1. This is plaintiff's first appeal against the dismissal of his money suit for recovery of Rs.62,325/- vide judgment and decree dated 24.04.2004 passed by the Court of ADJ, Bhanpura, District Mandsaur in Civil Suit No.2-B/2003.
2. Briefly stated relevant facts are that the plaintiff/appellant instituted a suit against defendant/respondent for recovery of money, mainly, with the allegations that plaintiff and defendant, both, are agriculturists. Plaintiff on 07.06.2000 advanced a loan of Rs.40,000/- to the defendant to meet out marriage expenses. A promissory note was duly executed by the defendant in favour of plaintiff for the same. Rate of interest was fixed at 2.25% per month, as mentioned in the promissory note. Defendant did not make the repayment. Hence, suit for recover of Rs.62,325/-, which included interest to the tune of Rs.22,050/-.
Defendant vide his written statement denied the claim of the plaintiff. Defendant denied to have received the alleged loan and further denied to have executed the alleged promissory note in favour of plaintiff. It has been stated that defendant puts signature and does not put thump impression. It has been further stated that the plaintiff had earlier instituted Civil Suit No.4-A/2002 for perpetual injunction against defendant and his son Bherulal & Durgalal in the Court of Civil Judge, Class-II, Bhanpura. It was based on a forged and concocted mortgage deed, which was produced in the said Civil Suit No.4-A/2002. In the alleged mortgage deed, it was recited that the defendant had received Rs.40,000/- separately in presence of two witnesses. Contrary to this, alleged promissory note is shown to have been executed in presence of three persons. It has been specifically stated that the defendant was not in need of money on 07.06.2000 and the alleged promissory note has been prepared in a forged manner. Plaintiff has already instituted two separate suits against defendant bearing Civil Suit No.9-B/2002 and 8-B/2002 for recovery of Rs.25,000/- and Rs.15,000/- respectively, on the basis of two different promissory notes. All the documents bear the signatures of alleged common witnesses, which establish forgery as well as concoction.
3. Learned trial Judge, after recording the evidence, dismissed the suit of the plaintiff, as having not been proved vide the impugned judgment and decree; hence the present appeal.
4. Shri V.P. Saraf, learned counsel appearing for the appellant and Shri Ajay Vyas, learned counsel for the respondents made their respective submissions, which have been considered in the light of the material on record
5. It has been contended on behalf of the appellant that the plaintiff has proved his case by examining himself (PW-1), Balkrishna (PW-2) as scribe, Suresh (PW-3) and Jagdish Dube (PW-4) as attesting witnesses of promissory note. Defendant, in rebuttal, examined himself.
6. It has been argued on behalf of the appellant that in view of statements of plaintiff as well as scribe and other attesting witnesses, case of the plaintiff stood well established and the same ought to have been decreed in his favour. Learned trial Judge has committed illegality as well as perversity in dismissing the suit by the impugned judgment by disbelieving the plaintiff's witnesses. Learned counsel appearing for the defendant/respondent supported the impugned judgment and decree.
7. After considering the entire material on record, it is observed that the appeal is liable to be dismissed for the reasons assigned in the succeeding paragraphs.
It is almost settled that the duty of a Judge is to decide the controversy in judicious manner and to impart justice thereby. Its duty is not akin to that of umpire or referee, who is expected to give advantage of the faults committed by one party to the adversary i.e. the opposite party. A case is not to be decided by the Court of law, merely on the basis of evidence, when it is opposed to judicious conscience. It is true in the present case that the plaintiff has examined himself, scribe and attesting witnesses to prove the alleged promissory note marked as Ex.P/1, which allegedly bears thumb impression of the defendant. After framing of the issues, plaintiff on 22.09.2003 submitted an application to get examined the thumb impression of the defendant appearing on the alleged promissory note through fingerprint expert. This application was allowed on 27.09.2003 and Shri Abhijeet Sarvate, fingerprint expert was asked to examine the disputed thumb impression of the defendant appearing on the disputed promissory note vis-a-vis the actual thumb impression of the defendant. Shri Abhijeet Sarvate, fingerprint expert was accordingly directed. Report of the fingerprint expert was received by the trial Court, which was taken on record on 27.02.2004. Plaintiff did not examine the fingerprint expert and instead closed his evidence, by examining the attesting witnesses of the alleged promissory note.
8. On perusal of the report of the fingerprint expert dated 09.02.2004, it is found that the fingerprint expert has observed: -
"The ridge flow is quite clear in the impressions. In the questioned the ridge flow is going upper side from right to left whereas in the standards this is not the position and in the standards the ridge flow is rising from left to right.
Thus there is a fundamental difference in the upper side ridge flow in the questioned thumb impression and the two specimens marked as Q-1 and R-1, L-1 on a sheet.
Taking all factors into consideration I am of the opinion that the questioned thumb impression marked Q-1 has not been made by the person who has made the right and left thumb impressions marked R-1 and L-1 respectively.
Note: One fundamental difference either in ridge flow or in pattern is conclusively stablish that the two impressions have not been made by one and the same thumb or digit."
9. Shri V.P. Saraf, learned counsel appearing for the appellant submitted that the report of fingerprint expert is not admissible in evidence, without his statement; secondly, the impression of the disputed thumb was a partial impression, as observed by the fingerprint expert and the report, therefore, cannot be considered.
As regards objection of the appellant about partial impression, it is observed that the same did not come in way of the fingerprint expert for examining the ridge flow in the disputed thumb impression and the specimen thumb impressions, as revealed in the report itself. Thus, this objection has no merit.
10. It is true that fingerprint expert has not been examined in the trial Court. However, the report was invited by the plaintiff himself and has been taken on record, without examination of the fingerprint expert. The same cannot be considered to cause prejudice to the defendant. However, the same is not the case with the plaintiff, who by submitting application obtained leave from the trial Court to get examined the disputed thumb impression with the specimen thumb impression of the defendant on the ground that defendant had taken a plea that he is in the habit of putting signatures and not thumb impression. Science pertaining to examination of fingerprint is quite advanced and is definitely more conclusive than the science relating to examination of signatures. If ridges on thumb impression of specimen differ from those on the disputed thumb impression, they conclusively lead to inference about nongenuineness of the document, if not successfully rebutted by crossexamination. Since the report of the fingerprint expert has been taken on record, plaintiff could have got fingerprint expert declared hostile, and further, could have cross-examined him. This recourse having not been adopted, the report of the fingerprint expert invited by the plaintiff himself, is binding on him, after having been taken on record. The witnesses, at times, may stand un-rebutted due to various reasons, including want of skillful cross-examination.
However, the same cannot be considered as a judicious ground to grant a decree in favour of the plaintiff, when un-controverted contrary report of fingerprint expert is on record. Learned trial Judge is, thus, rightly found to have given precedence to the report of the fingerprint expert to the oral testimonies of the plaintiff and his witnesses, in the facts and circumstances of the case.
11. Consequently, this Court does not find any infirmity in the dismissal of the suit of the plaintiff by taking un-controverted report of the fingerprint expert into consideration. Accordingly, the appeal, being devoid of force, is hereby dismissed, however, with no order as to costs.
C. c. as per rules.