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Bhaggu Vs. Manni Prasad Pandey - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1621 of 1958
Judge
Reported inAIR1965All202
ActsEvidence Act, 1872 - Sections 73; Code of Civil Procedure (CPC) , 1908 - Sections 100
AppellantBhaggu
RespondentManni Prasad Pandey
Appellant AdvocateA.K. Misra, Adv.
Respondent AdvocateG.P. Bhargava, Adv.
DispositionAppeal allowed
Excerpt:
.....like the present the rule of caution and prudence required that the court should not arrive at a finding on the question whether there was interpolation in the receipt or not without the assistance of a handwriting expert. - the practice of a judge declaring whether a disputed signature agress with the other signatures of a certain person, without the assistance of any evidence but merely on his own inspection, has been disapproved by experienced judges in many case. here the appellant clearly alleged that there had been alterations and interpolations in the pronote and the receipt and there was no question of the trial court undertaking the task of determining the question without its having been raised by the appellant. it is, however, well settled that the construction of a document..........the receipt which established that the consideration was only rs. 150/- and not rs. 1500/-. on the aforesaid finding the trial court dismissed the suit. the respondent preferred an appeal before the court below which reversed the decision of the trial court and came to the conclusion that the respondent had established that rs. 1500/- had been advanced by him to the appellant and thus decreed the suit. the defendant has now come in second appeal in this court.2. learned counsel for me appellant contended that the pronote and the receipt itself indicated that alterations had been made in the pro-note and the initial figure of rs. 150/- had been converted into that of rs. 1500/-. learned counsel for the respondent contended that the suit was, in fact, not based on the promissory note and.....
Judgment:

S.N. Katju, J.

1. This is a defendant's appeal arising out of a suit for recovery of Rs. 2040/-representing principal and interest on account of money advanced to the appellant by the respondent on the basis of a promote and receipt dated 2-1-1902. It was alleged that the appellant had borrowed Rs. 1,500/- from the respondent and had agreed to pay interest at the rate of Rs. 2/- per cent per mensem and had executed a promote dated 2-1-1952. The respondent alleged that the amount due on the aforesaid loan had not been paid and, therefore, the suit in appeal was instituted. It was contended on behalf of the appellant that noamount had been advanced by the respondent to the appellant and that the appellant's signatures had been obtained by one Moti Lal on a blank pronote. The appellant, however, admitted thathe received only Rs. 150/- and alleged that subsequently the amount of Rs. 150/- was converted into Rs. 1500/-. The trial Court held that there was not sufficient evidence to establish that the respondent was a creditor and had advanced Rs. 1500/- to the appellant as contended by him. It further found that there was material alteration and interpolation in the pronote and the receipt which established that the consideration was only Rs. 150/- and not Rs. 1500/-. On the aforesaid finding the trial Court dismissed the suit. The respondent preferred an appeal before the Court below which reversed the decision of the trial Court and came to the conclusion that the respondent had established that Rs. 1500/- had been advanced by him to the appellant and thus decreed the suit. The defendant has now come in second appeal in this Court.

2. Learned counsel for me appellant contended that the pronote and the receipt itself indicated that alterations had been made in the pro-note and the initial figure of Rs. 150/- had been converted into that of Rs. 1500/-. Learned counsel for the respondent contended that the suit was, in fact, not based on the promissory note and that the claim was made for the recovery of the above amount due to the respondent. He further stressed that the finding arrived at by the Court below was a finding of fact and it could not he assailed in second appeal before me. Learned counsel for the respondent further contended that initially the appellant had alleged that there was a partnership between him and Moti Lal and it was Moti Lal who had obtained his signature on a blank pronote and receipt. It was held by both the Courts below that this plea of the appellant was not substantiated. Learned counsel for the respondent urged that since the aforesaid plea of the appellant has been disbelieved the Court belowwas right in basing its findings on the evidence on the record, which fully established that an amount of Rs. 1500/- had been advanced by the respondent to the appellant. The pronote was executed simultaneously with the alleged payment of Rs. 1500/- by the respondent to the appellant on 2-1-1952. It was alleged in the plaint that the appellant took Rs. 1500/- on 2-1-1952 and agreed to pay interest at Rs. 2/- per mensem and further agreed to pay the amount borrowed on demand by the creditor. It was further alleged that the appellant gave a promissory note and a receipt to the respondent for this satisfaction. The learned counsel for the respondent strenuously contended that the suit was not on the basis of the aforesaid promissory note but was for the recovery of the amount advanced to the appellant and that the promissory note and the receipt had been executedby way of collateral security. I am not prepared to hold that the suit was not on the basis of the promissory note itself. In any case, It is clear that the promissory note and the receipt were executed simultaneously with the amount advancedby the respondent to the appellant and the aforesaid document is undoubtedly a document which was the basis of the claim of the respondent against the appellant.

