrying on business under the name and style of 'S. Lakshminarayana Chetti, V. Hanumanthayya Chetti, Thimmancherla.' The plaintiff is a businessman residing at the same place. The plaintiffs case is that the 1st defendant, on behalf of the firm, entered into an agreement with the plaintiff on 19-7-1947 to buy 2000 bags of coriander seeds, each bag containing 40 seers at Rs. 28-10-0 per bag and to take delivery of the same on or before 30-10-1947. Alleging that the defendants denied that they entered into any such, contract with the plaintiff, the plaintiff filed the aforesaid suit for recovery of damages being the difference between the contract rate and the market rate.
3. The defendants denied that they entered into any agreement with the plaintiff either on 19-7-1947 or on any subsequent date to buy 2000 bags or any quantity whatsoever of coriander seeds or any other goods.
4. The learned District Judge, on a consideration of the entire evidence placed before him, came to the conclusion that the defendants did not enter into the alleged contract with the plaintiff. On that finding, the suit was dismissed. Hence, the appeal.
5. The only question in this appeal is whether tie defendants entered into a contract with the plaintiff on 19-7-1947 to buy 2000 bags of coriander seeds. Ex. A-1 is the alleged contract. It purports to be a contract form of the defendants' firm duly filled up embodying the terms of the suit contract. Appended to the document are the signatures of the 1st defendant as a buyer and the plaintiff, as a seller.
It is dated 19-7-1947. P.W. 1, the plaintiff, says that the document was written by some clerk of the defendants' firm and was signed by the 1st defendant. The 1st defendant as D.W. 2 denies that he executed Ex. A-1 and states that the handwriting is not that of his clerk. The clerk, who is alleged to have written this document, has not been examined.
The evidence of the plaintiff and that of the1st defendant discloses that they were on bad terms during the crucial period and that there was also litigation between them which was taken up to the High Court. The evidence of P.W. 1, who is obviously an interested witness, cannot, therefore, be accepted unless it is corroborated by other evidence or supported by convincing and probabilising circumstances.
6. Ex. B-2 is one of the admitted forms of contracts maintained by the defendants. A comparison of the ink and print found in Exs. A-1 and B-2 indicates that Ex. A-1 is not one of the forms printed by the defendants for their use. There is obvious difference in the ink used and print in both the forms. While Ex. B-2 shows a clear perforation at the top indicating that it was removed from the contract form book, Ex. A-1 does not disclose a clear perforation but only a clumsy attempt to make it appear that there is such perforation.
7. A comparison of the signature of the 1st defendant in Ex. A-1 with those found in Exs. B-4 to B-10 brings out the clear differences between the two. While the admitted signatures are in a Free and flowing hand, the disputed one appears to be a laboured and constrained one. D.W-2 says that in his signature ordinarily there will be spacing between the first two letters and the third letter and that the final two letters are written one over the other.
In the admitted signature, the first two letters are written over one another and there is spacing between the 2nd letter and the 3rd letter whereas it is not so in the case of the disputed signature. In this case, we have not had the advantage of a Handwriting Expert scrutinising the signatures and giving his opinion on the genuineness or otherwise of the disputed signature. This is certainly one of those cases where Expert evidence would have been of great use.
But, for one reason or other that was not done in the Court below. The learned Counsel for theappellant suggests that the document may now be sent to an Expert but we think the request is rather too late for the suit is of the year 1950 and sis yeais have passed by. The appellant also filed an application for admission of other documents containing 1st defendant's signatures for comparison. It is alleged in the affidavit filed in support of the petition that the said documents were sent to the High Court in Appeal No. 812 of 1948, and, after the appeal was disposed of, they had been returned to the District Court, Anantapur and they were still there.
But that appeal was disposed of in February 1951, whereas the suit, out of which this appeal arises, was dismissed on 25-2-1952 and the plaintiff had every opportunity to file the documents in the District Court if he had intended to use them for the purpose of comparison. There are no grounds for admitting the fresh documents sought to be filed in this case.
No doubt, a comparison of the signatures without the help of an Expert may not afford a conclusive test in the case of expert forgers. But, in this case, the disputed signature appears to belong to a class different from the group of admitted signatures. It is not as if the admitted signatures were scribbled on some unimportant papers but they were all affixed to promissory notes wherein the 1st defendant was undertaking a liability.
Therefore, the easy flow of the admitted signatures cannot be explained away by stating that in Ex. A-1 the 1st defendant was putting his signature to a solemn document whereas in the other documents he was scribbling away an unimportant document. A comparative study of the signatures in this case certainly supports the case of the defendants.
8. Learned counsel strongly relies upon Ex. A-4, a letter dated 25-10-1947 alleged to have been written by the 1st defendant to the plaintiff in reply to a demand made by him in Ex. A-2 dated 24-10-1947 wherein the 1st defendant intimated to him that, as soon as Sarabhayya came to the village, he would come and take delivery of the goods. This letter, it is said, was received by the plaintiff in an envelope Ex. A-5 with the seal of Thimmanchexla dated 26-10-1947.
