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Sumitra Debi Gour Vs. Calcutta Dyeing and Bleaching Works - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 264 of 1971
Judge
Reported inAIR1976Cal99
ActsEvidence Act, 1872 - Section 63; ;Stamp Act, 1899 - Section 12(1) and 12(3)
AppellantSumitra Debi Gour
RespondentCalcutta Dyeing and Bleaching Works
Appellant AdvocateGhosh, Adv.
Respondent AdvocateA.N. Bose, Adv.
DispositionSuit dismissed
Cases ReferredChinnaswami Thanjiroyar v. Pichai Maricar. But
Excerpt:
- order1. this suit has taken quite a long time. the argument was concluded at 4 p. m. yesterday the 16th instant on the 20th day of its hearing.2. the suit was filed by one sumitra debi gour against the defendant, calcutta dyeing and bleaching works, a firm belonging to, as has been stated several times, agarwala group of business concerns carrying on its business at p.38. india exchange place, calcutta-1. the plaintiff sumitra debi gour is the wife of one madan mohan gour who until 12th november, 1970, was associated with this agarwala group of business. in fact prior to his resignation or withdrawal from service from this agarwala group of business mr. madan mohan gour, the husband of the plaintiff, was the managing director of indo-dan milk products co. ltd. belonging to the said.....
Judgment:
ORDER

1. This suit has taken quite a long time. The argument was concluded at 4 p. m. yesterday the 16th instant on the 20th day of its hearing.

2. The suit was filed by one Sumitra Debi GOUR against the defendant, Calcutta Dyeing and Bleaching Works, a firm belonging to, as has been stated several times, Agarwala group of business concerns carrying on its business at P.38. India Exchange Place, Calcutta-1. The plaintiff Sumitra Debi GOUR is the wife of one Madan Mohan GOUR who until 12th November, 1970, was associated with this Agarwala group of business. In fact prior to his resignation or withdrawal from service from this Agarwala group of business Mr. Madan Mohan Gour, the husband of the plaintiff, was the Managing Director of Indo-Dan Milk Products Co. Ltd. belonging to the said Agarwala Group.

3. Shortly, the plaintiff's case is that she lent and advanced diverse sums of money to the defendant company a firm, and at the time of the filing of the suit or immediately prior thereto after adjustment of accounts, the defendant firm was owing to the plaintiff a sum of Rs. 1,13,965.56 which the defendant did not pay in spite of repeated demands. Hence this suit has been filed by the said Sumitra Debi Gour for recovery of the said sum of Rs. 1,13,965.56 as mentioned in the plaint with interests and costs, etc.

4. The suit was filed on 18th June, 1971., On behalf of the firm in the written statement it was, inter alia, stated that the plaintiff was a partner of one Bharat Dyeing and Manufacturing Co. belonging to the said Agarwala group between 1962 and 1967. After the plaintiff retired from the said firm of Bharat Dyeing and Manufacturing Co. on or about 1967 after adjustment the moneys due to the plaintiff from the said firm of Bharat Dyeing & Manufacturing were paid and/or credited in her name as loan with the defendant firm, it is alleged there were common partners of Bharat Dyeing and Calcutta Dyeing at the relevant time and Amar Chand Agarwala was a common partner.

5. According to the defendant various sums of money were re-paid to the plaintiff from time to time in repayment of the said loan and/or advance and after 31st of March every year statements of account showing the correct position were duly sent to the plaintiff.

6. It was the further case of the defendant that at the request of the plaintiff the defendant has also paid various Income-tax liabilities of the plaintiff as well as has made direct payments to the plaintiff and all such payments were adjusted in the loan account of the plaintiff.

7. The defendant's further case is that except one bank draft of Rs. 50,000/-which was sent to the plaintiff in Muzaffarna-gar in or about 16th September, 1970, all payments were made to the plaintiff in cash in Calcutta. The defendant relies on a statement of account ending 3,1st March, 1971 which is Annexure A to the written statement and according to the defendant the said statement of account has been duly sent' to the plaintiff and from the said statement of account it will be found that nothing is due to the plaintiff from the defendant firm and Rs. 50,000/- was paid on account in cash to the plaintiff on 23rd May, 1970 and in full settlement Rs. 57,208 was paid in cash to the plaintiff on 16th October, 1970 and on repayment of the said sum of Rs. 57,208/- on 16-10-1970 the entire loan account of the plaintiff was squared up and the said sum of Rs. 57,208 was received by the plaintiff in full and final settlement of all her dues from the defendant and nothing is due to her from the defendant firm.

8. Shortly put, the plaintiff has sued for the recovery of the said sum as loan and advance to the defendant and the defence of the defendant was that the entire sum of money that was advanced by the plaintiff to the defendant has been fully paid with interests as agreed in full settlement of the claims of the plaintiff by the defendant.