The promissory note and the receipt are on one piece of paper and on the left half is the promissory note and on the right half is the receipt. It is a printed document In which the blank space has to be filled In by giving the necessary details. The necessary particulars in the promissory note as also in the receipt are written in Urdu while the numericals are given in Roman figures. The promissory note bears the signature of the appellant in Hindi on four revenue stamps of one anna each, while the receipt is signed on a revenue stamp of one anna. The receipt bears the acknowledgment of the appellant in Hindi saying that Rs. 1500/- have been received in cash. One Jagannath has also signed in Hindi as a witness and he has also written that Rs. 1500/- was paid to the appellant. Both the amounts of Rs. 1500/- as purported to have been written by the appellant and by the witness Jagannath seem to indicate that the amount of Rs. 150/- was increased to Rs. 1500/- by the addition of another zero. The zero In the handwriting of the appellant has been placed over the numerical five and between the zero mark. The way In which the two zeros are placed in the aforesaid figures seem to indicate that there was interpolation and a zero was added to convert the original figure of Rs. 150 to Rs. 1500/-. Similarly in the writing of Jagannath there is a clear addition of a dot after the original figure of Rs. 150/-. For lack of space the zero seems to have been put in the shape of a dot. If for some reason the appellant had omitted to put a zero in writing the figure 1500 and he had to add a zero soon after he had put down the figure 150 It is a strange coincidence that the same difficulty should occur at the time when Jagannath was putting down the figure 1500 and he should commit the same mistake and after putting 150 he should find himself in the same plight as was alleged to have been experienced by the appellant and should be compelled to put a dot in order to complete the figure 1500. The respondent does not appear to be stranger to the business of money lending,

The form used by mm was a printed form which would indicate that he was familiar with the business of money lending. If he had seen that at the time of the writing of the receipt, both the appellant and Jagannath had made mistakes In writing the amount which had been advanced, there should have been no difficulty In getting a fresh receipt signed and executed by the appellant and the witness which would not have created any difficulty at a later stage and thus the risk of getting a receipt which on the face of it indicated that very likely there were interpolations in it would have been avoided. On the back of the aforesaid receipt there is an endorsement by the appellant that he had received a copy of the promissory note and the receipt. It is significant that the appellant was not an agriculturist and there was hardly any necessity for the appellant being supplied with a copy of the aforesaid pronote and the receipt. As has been mentioned above the respondent was no stranger to the business of money lending, it has come in evidence that he is a money lender and his outstandings at the time of the proceeding before the trial Court were in the neighbourhood of about Rupees 5-G thousand.

3. The trial Court discussed the writing on the prononte and the receipt at a considerable length and 1 agree with the reasons given by it in arriving at the conclusion that there was material alterations and interpolations in the pronote and the receipt which clearly established that the original consideration was only Rs. 150/-. The Court below expressed the view that a handwriting expert could have been more helpful to the appellant for finding out whether the additional zero in the handwriting of the appellant was genuine or forged and since a handwriting Expert had not been called by the appellant 'some adverse in reference in the circumstances should be raised' against him. The Court below relying on the evidence of Jagannath came to the conclusion that there was nothing in his statement for proving that he had changed the figure of Rs. 150/- to Rs. 1500/- at any time. It further expressed the view that all the four stamps in the pronote had been signed by the appellant and if it was a transaction involving Rs. 150/- only, stamps of the value of 4 annas would not have been affixed on the pronote. The Court below further considered the contention advanced on behalf of the appellant that he was a 'petty oil man' and the respondent could not have advanced a sum of Rs. 1500/- as loan to him. The Court below expressed the view that the appellant was 'not a man without means. Me was indebted to the respondent to the extent of Rs. 7000/- and had paid off those debts by selling his property for Rs. 9000/- sometimes after execution of this pronote.' It was held that a loan of Rs. 1500/- could be safely advanced to the appellant. There is no indication that the appellant had any other property besides the property which he had sold for Rs. 9000/- as mentioned above. If his liabilities had run to the extent of Rs. 7000/-it could not be said that he was a safe person for the advancement of a loan of Rs. 1500/-. I am clearly of the opinion that the pronote and the receipt indicated that the transaction was not for the advance of Rs. 1500/- to the appellant and the initial entry In the receipt both in the handwriting of the appellant as also of Jagannath was for Rs. 150/- which was subsequently converted into an amount of Rs. 1500/-.