If this letter was genuine, it would establish the plaintiff's case for it contains a clear admission of the existence of the contract. D.W. 2 denies that he had written any such letter. Ex. A-4 is written on a bill form used by the defendants' firm. D.W. 2 has produced a book containing duplicate copies of the bills of his firm. Ex. A-4, as the learned District Judge points out, fits in with this book. It admittedly contains the initials of the 1st defendant.
A scrutiny of Ex. A-4 discloses that some writing originally written was effaced and the contents of Ex. A-4 were engrossed thereon above the signature. The first question that occurs to one's mind is whether a reply to a demand under Ex. A-2 would have been written on a bill form when the defendants must have had letter headings of their own and that too not signed but initialled by the Jst defendant. The defendants on 27-10-1947 gave a reply Ex. A-2 through their advocate Sri G. Nagi Reddi, Cooty.
In that notice, the defendants denied in specific terms that they entered into any contract with the plaintiff for the purchase of coriander. They also alleged that, for the reason that they had obtained a decree against the plaintiff in the District Court, Anantapur, the plaintiff had concocted matters and written a letter in the manner he did.
If really on 25-10-1947 the 1st defendant had admitted the existence of the suit contract, is it likely that, two days thereafter, he would have issued a reply notice denying the existence of such a contract and attributing forgery to the plaintiff for such a belated denial after the clear admission in Ex. A-4 would not have served the defendants' purpose. That apart, the plaintiff sent two telegrams to the defendants dated 29-10-1947 and 30-10-1947 and also a notice Ex. A-10 dated 17-12-1947; through his advocate Sri D. L. Chetti.
If leally the defendants admitted the contract in Ex. A-4 and denied it in Ex. A-6, is it likely that the plaintiff would not have mentioned in the telegrams or, at any rate, in the fetter dated 17-12-1947 the fact that at the earliest moment he admitted the contract. Even in the plaint no mention was made of Ex. A-4. It is inconceivable that if there was a document like Ex. A-4 admitting the contract and if that fact was mentioned to the plaintiff's advocate, he would not have prominently stated in the plaint that the defendant was denying the contract notwithstanding the fact that he admitted it as early as 25-10-1947.
The only explanation for this omission the plaintiff can offer in his evidence is that he did not show Ex. A-4 to his advocate at the time he issued the notice Ex. A-10. This is one of those hackneyed explanations witnesses offer when driven to a corner. The explanation is too thin for acceptance. The fact that Ex. A-5, a postal cover addressed to the plaintiff dated 26-10-1947 was produced is not of much consequence.
Both the persons belong to the village of Thimmancherla and the plaintiff, who forged Ex. A-4 could have easily put that letter in Ex. A-5 addressed it to himself and posted it. We have no doubt that the plaintiff secured some used bill issued by the defendants and, after erasing the contents, engrossed the reply notice over the initials of the 1st defendant.
9. There are also many circumstances in this case which improbabilise the existence of any such contract between the parties. The defendants filed O.S. No. 48 of 1946 against the plaintiff for recovering damages to the extent of Rs. 6,000/- in connection with some other contract. The plaintiff, in his turn, filed another suit against the defendants for a sum of Rs. 19,000/- on the basis of some alleged oral contract entered into by the defendants with him.
The District Court decreed the suit filed by the defendants in part and dismissed the suit filed by the plaintiff. The defendants filed an appeal to the High Court against the decree of the Sub Court, in so far as it disallowed their claim, while the plaintiff preferred cross-objections. Pending the appeal, when the defendants sought to execute the decree, the plaintiff filed an application in July 1947 praying for six months time. The defendants were given notice that the said application would be heard on 26-7-1947.
While the plaintiff says that a friendly order was made in that application granting time, the 1st defendant says that notwithstanding the fact that he opposed the application, the Court gave time as the plaintiff deposited a sum of Rs. 1,000/-, In view of the fact that the appeal was pending and the parties were keenly contesting the same, it is not likely that the defendants would have agreed for giving additional time to the plaintiff.
It is more likely that the Court, in view of the part payment made by the plaintiff, granted time. The suit contract was alleged to have been enteredinto between the parties on 19-7-1947 just a week before the application praying for time came up for hearing and when the appeal was pending in the High Court. It is very improbable that the defendants would have entered into a contract with the plaintiff during the period when they were seriously fighting in respect of other contracts alleged to have been entered into between them.
10. Secondly, there is clear evidence in this case that, during the period the defendants are alleged to have entered into a contract with the plaintiff, there was a downward trend in the market for coriander. Ex. B-11, the account book kept by the firm of Vallamkonda Adeppa and produced by D.W. 1 shows that the market rates for coriander was ranging between Rs. 21/- and Rs. 22/- during the period commencing from 27-2-1947 and ending with 2-11-1947.
On the side of the plaintiff P.W. 2 was examined to establish that on 18-7-1947 the price of coriunder had risen upto Rs. 30/-. Exs, A-15 and A-16 dated 18-7-1947 are the entries in the account book produced by P.W. 2. The book purports to relate to the firm of Golla Narayanappa in Thimmancherla. The entries do not give any particulars of the persons from whom the coriander was purchased or to whom it was sold.