9. As the loan was admitted and the defence is the payment which is disputed, the following issues were raised:--

1. Has the defendant paid Rs, 1,58,406.41 to the plaintiff as alleged in Annexure A to the written statement?

2. Is the suit barred by limitation?

3. Is the suit bad for non-joinder of parties as alleged in paragraph 14 of the written statement?

4. What relief, if any, is the plaintiff entitled to?

10. Of these four issues, the issues of limitation and non-joinder of parties have been abandoned by the parties before me and therefore practically there is only one issue.

11. After the issues were raised there was some argument as to who should go to the box first. According to Mr. B.K. Ghosh, counsel appearing for the plaintiff, the defendant should go to the box first and according to the defendant, Mr. A. N. Bose the plaintiff should go to the box first. After hearing the arguments I decided that the onus should be on the defendant to prove that they have made the payment in full to the plaintiff and they should go to the box first. Thereafter Mr. Amiya Nath Bose the counsel for the defendant called his witnesses.

12. In support of their case that thepayment has been duly made, the defendantrelies on two receipts granted by the plaintiff,both exhibits being Exts. 1 and 7 signed bythe plaintiff in full discharge of the said loan.Ext. 1 reads thus : 23-5-70 -- received a sumof Rs. 50,000/- (Rupees fifty thousand only)by cash today from Messrs. Calcutta Dyeingand Bleaching Works on account*. There isa revenue stamp of 10 P under it which hasbeen cancelled by crossing and signed SumitraDebi Gour, the plaintiff. The other one,Ext. 7 reads thus: 16-10-70 -- received fromMessrs. Calcutta Dyeing and BleachingWorks a sum of Rs. 57,208/- (Rupees fiftyseven thousand two hundred and eight only)by cash today in full and final settlement ofmy account'. There is a revenue stamp of10P crossed and signed by Sumitra DebiGour the plaintiff. Except the signatureeverything else is typed.

13. It is of course clear that if these receipts are genuine, the plaintiff has no case. The plaintiff admits both her signatures on Exts. 1 and 7 but disputes that she signed these receipts, Exts. 1 and 7. The plaintiff challenges these receipts mainly on two grounds. She emphatically states before me that she has never signed on these two receipts and according to her, her personal Income-tax matters were dealt with by one Paramanand Agarwala, the Manager of the defendant firm and to the said Parmanand Agarwala she forwarded her returns in duplicates signed by her and the receipts might have been manufactured from some of those documents which are already signed by her. The other ground on which the receipts are challenged was that as the receipts are not duly stamped under the Stamp Act, they are not admissible in evidence and therefore the Court should not look at them or rely of them. According to Mr. Ghosh, the receipts must be signed on the revenue stamp and unless some part of the signature is on the stamp, the stamp is not duly cancelled under the Stamp Act and the document in which the stamp has not been duly cancelled is treated to be an unstamped document and they are inadmissible in evidence. These two documents, Exts. 1 and 7, of course bear two adhesive revenue stamps of 10p. each but these stamps are only crossed by two diagonal lines from one corner to the other and no part of the signature of the plaintiff. Sumitra Debi, appears on the stamp and therefore the satmps have not been duly cancelled under the Stamp Act and not admissible in evidence. Therefore if the receipts are not admissible in evidence then the statement of the defendant that the money has been duly paid to the plaintiff does not bear the scrutiny as it is not supported by any documentary evidence and should be rejected.

14. So far as Ext. 1 is concerned which is the receipt dated 23rd May, 1970 Mr. Ghosh takes also the defence of alibi and states that on 23rd May, 1970 his client Mrs. Sumitra Debi Gour was not at Calcutta but was at a place called Kurnool in Andhra Pradesh and as such she could not have signed the receipt at Calcutta on 23rd May, 1970 as alleged by the defendant and in support of his contention that she was in Kurnool, apart from the verbal evidence, Mr. Ghosh produced a diary containing entries made by the father of the plaintiff, since deceased, Ext. X from which it may be evident that the plaintiff was at Kurnool in Andhra Pradesh from 22nd April, 1970 to 2nd June, 1970. Another point made by Mr. Ghosh was that the two receipts from their very appearance show that the papers of those receipts must have been torn or cut from some other paper and in this case as obliquely suggested from her , Income-tax re-turn duplicates or triplicates and the typed portion of the receipts have been somehow squeezed in the short space which make the receipts very suspicious. These are mainthe attacks made on the Receipts, Exts.and 7 produced by the defendant.15. Mr. A. N. Bose appearing for todefendant, on the other hand, submits thethe receipts are genuine. If both the receiptare genuine, then the defendant has discharged his onus. The defendant has statein details how prior to the dates of the receipts i.e. one day prior to the receipts i.e. 0122nd May and 15th October, 1970 respectively the plaintiff's husband came to the defendant's office and demanded the repaymentand how the plaintiff along with her husbandcame to the office at P.38, India ExchangePlace on 23rd May, 1970 and 16th October,1970 and received the payments and delivered the receipts in presence of ParamanandAgarwalla. Mr. Bose subsequently stated thatnot only the receipts were taken but voucherswere prepared in respect of both these payments being Exts. 2 and 8 and entries wereduly made in the books of account of thefirm both in the cash book and the ledgerwhich have been duly audited and tenderedbefore me. Mr. Bose has further endeavoured to prove that both the plaintiff and herhusband were not witnesses of truth and noreliance could be placed on their evidence andpointed out to me various contradictorystatements and infirmities made by them intheir evidence before me.