4. The learned counsel contended before me that in a case like the present the rule of caution and prudence required that the Court should not arrive at a finding on the question whether there was interpolation in the receipt or not without the assistance of a handwriting expert. He relied on two decisions of this Court in Darshan Singh v. Parbhu Singh : AIR1946All67 and Azmat Ullah Khan v. Shyanm Lal AIR 1947 All 411. In : AIR1946All67 (supra) it was observed as follows:

'It is not desirable that a Judge should take upon himself the task of comparing signatures in order to find out whether there has been a forgery in the case. The least the Judge should do is to secure the assistance of the lawyers concerned in comparing the two signatures and arriving at his-conclusions.'

'We examined the deed with the assistance of the counsel for the parties and the learned counsel for the respondent frankly conceded that some of the criticisms of the learned Civil Judge were-unfair.'

in the present case, the learned counsel for the respondent did not contend that the Courts below did not take the assistance of the lawyers concerned in finding out whether there was interpolation in the aforesaid figures of Rs. 1500/-. The trial Court upon a consideration of the features in the aforesaid pronote and the receipt came to the conclusion that there were interpolations in the pronote and the receipt. The aforesaid findings were reversed by the lower appellate Court. It could not, therefore, be said that the mere absence of a Handwriting Expert from the array of witnesses vitiated the findings either of the trial Court or of the lower appellate Court.

5. In the case of AIR 1947 All 411 (supra) it was observed as follows:

'it appears to me that this was pre-eminently a case in which the services of an expert should have been requisitioned. The learned Judge himself did not find the matter free from difficulty. The-proper course for him was -- more particularly because he differed from the learned Munsif on a matter on which he was by reason of his familiarity with the language and the script more competent to speak -- to requisition the services of an expert.'

In the present case the trial court was fully familiar with the language and the script of the pro-note and the receipt. The court below should not have disregarded the finding of the trial court merely on the ground that because a Handwriting Expert had not been called by the appellant, therefore, an adverse inference should be drawn against him.

6. A Division Bench of the Calcutta High court in J. C. Glastaun v. Sonatanpal : AIR1925Cal485 , observed as follows:-

'The practice of a Judge declaring whether a disputed signature agress with the other signatures of a certain person, without the assistance of any evidence but merely on his own inspection, has been disapproved by experienced Judges in many case. It is especially not desirable that the Judge should take upon himself the task: of comparing signatures in order to find whether there has been a forgery in a case, where there is nothing to show on the record that the signature was alleged by any person to be forgery.'

The aforesaid observations would not apply to the case before me. Here the appellant clearly alleged that there had been alterations and Interpolations in the pronote and the receipt and there was no question of the trial court undertaking the task of determining the question without its having been raised by the appellant.

7. It may be a rule of caution and prudence that where the court considers that theopinion of a Handwriting Expert would be of assistance to it in coming to a decision it may call for the evidence of an expert. But there is no rule of law that the Court is precluded from coming to its own conclusions in cases where It is fully familiar with the language and script of the document which is the subject-matter of scrutiny before it and where it has the assistance in such scrutiny of the counsel of the parties. If on the face of it the Court is able to come to a conclusion that a particular document contains alterations and interpolations it is not bound to seek the assistance of Handwriting Experts. It could not, therefore, be said that simply because a Handwriting Expert was not called to give evidence the Court is not empowered to come to a conclusion, whether the pronote and the receipt in question nave been subjected to alterations or interpolations.

8. The learned counsel for the respondent further contended that the finding that there wore no Interpolations in the document was a finding of fact and it could not be challenged in second appeal in this Court. It is undoubted that Section 100 of C.P.C. does not empower this Court to disturb a finding of fact arrived at by a lower appellate Court. Kellance was placed on Haruha Singh v. Achal Hingh A1R 1961 SC 1097 and Sinha Ramanuja veer v. Kanga Kamanuja Jeer A1R 1961 SC 1720. It was held by the Supreme Court in the case of Kamanuja Jeer : [1962]2SCR509 (Supra) that the High Court has no jurisdiction to entertain a second appeal on the ground of a finding of fact being erroneous, however gross the error may be. It is, however, well settled that the construction of a document of title or of a document which is the foundation of the rights of the parties necessarily raises a question of law and can De considered in a second appeal in this Court: See Chuni Lal V. Mehta and Song Ltd. v. Century spinning and ., : AIR1962SC1314 . in Mathar Singh v. Ranbaz Singh, 1921-19 All LJ 149: (A1R 1921 All 212) it was observed as follows:

'But In this case the objection to the findings is that they are not based upon evidence but upon evidence which has been misread or misunderstood it was on account of that objection that we allowed both the learned Vakils to read to us the evidence, the plaintiff's Vakil to show that his objection was well founded and the defendant's Vakil to show that the findings of the learned Judge were supported by the evidence on the record. After hearing the evidence read and criticised by the learned Vakils for both sides, we have come to the conclusion that the findings of the learned Judge are not borne out by the evidence on the record.'