They do not contain the seals of the Income-tax Officer or the Sales Tax Officer. The said items are also not in the hand-writing of P.. W. 2. The items, therefore, are not proved and the evidence of P. W. 2 in the circumstances cannot be accepted, particularly when Ex. B-11, the account hook of another firm, shows that, during a period of nine months, the price of coriander did not exceed the rate of Rs. 24/- per bag. It is, therefore, clear to our mind that the defendants who are businessmen would not have entered into a contract with the plaintiff at such a high rate when there was a downward trend in the market for coriander.
11. Further, there is also the evidence of D. W. 2 to the effect that the defendants' firm ceased to do any active business and that they di3 not wind up the business only because of the pendency of the aforesaid suits. There is no reason to disbelieve the evidence of D. W. 2. We, therefore, hold, on a consideration of the oral and documentary evidence and the probabilities in the case, that the plaintiff has failed to establish that the defendants entered into the suit contract with him.
12. It is then contended that the learned Judge went wrong in awarding maximum compensatory costs to the defendant, namely, Rs. 1000/-. We think, having regard to the glaring forgery committed by the plaintiff in this case presumably to wreck his vengeance upon the defendants, the learned Judge was certainly justified in exercising his power under Section 35-A(1)(2), C. P. C. and awarding maximum costs to the defendants. This is a typical example of false and vexatious claims for which compensatory costs are provided under Section 35A. C. P. C.
13. In the result, we dismiss the appeal with costs. In our view, the respondents should also be given compensatory costs. Notwithstanding the clear findings of the District Judge, the appellant persisted in his false claim for four long years and put the respondents to unnecessary trouble and expense. We fir the compensatory costs at Rs. 1000/-.
14. C. M. P. No. 1677 of 1955: There are no grounds for admitting fresh evidence at this very late stage. The appellant could, with some diligence, nave filed all the documents now sought to be admitted here in the first court itself. The application is dismissed.
15. C. M. P. No. 1678 of 1955: Dismissed.
16. C. M. A. No. 270 of 1952: This is an appeal against the order of the District Judge, Anantapur, directing a complaint to be filed against the plaintiff under Sections 209, 467 and 471, I. P. C. We nave found, agreeing with the learned District Judge, that the appellant had committed acts of deberate forgery by concocting Exs. A-1 and A-4 in support of his claim. The plaintiff forged the said documents to support his claim for a large amount of Rs. 29.264-9-3.
Such a person is obviously a danger to society and this is a typical case where the Court should file a complaint under Section 476, Cr. P. C. The learned District Judge has rightly exercised his discretion and made the complaint. But, unfortunately, the above appeal was filed against that Order and the High Court stayed the operation of the order with the result that four years have passed by from the date of the order of the learned Judge and 9 years from the date the forgery was committed.
The question is whether it is expedient in the interests of justice that an enquiry should be made into the offence within the meaning of Section 476(1), Cr. P. C, We think, that in view of the inordinate delay, no useful purpose will be served by prosecuting the appellant for an act of forgery committed in the year 1947. Though this is a case of the type for which Section 476, Cr. P. C. is really intended, with great reluctance we have come to the conclusion that no further proceedings need be taken against the appellant.
17. Section 476 Cr. P. C. is conceived in theinterests of the public and unless complaints are made against parties or witnesses who are proved to be forgers or perjurers in time, the growing evil of the impunity with which documents are got up and false evidence secured to support false and frivolous claims or to defeat genuine ones, cannot be controlled or eradicated.
This cannot be done if the appellate Court suspends the operation of the order of a subordinate Court directing the filing of a complaint as a matter of course when an appeal is filed by a party against that order. It is necessary that the appellate Court should scrutinise the facts of the case with care and give stay only if it is convinced that there is an arguable case for the appellant.
The appellate Courts also--whether it is the High Court or the first appellate Court--should try to dispose of such appeals as early as possible so that the purpose of Section 476, Cr. P. C. is not defeated. Learned Counsel appearing for the Government Pleader suggested that, even if the appellate Court suspends the order of a subordinate Court directing the filing of a complaint, the Magistrate before whom such a complaint was filed would have to stay the trial on the ground that an appeal was pending. Section 476(3), Cr. P. C. reads :
'Where it is brought to the notice of suchMagistrate or of any other Magistrate to whom the case may have been transferred that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter had arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case until such appealis decided.'
This sub-section does not enjoin on a Magistrate the obligation to adjourn every such trial whenever an appeal is filed. It is in his discretion to do so having regard to the facts of each case. This rule, cannot, therefore, be interpreted as to compel a Magistrate to automatically adjourn a case on the gjpund that an appeal was pending against the decision arrived at in the judicial proceeding out of which the matter has arisen.
He should exercise his discretion with care and if he is of the opinion that the appeal is frivolous he should not adjourn the trial unless the party concerned gets a stay order from the appellate Court. We hope and trust that, in the interests of the administration of justice in the State, the aforesaid procedure would, as far as possible, be followed.
18. The appeal is allowed but, in the circumstances, the appellant is directed to pay the costs of the respondent.