16. Coming to the stamp the defendants states that it has been duly cancelled by crossing the stamp diagonally and cited authorities. About the plaintiff's father's diary Mr. Bose contends that it is not admissible in evidence and there was some argument made before me whether I should admit the diary in evidence. According to Mr. Bose Section 32(1) and (2) of the I. E. Act does not permit this type of diary as produced by the plaintiff to be put in evidence. Mr. Ghosh, on the other hand, cited authorities before me to show that the diary should be admitted in evidence. I must say that none of the learned counsel could produce before me any direct authority on the point that such diary as produced by the plaintiff could or could not be admitted in evidence. Mr. Ghosh among others cited : AIR1954SC601 , AIR 1967 SC 1326. Mr. Bose on the other hand cited (1893) ILR 23 Bom 63, 65 Cal LJ 603 = (AIR 1938 Cal 150) and a few other cases. I had some misgivings in my mind to start with whether this diary is legally admissible in evidence or not, but my task became easy when Mr. Bose appearing for the defendant himself tendered the copy of the diary entries disclosed by the plaintiff and so the diary entries were tendered and marked as exhibits 'X' series.

17. Mr. Bose submitted before me that considering the entire evidence if the Court finds that the plaintiffs evidence of material points cannot be believed, then her whole statement that she did not sign the receipts should also be disbelieved and rejected. The question is, whether the plaintiffs statement should be believed or the defendant's statements should be believed.

18. According to Mr. B.K. Ghose and also Mr. A.N. Bose, if there an contradictions in verbal evidence, one should consider the documentary evidence as it is often 'being stated that 'men may lie but documents do not'. Considering the evidence given on behalf of the plaintiff and the defendant and seeing the demeanour of their witnesses, I cannot say that either the defendant's witnesses or the plaintiffs witnesses very much impressed me, specially Paramanand Agarwalla did not appear to me to be a witness whose evidence on all points can be relied on. Similarly, I can only say that the evidence of the plaintiff or her husband did not impress me at all and on some points it appeared both of them tried to suppress the truth from this Court. But following the well-known principle that when the verbal evidence cannot be believed, court should look into the documents, I now deal with the documentary evidence in this case.