The question, therefore, is whether the consideration of the question of interpolation or alteration in the aforesaid receipt comes within the ambit of the construction of a document of title or of a document which is the foundation of the rights of the parties or whether an error in the construction of such a document: amounts to misreading of evidence, thereby raising a question of law, which could be considered In a second appeal in this Court.

9. In the present case the sole question was whether there had been alterations and interpolations in the pronote and the receipt. The question was one which could be found out from a scrutiny of the document itself. If it was evident that the original figure of Rs. 150/- had been converted into the figure of Rs. 1500/- could it be said that the matter did not involve the construction of a document or the misreading of evidence? The construction of a document implies the gathering of its meaning by looking into Its provisions. There may be a difference of opinion as to the meaning of its provisions and the intention of the parties who had executed the document. The meaning of the expression misreading the evidence is to put a wrong interpretation on what is said in the evidence, oral or documentary. 'Where the question is whether the creditor had advanced Rs. 1500/- or only Rs. 150/- as was alleged by the debtor, and from a scrutiny of the pronote and the receipt it is clear that the initial figure of Rs. 150/- had been converted into that of Rs. 1500/-, could it be said that the matter did not amount to a construction of the document? To find out as to what the document says amounts to construing it and in the present case where a wrong view has been taken as to what it says it also amounts to misreading it. If the answer to the question whether the debtor borrowed Rs. 1500/-or he had borrowed Rs. 150/- only has to be found out from the pronote and the receipt, then it cannot be said that the determination of such a question from the scrutiny of the document itself would not amount to either construing the document or gathering Its proper meaning and, in any case, It would be a matter which would raise a question of law which could be considered by the Court in a second appeal.

10. The learned counsel for the respondent relied on a single Judge decision of the Punjab High Court in Allahabad Bank Ltd. v. Kul Bhushan AlR 1961 Punj 571. The question for consideration in the aforesaid case was whether certain cheques which had been drawn in the respondent's name and had been honoured and cashed by the Allahabad Bank Ltd. were genuine or forged. The lower appellate Court found that the signatures on the cheques were not of the respondent and the Bank could not be exonerated from its liability. The finding of the lower appellate Court was challenged in second appeal and Mr. Justice Shamsher Bahadur expressed the view that the finding of the lower appellate Court was not open to challenge in second appeal as it was based on the evidence of the Expert together with the other evidence adduced on behalf of the plaintiff. It further expressed the view that the ground on which the finding of the lower appellate Court had been assailed was tenuous and he had no hesitation in rejecting the same. I am not sure whether the decision of the aforesaid case is of much help to the respondent in this case. It was not expressly stated that the finding on the question whether the signatures of the respondent on the aforesaid clieques were genuine or forged could not be assailed in second appeal. It only came to the conclusion that the finding of the lower appellate Court based on the evidence of the expert 'togetherwith the other evidence adduced on behalf of the plaintiff' could not be challenged in second appeal.

11. Learned counsel for the respondent also referred to several decisions In support of his propositions that the question of the genuineness of a document has been treated as a finding of fact. He relied on Ramchandra Mahadeorao v. Vlthal Balaji AIR 1950 Nag 226, surya Pal Singh v. Netra-pal Singh : AIR1945All28 , Janaradan Parlda v. Prandhan Das AIR 1940 Pat 245, Sltal Chandra Koiley v. Heirs of Minilal Koiley : AIR1955Cal21 and Hari Frasad v. Nathuni Sahu : AIR1962Pat165 . Where the genuineness of a document is determined by the evidence on the record, It may be that the finding Is a finding of fact which cannot be disturbed in second appeal by this Court.

12. In Parasnath Thakur v. Mohonl Dasi AIR 1959 SC 1204 it was held that the question whether a trust deed was a fictitious transaction was a question of fact. The question was whether the evidence, oral and documentary, warranted an inference in the aforesaid case that the properties had in fact been dedicated to the deity. It was held that the question was a question of fact and is consideration was barred under Section 100 of the C. P. C. In the case before me the question of the alterations in the pronote and the receipt does not depend on the consideration of the evidence and the surrounding circumstances or any other evidence but primarily on the examination and the scrutiny of the aforesaid document Itself. As has been stated above, the scrutiny would amount to construing the document. the court below was thus in error in reversing the findings of the trial Court and decreeing the suit of the respondent.

13. I, therefore, set aside the decree of the Court below, dismiss the suit and allow the appeal with costs.


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