Sri Muddegowda Vs Sri Bhime Gowda

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 23.03.2020 PASSED IN R.A.NO.73/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC AT BHADRAVATHI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 17.07.2018 PASSED IN O.S.NO.113/2011 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC AT BHADRAVATHI.

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THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 10.07.2025, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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CAV JUDGMENT

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Heard the learned counsel for the appellant. The learned counsel for the respondent did not choose to argue the matter and hence taken as nil.

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This second appeal is filed against the divergent finding. At the first instance, the Trial Court dismissed the suit in O.S.No.113/2011 and the same is reversed by the Appellate Court in R.A.No.73/2018.

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The factual matrix of the case of the

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plaintiff/respondent before the Trial Court is that the defendant had borrowed a sum of Rs.90,000/- from the plaintiff on 12.07.2010 and agreed to repay the same with interest at 12%

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per annum on demand or to his order and executed an On Demand Promissory Note with Consideration Receipt in favour of the plaintiff on the same day. Inspite of the demand made by the plaintiff, the defendant failed to repay the amount. During the pendency of the suit, the defendant died and hence the wife

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of the defendant was brought on record. In view of non payment of the amount, the suit is filed.

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The defendant appeared and filed the written statement contending that the plaintiff was stranger to him. He denied the borrowal of sum of Rs.90,000/- and execution of On Demand Promissory Note with Consideration Receipt. It is his contention that the plaintiff has filled the contents in the suit document in collusion with persons who are inimical to him. The plaintiff is a stranger to him and he has never entered into any transaction with the plaintiff. It is the specific contention of the defendant that one Smt. Shanthamma, wife of Sri K.N.Boregowda @ Bettegowda, had been running chit business in the year 1996 and she had obtained one blank signed On Demand Promissory Note with Consideration Receipt and also one blank signed Rs.10/- bond stamp paper from the defendant and his wife Smt. Uma M.T. as witness. She had also filed a suit in O.S.No.472/1999 against the defendant and Smt. Uma M.T. on the basis of the said Rs.10/- blank signed stamp paper and sought specific performance of contract in respect of the defendant’s property. The said Smt. Uma M.T. had seriously

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contested the said suit and later she had not pressed the suit in 2010. The said suit was filed with an intention to make wrongful gain and hence prayed the Court to dismiss the suit.

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The Trial Court having considered the pleadings of

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the parties, framed the following issues:

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1. Whether the plaintiff proves that the defendant has executed a DP Note with consideration receipt on 12.07.2010 for Rs.90,000/- as alleged?

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2. Whether the defendant proves that the said DP Note is not supported with any consideration?

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3. Whether the plaintiff is entitled for the suit claim?

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4. What order or decree?

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The plaintiff in order to prove his case examined

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himself as P.W.1 and also examined two witnesses as P.W.2 and P.W.3 and got marked the documents at Exs.P.1 and 2. On the other hand, the defendant examined himself as D.W.1 and examined two witnesses as D.W.2 and D.W.2 and got marked the documents at Exs.D.1 to 14. The Trial Court having

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considered the material available on record, taken note of that no notice was issued before filing the suit and also not produced any such notice before the Court. The Trial Court also taken note of that P.W.1 has admitted that Ex.P.1 is the old pronote, but again says that it is one year old. The Trial Court also taken note that at the time of advancing the loan, one Jayamma was present and she has introduced the defendant, but she was not examined and for the first time in the cross-examination, he has stated the purpose for which the money was lent. P.W.1 also states that there are corrections in Ex.P.1 and also he has admitted that the pronotes of 1990 would be ended in 2000 and the pronotes of the year 2000, the year he shown as 2000. In the cross-examination, he admitted that the very defendant himself had signed the signature of his wife and hence comes to the conclusion that if the transaction was real and genuine, the plaintiff could have objected there itself when the defendant had put his wife's signature. The Trial Court also taken note of the Commissioner report, which clearly discloses that the same was not written on the very day and opinion also extracted in paragraph No.30 of the Trial Court’s judgment and did not choose to examine the Commissioner though filed the written

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statement and also accepted the contention of the defendant relying upon the document of Exs.D.1 to 14, which fortify the case made out by the defendant and dismissed the suit.