19-20. Mr. B. K. Ghose relies on his Attorney's first letter written on the 16th April, 1971 and in that letter of 16th April, 1971 Mr. Ghose strongly relies on a statement made which is admitted by the defendant to have been received by them and the significant sentence in that letter Ext. 9 to which Mr. Ghose drew my attention was that, 'our client ......... has handed over to us the correspondence that passed between you and her ending with her letter dated 15th ultimo with instructions to deal with the same as hereunder.' According to Mr. Ghose, this sentence in the letter of 16th April has not been denied by the defendant and as such the plaintiff strongly relies on the three letters, first dated 12th November, 1970, second dated 16th November, 1970 and the third dated 15th of March, 1971, each and every one of them being sent by registered post to the defendant has not been replied to by the defendant and in each letter the plaintiff has made her demand of the sum of money from the defendant and by not giving any reply to these letters, or denying the loan the conduct of the defendant shows that they were taking time to manufacture some kind of defence in the mean time. Of course the defence was that none of the earlier letters were received by the defendant. At the first blush, this argument of Mr. Ghose impressed me, but this argument did not stand the dose scrutiny. The first letter relied on by Mr. Ghose is letter dated 12th November, 1970 alleged to be written by the plaintiff to the defendant demanding the sum of money from the defendant and, if I am right, according to the plaintiff this is the first letter of demand written by the plain-tiff to the defendant which has been produced before me. Now, let us examine and scrutinize this first alleged letter of demand dated 12th November, 1970. I may say at the ouset that according to the defendant they never received this letter, but according to the plaintiff this first letter of demand dated 12th November, 1970 was sent by registered post with acknowledgment due and they have produced before me one acknowledgment due receipt dated 12th November, 1970 being Ext. 'I'. In the acknowledgment receipt that has been produced before me only the stamp of the defendant firm was exhibited as nobody could gay about the signature on the receipt, but none the less let us scrutinize this document of 12th November, 1970 as it is alleged by the defendant to be a spurious document. In support of their case, the defendant drew my attention to the fact that whereas in every other letter which is alleged to be sent by registered post by the plaintiff, in the copy the word 'registered' or 'registered with acknowledgment due' is typed, but on this letter of 12th November, 1970 in the copy produced the word 'registered' or 'registered with acknowledgment due' has not been typed. The next point about this letter Ex. V is that the copy letter though typed, bears the date 12th November, 1970 in hand and according to the plaintiff, the handwriting of the date is the handwriting of Satrughna her son. Of course, from her testimony it seemed to me bit queer that though the copy letter was brought to her by her husband for her signature, date was not typed and the husband did not put the date but her son Satrughna did as, according to her, the husband after handing over the letter immediately started taking his breakfast or lunch. It is again significant that according to the defendant this letter first saw the light of the day as an annexure in the petition of the plaintiff in their application for examination of documents and in that copy annexed by the plaintiff no date appears and from this the defendant submitted that it shows that the letter was a manufactured or false document or at least the date has been put much later. Another most significant fact which also has not escaped my attention is the affidavit of documents filed by Sumitra Debi Gour the plaintiff on the 8th January, 1973. In the affidavit of documents affirmed by Sumitra Debi though all the letters written by her which she disclosed bear a date, this letter being item No. 6 in the affidavit of documents Ex. 27 being the copy letter from Sumitra Debi Gour to the Manager, Calcutta Dyeing and Bleaching Works', does not bear any date. I can only say that the criticism of this letter being suspect or spurious as stated by the defendant has some substance. Also on 12-11-1970 M. M. Gour sends his letter of resignation Ex. '11'. Again, in the 16th April, 1971 letter Ex. 9 Mr. Dutt writes, 'correspondence that passed between you and her ending with her letter dated 15th ultimo' which shows that it was not just a one-sided affairs; the correspondence must be, as stated by M/s. R. N. Dutt & Co., between 'you and her', but not a single letter written by the defendant to the plaintiff has been produced by the plaintiff in support of this statement on which Mr. Ghose so strongly relies,

21. Mr. Ghose's next argument was that the 16th April, 1971 letter, i.e. the first Solicitor's letter on behalf of the plaintiff though received by the defendant, was not replied to and according to Mr. Ghose the first letter of the Solicitor on behalf of the defendant is dated 14th June written by Mr. G. Bagaria in answer to the plaintiff's Solicitor's letter dated 9th June, 1971. But in that letter of 14th June, 1971 Mr. G. Bagaria writes that the plaintiff's Solicitor's letter of 16th April, 1971 was 'duly replied' to by the defendant. Mr. Ghose's comment is that the words 'duly replied' without giving a date, i.e. 26th April, 1971 Ex. A as now being alleged by the defendant, shows that the 26th April, 1971 letter was an after-thought and was manufactured later on. Mr. Bose's answer to this is that perhaps it would have been better if they had mentioned the date also but because the Solicitor had not thought it fit to give the date, that by itself should not create any suspicion in the mind of the Court that that letter was never sent and Mr. Bose also drew my attention to certain letters written by the plaintiff's Solicitor where the dates of the letters mentioned therein were not put. Therefore, in my mind, just because the date is not given, the letter does not become a suspect. Of course, after 26th April, 1971 the next letter by the plaintiff's Solicitor was on the 9th June, 1971 replied to by the defendant's solicitor by the letter of 14th June. Then there were two letters of the 15th June, 1971, one written by the plaintiff and the other by the defendant and the suit was filed on the 18th of June, 1971. It was also the evidence on behalf of the plaintiff that the father of the plaintiff died sometime in December, 1971

22. In support of his case, the plaintiff further produced before me a taperecord embodying the alleged telephonic conversation between Paramanand Agarwalla the Manager of the defendant firm at all relevant time and Madan Mohan Gour the husband of the plaintiff in which Paramanand is alleged to have admitted that the receipts Exts. 1 and 7 are not genuine. According to the plaintiff's husband Madan Mohan GOUT, The taperecording were done on three different dates, two before the suit in 1971 and one after the suit in 1975. Again, on the point of admissibility in evidence of this taperecord, there was some objection from Mr. A. N. Bose. According to Mr. Bose, the counsel for the defendant, the authenticity or identity of voice and the originality of the tape must be carefully considered and after satisfaction by the court that the identity of voice and the originality of the tape has been established, then and then only the taperecord should be admitted in evidence. It is possible to tamper with the tape. Mr. Ghose on the other hand cited, an unreported judgment of A. N. Ray, J. (as he then was) of this Court and both Mr. Bose and Mr. Ghose referred to another judgment of his Lordship the Chief Justice Ray, reported in : 1973CriLJ228 . Mr. Bose also strongly relies on two decisions of the English High Court, one reported in (1972) I WLR 651 and another in (1971) 1 WLR I. Though both these two English cases are judgments on criminal appeals but the principles of admissibility of tape are the same. In my view, before any court can accept the evidence of taperecord the court must carefully consider the genuineness of the tape before it is accepted. Usually, as it is expected to be, the taperecording of the voice is done without the knowledge and consent of the person concerned and very often he is being trapped unknowingly into it. Therefore, anything which is born of trickery or trapping or cunningness should be very cautiously and carefully considered by the court before it is admitted and accepted. After all, ventriloquism is not very uncommon and before any court can rely on a taperecord, the court must carefully guard himself against all these possible tampering and manufacturing and should Took for independent corroboration and intrinsic evidence before he relies on the tape. The court should be cautious to accept the testimony of tape-recording and should reject unless there is further independent and reliable corroboration.

