BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/12/2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P(PD).(MD)No.1748 of 2007 and M.P(MD).No.1 of 2008 A.Thomas Xavier ... Petitioner Vs Murugesan ... Respondent PRAYER This Civil Revision Petition is preferred under Article 227 of the Constitution of India, to set aside the fair and decreetal order of the learned Subordinate Judge, Paramakudi, dated 09.10.2007 made in I.A.No.130 of 2007 in O.S.No.15 of 2006. !For Petitioner ... Ms.R.Shivasankari ^For Respondent ... Mr.M.Suresh Kumar *** :ORDER
The petitioner is the defendant in O.S.No.15 of 2006 on the
file of the learned Subordinate Judge, Paramakudi filed by the respondent herein
for recovery of money. It is stated in the plaint that on 01.05.2003 this
petitioner received a sum of Rs.1,50,000/-(Rupees One Lakh and Fifty Thousand
only) from the respondent herein and executed the suit promissory note.
2. In the written statement the petitioner has pleaded that while he
was working in the State Bank of India at Paramakudi, he approached one
Ibrahimshaw, who is a moneylender, to advance loan of Rs.30,000/-(Rupees Thirty
Thousand only) to his friend and the said Ibrahimshaw obtained a blank
promissory note with the signature from this petitioner and thereafter he gave
loan to the friend of the petitioner herein and subsequently the said friend
discharged the amount by paying to the said Irahimshaw and while this petitioner
demanding the said Ibrahimshaw to return the blank promissory note, he told
that it was misplaced and he would return the same after securing it.
3. It is further stated that relying upon the words of the said
Ibrahimshaw, the petitioner did not compel to return the blank promissory note
and now he believes that the said blank promissory note has been utilised by
this respondent and the suit has been filed.
4. The trial in the said suit was started and the plaintiff’s
evidence was over and afterwards, the petitioner filed the application
requesting the Court to refer the said promissory note to an expert in the
Forensic Science Department to ascertain the fact that whether the signature and
the contents of the promissory note were made simultaneously.
5. The petition was resisted by the respondent by stating that the
attestors to the promissory note have been examined and the same has been proved
and only to drag on the case, the petition has been filed.
6. The learned trial Judge has dismissed the application by stating
that the document of the Court shall not be sent out of Court and it is a post
trial step to refer the promissory note for expert’s opinion and it cannot be
entertained.
7. Ms.R.Shivasankari, learned counsel appearing for the petitioner
would submit that inasmuch as already the defence has been raised in the written
statement to the effect that the petitioner has only delivered the blank
promissory note with his signature to one Imbrahimshaw as a security for
advancing loan of Rs.30,000/-(Rupees Thirty Thousand only) to his friend and the
said friend having discharged the loan and the fact that the failure is on the
part of the said Ibrahimshaw to return the blank promissory note, it has become
necessary for this petitioner to establish those facts before the Court and only
if the said promissory note is sent for scientific examination to verify the age
of the signature and that of the other contents of the document made at the
later date, the truth could be unearthed.
8. Mr.M.Suresh Kumar, learned counsel appearing for the respondent
would submit that there is no necessity to send the promissory note for
comparing the age of the signature for the reason that the practice has been
discouraged by this Court by means of earlier decisions.
9. Learned counsel for the petitioner would draw attention of this
Court to the decision of this Court in R.Elango vs. K.Dhanasekaran and others
reported in (2008) 8 MLJ 299, wherein it is observed that a handwriting expert
opinion is of weak value but it shall be considered along with all other
relevant facts and materials. But the facts involved in the decision are not
akin to the facts of this case.
10. Learned counsel for the respondent would garner support from
the decision of this Court in S.Gopal vs. V. Balachandran reported in 2008(1)
CTC 491, wherein the learned Judge after considering the judgment in Rajendran
v. Usharani reported in 2001 LW (Crl.) 319 has observed that once the execution
is admitted, it shall be taken that the cheque was issued by the accused in
favour of the complainant. Further in the decision in Gopal’s case, (supra)
this Court has observed thus:
“It is found that the age of the ink cannot be determined by an expert with
scientific accuracy. Further, the use of old ink manufactured long ago will
definitely create a dent in the opinion furnished by an expert. Therefore,
there is no necessity for sending the disputed cheque admittedly signed by the
petitioner to an expert for his opinion. The order passed by the learned
Judicial Magistrate I, Erode in C.M.P.NO.2915 of 2007 in C.C.No.1287 of 2006
does not suffer from any illegality or impropriety. Therefore, there is no
warrant for interference with the well considered order passed by the Trial
Court.”
11. Considering the view already expressed by this Court as well as
in the considered opinion of this Court, the request of the petitioner cannot be
entertained for the reason that there is every opportunity available for him
before the trial Court to examine his friend for whom the petitioner requested
the said Imbrahimshaw and also Ibrahimshaw before the Court to establish his
contentions and hence the present petition is not maintainable. There is no
infirmity in the order passed by the Court below which is confirmed.
In fine, the Civil Revision Petition is dismissed. Consequently,
connected miscellaneous petition is also dismissed. No costs.
pm
To
1. The Subordinate Judge,
Paramakudi.