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Being aggrieved by the said judgment and decree, an appeal is filed before the Appellate Court in R.A.No.73/2018. The Appellate Court having reconsidered the material on record and also the grounds which have been urged in the appeal memo, formulated the point whether the impugned judgment and decree is erroneous, illegal and called for interference, and answered the same in the affirmative and reversed the finding of the Trial Court in coming to the conclusion that this legal presumption would arise to the negotiable instrument when the document is proved or admitted as negotiable instrument. The defendant has not denied the signature on Ex.P.1. A perusal of contents of Ex.P.1 satisfies the ingredients of definition of On Demand Promissory Note. As statutory presumption remains until the contrary is proved, it is rebuttable in nature. Once the defendant succeeds to prove non-existence of liability for issuing such instrument to the plaintiff, the burden shifts upon the plaintiff to prove the liability of the defendant and issuance of such promissory note for discharging said liability. The defence

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made out by the defendant is that the plaintiff has misused the blank signed On Demand Promissory Note given by him to the sister of the plaintiff, by name Shanthamma during chit business in the year 1996. In order to substantiate the said defence, the defendant has mainly relied upon the report of the Commissioner submitted in the case and in addition to that, evidence of the defendant, present defendant and evidence of one witness.

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The Appellate Court also taken note of Ex.P.1 and the report of the Commissioner and held that without marking the Commissioner report as an exhibit, without the Commissioner being examined in the case, the said Commissioner report can be taken as evidence in the case. An observation has been made that if the expert given his report, he shall necessarily be examined to rely upon his report. But if the expert has given his report as Court Commissioner, his report can be admitted in evidence without examining him as witness before the Court. In this case, even though the plaintiff has made attempts to secure the Court Commissioner to examine, he has not become successful in his effort to secure the Commissioner before the Court to examine him in this case with reference to the objections raised by him to his report.

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Hence, the report of the expert as the Court Commissioner has been rightly admittedly as evidence on record by the Trial Court for appreciating the case on record. The duty of an expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusions, so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The quality of opinion would depend upon the soundness of the reasons on which it is founded. But the Court cannot afford to overlook the fact that science of identification of handwriting is an improper and a frail one and compared to the identification of fingerprints, Courts have, therefore, been wary in placing implicit reliance on such opinion evidence and comes to the conclusion that it is only a opinion evidence. It cannot be considered as substantive evidence; it requires corroboration with any direct evidence or circumstance evidence and hence comes to the conclusion that relying upon the Commissioner report is erroneous.

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The First Appellate Court has also taken note of the

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fact that in the cross-examination, D.W.3 has admitted that one Shanthamma had filed O.S.No.10/2003 against her for recovery

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of money and the said suit has been decreed. She has not deposed anything in respect of the chit transaction by Shanthamma by receiving signed blank pronote and stamp paper and hence did not accept the evidence of D.W.3 and comes to a conclusion that relying upon the documents produced by the defendant by the Trial Court is erroneous. An observation is made that the defendant has not produced the result of their police complaint and mere filing of complaint itself is not enough and comes to the conclusion that the Trial Court has not appreciated the case of the plaintiff with reference to the special rule of evidence applicable to the Negotiable Instruments Act and not discussed anything in respect of presumption to the Negotiable Instruments Act as per the provisions of Section 118 of the Negotiable Instruments Act and allowed the appeal and set aside the judgment of the Trial Court and directed the defendant to pay the amount with 12% interest.

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Being aggrieved by the said judgment, the present second appeal is filed before this Court.

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This Court having considered the grounds which have been urged in the second appeal, admitted the second

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appeal on 05.02.2021 and framed the following substantial questions of law:

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a) Whether the First Appellate Court is justified in interfering with the Issue No.1 in O.S.No.113/2011 on the file of Principal Civil Judge and JMFC, Bhadravathi?