23. In this particular case, when Mr. Ghose wanted to tender the tape, Mr. Rose objected particularly on the ground that Paramanand Agarwalla, the alleged speaker on the tape, denied his voice after hearing the tape. Paramanand said that it is not his voice nor he ever spoke or had any conversation with Madan Mohan Gour as alleged in the tape. But when Mr. Gour came to the box, on his statement on oath that it is Paramanand Agarwalla's voice, I admitted it into evidence. Admissibility is one thing the value or reliance to be put in it is entirely different. The tape was transcribed and translated into English and has been tendered. But Mr. Gour admitted in the strain of cross-examination that this cassette Ext, V was in his custody for the last four years and he also admitted that there was a possibility of it being tampered and/or changed. Of course, he denied that he ever tampered with it. But then, in my opinion, it comes within the mischief of the English decisions that the custody of the taperecord must be beyond suspicion before a tape can be accepted. I myself placed on my table and played both the tapes, Ext. V & Ext. J which was the admitted voice of Paramanand' as he uttered in this court before me and compared and judged them. I must say to my ears there was a considerable difference in the voice of Paramanand as alleged in Ext. V and the voice in Ext. J. Of course, Mr. Chose submitted that one was taken from the telephone receiver and the other was direct in court and therefore there is bound to be some difference in phonetics.

24. Mr. Dutt, Counsel for the plaintiff also drew my attention to the demeanour of Paramananda Agarwal when the tape was being played. I could see that he appeared to be nervous but this nervous demeanour alone cannot help the plaintiff in proving that the voice of Paramananda Agarwal. T must say that I was not very much impressed with Paramananda's evidence and perhaps would have decreed the suit if the defence was only based on the verbal evidence of Paramananda Agarwal. There is a well-known saying if verbal evidence are contradictory look to the documents for ascertaining true facts.

25. Even if the entire tape is accepted, there is only some vague suggestion or statement that the receipts may be false. Apart from that innuendo and/or indirect suggestion there is nothing in my mind which helps the plaintiff very much even if the taperecording was accepted, but none the less as there has been contradictions in the evidence as to when the tape was recorded between Mr. Gour and Mrs. Gour, because according to Mr. Gour the tape was recorded on three dates which is denied by Mrs. GOUR, and as to my ears there is difference in voice and there is hardly any phonetic similarity between the voice of Paramanand and his alleged voice in the tape, I reject the statements alleged to be made by Paramanand on the tape which has been tendered by the plaintiff as an admission by Paramanand and I reject that evidence of the plaintiff.

26. Now, even though the alleged admission by Paramanand goes, but none the less I must be satisfied that the receipts are genuine before I accept these receipts Exts 1 and 7 because unless the payment has duly been made by the defendant and the receipts are genuine, the defendant has not discharged its onus which is cast heavily upon them.

27. The main attack of Mr. Ghose on these two receipts is that they are not duly cancelled or defaced in any effectual manner and as such the documents are unstamped and should not be looked into by the court. Mr. Ghose strongly relies on a case reported in : AIR1974Bom256 which is a single bench judgment and decides, that by drawing two parallel lines the stamp cannot be cancelled. Similarly, even by crossing, the stamp cannot be cancelled or defaced. Mr. Ghose also relies on : AIR1957Cal709 and other cases which have been referred to in these two judgments.

28. Mr. Bhabra on the other hand drew my attention to Section 2, Sub-section (23), Section 3, Section 12(3), Section 7, Section 35(b), Section 36, Section 61 and Article 53 of the Stamp Act. According to him, after a document has been admitted in evidence as in this case, further argument that it is unstamped or insufficiently stamped is not available to any party even though it was admitted subject to objection as in this case. Mr. Bhabra further argued that the word in the section is that it should be 'cancelled in an effectual manner' and crossing of stamp is according to Mr. Bhabra an effectual manner of defacing it and he also drew my attention to Sec. 35(b) of the Stamp Act under which even if insufficiently stamped, a receipt can be admitted into evidence on payment of a fine of Re. l/-by impounding it. He has drawn my attention to : AIR1963AP378 ; and (1902) ILR 24 All 374 (FB). I have considered the arguments and the cases referred to from the Bar and I am of the view that the stamps in Exts. 1 and 7 have been effectively cancelled by crossing them. Cross is usually a sign of cancellation. In my view, therefore, the argument that the document has not been properly cancelled and hence it is unstamped is not available to the plaintiff and should be rejected,

29. Another point put forth by the plaintiff is the physical features of the receipts. But before examining the physical features of the receipt, I should remember that when these receipts were alleged to be granted to the defendant by the plaintiff as alleged, Mr. Gour the husband of the plaintiff was the Managing Director of Indo-Dan Milk Products which belongs admittedly to the Agarwalla group who are also partners or proprietors of the defendant firm. Therefore, ordinary precautions which are expected to be taken against other strangers or other persons may not be so strongly observed in the case of the wife of the Managing Director of a sister concern and so, the usual rigours or formalities of a receipt might not be strictly observed in the present case. At the relevant time, 23rd of May, 1970 or 16th of October, 1970, the husband of the plaintiff was very much the Managing Director of Indo-Dan Milk Products. Considering this, it is quite expected that the defendant would be satisfied to have some sort of a document signed by the Managing Director's wife to show that she has received the money. It is significant that the plaintiff has admitted that the signatures on Exts. 1 and 7 are her own signatures and in answer to questions she stated the reason why she has not signed these receipts. Ext. 1 dated 23rd May, 1970 because on the 23rd May, 1970 she was in Kurnul and she did not sign the receipt dated 16th October, 1970 though she was in Calcutta on that day, because she never visited the defendant's office at India Exchange Place ever in her life and therefore she could not have signed the receipt at the office of the defendant firm on the 16th October, 1970 as alleged by the defendant. She categorically says that these are the reasons why she denies that she ever signed these receipts though she admits her signatures.

30. Now, coming to the physical features of the receipts, I have examined them and though it is clearly evident that the lower portion of the receipts perhaps were torn or cut but the top portion does not show that at least not so prominently that the top portion was also torn or cut from a big piece but the bottom portion clearly shows at least in Ext. 7 that it was torn or cut from a big sheet of paper. The plaintiff's suggestion is that these were prepared from a portion of the duplicate income-tax returns which she signed and gave to the defendant which the defendants kept with them. To start with, the defendant came out with this story that they had nothing to do with the plaintiff's income-tax returns except casually going to the income-tax office and when some request is made to Paramanand to file it to the income-tax office he might have filed it on behalf of the plaintiff but he never dealt with the income-tax affairs of the plaintiff. I must say that I do not accept the testimony of Paramanand Agarwalla in this respect. I have no doubt that Paramanand Agarwalla as the Manager of the defendant firm was really dealing with and looking after the income-tax affairs -- for whatever reasons it may be -- for the plaintiff, but dealing in income-tax affairs is one thing and manufacturing receipts from the income-tax returns is an entirely different thing. I could have understood if the plaintiff had produced before me any duplicate of income-tax returns signed by her from which it was possible for the defendant to manufacture such receipts. I have seen certain income-tax returns filed by her in the Income-tax Department which were produced by the defendant from the Income-tax Department by an Officer which shows that she has signed at the bottom portion of her returns. So, if the receipts are to be prepared from the bottom portion, then the top portion must be torn or cut and not bottom portion. But as I have stated before, the receipts, as they are and as they appear to me, do not show that the top portion was torn or cut as Ext. 7 prominently shows that the bottom portion was really cut or torn. As a matter of fact, Mr. B. K. Ghose while making his submissions at the first time stated that the two sides and the bottom have been torn or cut but did not say anything about the top portion though he thereafter corrected it by saying that according to him the top portion was also cut and torn. Another attack made on the physical features of these receipts by Mr. Ghose was that some portion of the signature is under the stamp. I have seen these two receipts against the light and by magnifying glass. True, in one of the receipts some portion of 'S' of Sumitra may be under the stamp but in the other receipt no portion is under the stamp. But none the less even if some portion of the signature is under the stamp, I do not understand bow it helps Mr. Ghose. It is true that the signature and stamping, i.e. cancelling the stamp should be done simultaneously, but that does not mean that stamp must invariably be put before the signature is made. Perhaps, in one case the signature is made and immediately thereafter the stamp is put and cancelled. I did not see any point of Mr. Ghose in this respect.