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b) Whether the First Appellate Court is justified in considering the scope of Section 118(a) and (b) of Negotiable Instruments Act, 1881?

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The learned counsel for the appellant in his arguments would vehemently contend that the suit was dismissed by the Trial Court and the Appellate Court reversed the same and while reversing the same, committed an error in not properly appreciating the material on record, particularly the Commissioner report. The Commissioner report is very clear that the contents of the documents are in different time and not at the time of issuance of alleged pronote. The learned counsel would contend that no objection is filed to the Commissioner report and also not examined the Commissioner before the Court when the report goes against the plaintiff. The learned counsel also contend that the suit was filed within six months and the

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alleged pronote was of the year 2010 and also while filing this suit, no notice was given. The learned counsel would contend that it is categorically admitted that the document Ex.P.1 was old one and the evidence of P.W.2 is contrary to the evidence of P.W.1. The learned counsel would contend that the document is altered and hence the very document is doubtful and when such being the case, the question of presumption does not arise.

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The learned counsel in support of his arguments relied upon the judgment of this Court in the case of N.NARAYANASWAMY v. MADANLAL reported in AIR 1982 KARNATAKA 227, wherein it is discussed with regard to blank filled up by promises without promisor’s consent was material alteration. The learned counsel brought to the notice of this Court the discussion made in paragraph Nos.18 and 19 regarding material alterations. The learned counsel would contend that it is the specific case of the appellant that the document was given to the sister of the plaintiff when she was running the chit business in year 1996 and also admitted regarding the material alterations.

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The learned counsel also relied upon the judgment of

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the Apex Court in the case of RAJESH JAIN v. AJAY SINGH reported in AIR 2023 SC 5018 and brought to the notice of this Court the discussion made in paragraph No.43 regarding shifting of burden. The learned counsel would contend that the signature is admitted, but specific defence was taken that the same was given to the sister of the plaintiff for chit business and the witnesses who have been examined before the Court, particularly D.W.3 deposes that the sister of the plaintiff was running the chit and police complaint was also given against the sister, since she had filed a suit for specific performance and the same was withdrawn when the case was contested. All these factors were not taken note of by the First Appellate Court while reversing the judgment of the Trial Court. Hence, this Court has to reverse the finding of the First Appellate Court.

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The learned counsel for the respondent did not choose to argue the matter inspite of an opportunity was given. On 25.06.2025, when the learned counsel for the respondent was absent, this Court made it clear that if the learned counsel for the respondent does not appear on the next date of hearing, the matter will be heard in his absence. Accordingly, when he

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was not present on the next date of hearing on 10.07.2025, heard the matter in the absence of the learned counsel for the respondent.

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Having considered the grounds which have been urged and also the substantial questions of law framed by this Court, this Court has to re-analyze the material available on record, since there is a divergent finding. The first substantial question of law is with regard to reversing of issue No.1 i.e., whether the First Appellate Court is justified in reversing issue No.1, that is, whether the plaintiff proves that the defendant has executed a DP note with consideration receipt on 12.07.2010 for Rs.90,000/- as alleged? The second substantial question of law is whether the First Appellate Court is justified in considering the scope of Section 118(a) and (b) of Negotiable Instruments Act, 1881 i.e., presumption with regard to the issuance of consideration receipt.

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It is the case of the plaintiff that the defendant borrowed a sum of Rs.90,000/- by executing a document of Ex.P.1 i.e., On Demand Pronote with Consideration Receipt and also agreed to pay the interest at 12% per annum. The