31. Now coming to the defence of alibi, according to the plaintiff Mrs. Sumitra Debi Gour, on the 23rd May, 1970 when the defendant is stating that the plaintiff has signed and made over this receipt Ext. 1 to Paramanand in the office of the defendant firm, the plaintiff says that this story is a complete lie because on the 23rd May, 1970 Mrs. Gour was in Kurnul about 1,000 miles away from Calcutta. Needless to say that if this fact is accepted by the Court, that gives a complete answer to the defendant's case that it was signed by the plaintiff on the 23rd May, 1970 in Calcutta. In respect of this case of alibi, Mr. Bose wanted to rely on suggestions made by the plaintiff's counsel Mr. M N. Dutt to Paramanand that from 23rd May, 1970 to 16th October, 1971 Mr. Gour was not in Calcutta. The impression I got is that Mr. Bose is trying to take undue advantage of an accidental slip made by Mr. M. N. Dutt in making such a bald suggestion. It was obvious that Mr. Dutt made certain mistake or error while he made those suggestions. It was evident by reading the evidence as a whole, the case that was really made by the plaintiff was that on the relevant dates, i.e. on 23rd May, 1970 and on 16th October, 1970 Mrs. Gour was not present in the office at P-38, India Exchange Place, Calcutta, and did not sign the receipts as alleged by the defendant.

32. Now, coming to 23rd May, 1970, in support of the defence of alibi, the plaintiff relies on certain entries in her father's diary. As I said, I admitted this diary partly because Mr. Bose the counsel for the defendant admitted the entries in the diary as disclosed by the plaintiff being Ext. 35, but none the less I have no doubt that this is a genuine diary written by the father of the plaintiff and the genuineness of which has not been challenged by Mr. Bose. Mr. Bose's only suggestion was that taking advantage of the pecuniary circumstance of the father the daughter made him to write the false entries. I must say at the outset that I reject this suggestion of Mr. Bose which has no foundation and seeing the daughter i.e., the plaintiff, in the box I am unable to hold that the daughter is capable of making such undue influence on the father which would possibly prompt the father to make such false entries in the diary. But the point is not the genuineness or otherwise of this diary. The whole case of alibi of the plaint so far as 23rd May, 1970 is concerned is that she was in Kurnul on the 23rd May, 1970. Unfortunately, the diary entries which have been disclosed by the plaintiff do not show that on 23rd May, 1970 Sumitra Debi Gour was in Kurnul. As a matter of fact, no entry dated 23rd May, 1970 in the diary has been disclosed or proved before me.

33. In the entries that have been disclosed there are various other different dates from 21st April, 1970 upto 2nd June, 1970. But the relevant dates in the diary entries 'X' 18 + 'X' 19 which are nearest to 23rd May are 18th May & 25th May. Even 18th May does not give any definite indication that Sumitra Devi was there but only written Sumitra Rs. 10/- and again on 25th May the entry is only written Sumitra Rs. 10/- which do not strictly prove that Sumitra was at Kurnul on those two dates. But none the less it is quite possible for Sumitra to be in Calcutta on the 23rd May and at Kurnul on 18th and 25th though it is very doubtful from these entries Ex. 35 that she was in Kurnul even on the 18th May or 25th May. There are other aspects of her alleged visit at Kurnul which I may mention passingly that the father as it is admitted was in financial hardship and had to take moneys from his daughter for their upkeep. Even then for no plausible reason the daughter suddenly after 10 years takes upon herself the duty to visit her father who was living with her step-mother and her stepbrother and sister and none the less she not only goes herself but takes an escort with her to live with her impecunious father for a month and a half for no convincing reason. According to the plaintiff she and her escort remained in Kurnul for about a month and a half instead of this financial condition of her father though father was not there at most of the time and no cogent or plausible reason is available to satisfy the Court that there was any necessity for her to stay for such a long time. However these are certain remarks made which I have mentioned passingly. Even if the diary entries are admitted it may only prove that she went to see her father sometime in late April and also may be there in early June.

34. Mr. Madan Mohan Gour wanted: to say at first from the witness box that he was not there in Calcutta on the 23rd May and 16th October to receive the payment as alleged by the defendant. But under stress of cross-examination when he was confronted with the documents -- the vouchers, air-tickets Ex. 18 etc. he had to admit that he perhaps was present in Calcutta on 23rd May and 16-10-1970. But Mr. Madan Mohan Gour from his demeanour has given me a poor impression of himself and to my mind be was not candid to Court and did not speak frankly and truthfully about non-presence of Sumitra Devi or himself to receive the payment at the office of the defendant firm as alleged by the defendant Sumitra Devi's answer was that I never in my life visited the office of my husband. As pointed out by the defendant there is no earthly reason why she would not visit the defendant firm. She is not a pardahnasin lady. She was moving here, there and everywhere. She was appearing before income-tax department, she was appearing before the Notary Public, she was coming to the High Court and thus she was going everywhere. But there is no plausible reason why she would not come to her husband's office as alleged by her. From her evidence certain amusing things appear. From the documents it has been proved that the address which she had given before the Income-tax Officer was not the real address. It was proved when she wrote to the Income-tax Officer that she was doing a business of money-lending. She was in fact never doing any business of money-lending. She stated before the Income-lax Officer in her letter Ex. 36 that she was advancing money on pledge of ornament. She stated from the witness box, 'yes the signature is mine on this document. But I never did any business of money-lending or pledge of ornaments.' These are amusing things she told from the witness box being quite contradictory to the documents admitted by her and signed by her. From all these I have no hesitation in stating that as she herself had accepted that she said whatever her husband asked her to say, she had done whatever her husband had asked her to do and she went wherever her husband had asked her to go and 1 do not accept her statement that she never visited her husband's office on the 23rd May or 16th October to receive payment.

35. But there are two other rather unusual incidents which appear to me at the outset, firstly is that the vouchers being exhibits Nos. 2 and 8 prepared at the time of payment of the receipts being exhibits 1 and 7 do not bear the signature of the plaintiff which ordinarily should have contained the signature of the plaintiff. Parmananda Agarwalla says that well I made over the amounts and I have signed the vouchers and I did not consider it necessary to get the lady's signature on the vouchers. I must say this is perhaps not a prudent conduct. But Madan Mohan Gour admitted that the vouchers Ex. 14 in respect of the travelling allowance for his coming to Calcutta from Delhi were not signed by him. Similarly it is quite possible that these vouchers being exhibits 2 and 8 were not signed by Sumitra Devi. Perhaps the reason is the same for one being the Managing Director and the other being his wife and so the defendants were not so cautious or punctilious.

Another point is that the Managing Director instead of calling the Manager to his own room in his office at No. P.38 India Exchange Place why will he go with his wife to the Manager's room. This is not done ordinarily. But according to the evidence the room where Parmananda was sitting was the room of the senior partner of Agarwalla Group Mr. Jhumurmall Agarwalla who was residing on the upstairs and he being the senior partner I don't think there is any impediment for the Managing Director to go into the room of the Senior partner of the firm which is of course also occupied by Parmananda.

Therefore I accept these two receipts as genuine and signed by the plaintiff which corroborates fully the defendants' plea that the loan has been fully paid and so in my opinion the defendant has discharged his onus of due payment of, the loan and advanced to the plaintiff.

36. Before I conclude the judgment I should refer to another aspect of the matter. Yesterday i.e. on the 20th day of the hearing of this case after the end of the argument Mr. N. N. Dutta the learned Counsel on behalf of the plaintiff moved a chamber application. It was a chamber summons taken on that very day and both Mr. Dutta and Mr. Bose agreed that the chamber application may be disposed of then and there and Mr. Bose stated that it should be recorded that he is not admitting any of the facts alleged in the petition and both the parties agreed that I should hear the application then and there. In the application a prayer was made that I should call Sm. Shila Sharma and Smt. Chandra Sharma the two ladies as court witnesses to depose before me to have the truth in respect of the diary and another prayer was that they should be examined regarding the conduct of the defendants in tampering with the evidence and also asking that this Court should issue a Rule suo motu against a partner Ramesh Agarwalla of the defendant firm for contempt of the Court. Mr. Dutta admitted that the said Shila and Chandra were not then present in Court but they were present in Court on the 11th July when Mr. Ghosh verbally pointed out to the Court that they were present in Court and produced a letter and a telegram. However the letter of 4th July as Mr. Bose pointed out states about some incident of the 3rd July. But according to Mr. Bose the evidence on behalf of Mr. Bose was concluded on the 25th June 1975 and thereafter the plaintiff's witnesses had been examined. Therefore on the 3rd July there was neither any possibility nor chance for the defendants to call any further witness. Needless to say that the plaintiff never intended to call her step-mother Chandra and her step-sister Shila to give evidence in this case. They were not called by her at all. Therefore at this belated stage to make such application in my opinion is for no other purpose than to delay the bearing. Apart from anything else I have seen the letter of Shila which does not bring any proper meaning. In one sentence she says that at that time mother was not at home and in the next sentence she says that mother requested her. Apart from anything else considering the entire facts and circumstances of this case I don't think there is any merit in this application. Mr. Ghosh cited a case today reported in (1946) 2 Mad LJ 141 = (AIR 1947 Mad 58) viz. Chinnaswami Thanjiroyar v. Pichai Maricar. But I don't think this case is of any assistance to him, Therefore considering all the arguments and documents in this case I dismiss that chamber application. In my opinion, the defendant has discharged its onus and I answer the issue no. 1 in the affirmative. Therefore the suit fails and is dismissed with costs. Since I have delivered the judgment in this matter there are other two suits between the allied and/or the same parties. So it seems it will appear better if I do not take up those two suits between the same parties. Therefore I am releasing them from my list and I am giving liberty to the parties to get the assignment to some other learned Judge from His Lordship the Chief Justice. Suit dismissed.


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