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Commissioner report is also obtained before the Trial Court. The Commissioner report in part II is with regard to physical and chemical examination of inks of the body writings, defendant’s, witnesses’ and scribe’s signatures on disputed document Ex.P.1. Ink of the body writings (contents), defendant’s signatures, witnesses’ signatures and scribe’s signatures in Ex.P.1. On physical examination of the above inks show that signatures of defendant, witness No.1 and witnesses No.2 are written in blue inks. Body writings (contents) on the document and signatures of scribe are written in black inks. Inks of above all the signatures and writings under consideration are ball-point inks. Inks of the body writings and scribe’s signatures are not compatible for comparison for chemical test for relative aging with the defendant’s signatures Ex.P.1(a), P1(b) and signatures of witness Nos.1 and 2 due to non-similarity. Inks of body writings and signatures of scribe are in black ball-point ink, hence compatible for mutual comparison of relative aging. The chemical examination is that the ball point inks of defendant’s signatures Exs.P1(a) and P1(b), witnesses’ signatures Ex.P.1(e) and P1(f), scribe’s signatures Ex.P.1(c) and Ex.P.1(d) and body writing (contents) are tested for solubility or extraction for

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ascertaining their relative age on paper. These writings are separately tested by using alcohol and the pyridine as solvents. Firstly alcohol was used as a solvent, at points marked ‘A’ on the small parts of the writings.

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Having considered the alcohol test and secondly the pyridine test, comes to the conclusion that the physical examination of writing strokes, condition of document, folds/creases and stain tinge marks on Ex.P.1 show that body writings and signature of witness No.2 were written after various folds/creases and stain marks developed on the document of Ex.P.1 whereas signatures of defendant and witness No.1 on the document do not show that they were written on physically deteriorated and damaged document. In short, defendant’s signature Ex.P.1(a) and Ex.P.1(b) were executed on fresh document without folds/creases and stain tinge marks whereas body writings and signature of witness No.2 were written later on the folded/creased or stained document. That the chemical examination of the inks on documents Ex.P.1 show that the relative age of the inks of signatures of the defendant and witness No.1 i.e., Ex.P.1(a), Ex.P.1(b) and Ex.P.1(e) on paper to be more than the ink of the signature of witness No.2 Ex.P.1(f).

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The inks of body writings (contents) and scribe’s signatures on paper to be relatively of similar age.

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This report was taken note of by the Trial Court and comes to the conclusion that the aging of the writings are not at the same time. The body contents are later staged and signature of Ex.P.1(e), 1(b) and 1(a) are old one and subsequent signature of the witness No.2 i.e., Ex.P.1(f) are later one and hence comes to the conclusion that the Commissioner report supports the case of the defendant’s defence and also taken note of the evidence which have been placed before the Trial Court.

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It is important to note that P.W.1 in the crossexamination categorically admits that the document Ex.P.1 is old one. But again says that it was one year old and also categorically admits that the advocate was got introduced by his sister Shanthamma. With regard to the source of income is concerned, he says that he was having account in the bank, but no balance in his bank account. A suggestion was made that his sister Shanthamma was running chit and he did not categorically deny that she was not running any chit, but only says that he was not aware of the same. A suggestion was made that his

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sister had obtained pronote as well as blank stamp paper and he only says that he is not aware of the same. It is his specific defence that the said pronote was given in the year 1996, but he admits that it was old one. It is also his evidence that one Jayamma got introduced the defendant to him and at the time of demand of loan, she was very much present and no one was there at that time and did not examine her, since the defendant was got introduced through Jayamma. It is the case of the plaintiff that the defendant borrowed the money to meet his family difficulties and again says that for the purpose of children education. He admits that for the first time he is deposing that the amount was borrowed for the purpose of education of the children. Hence, it is clear that the plaintiff is not sure why the defendant was in need of money and for the first time, introduced the theory of borrowing the money for the education of the children. It is important to note that P.W.1 categorically admits that his sister Shanthamma only got introduced the advocate. It is also important to note that it is the specific case of the plaintiff that at the time of lending the money, witness Gangadhar was also present and those two witnesses have been

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examined before the Court i.e., witness as well as the scribe of the document.

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P.W.2 is the scribe and he identifies the signature and he also categorically admits that Ex.P.1 is old document and the admission on the part of P.W.2 is also very clear that the same was old document. But he claims that when the document was given to him, he used to write the same and he cannot tell whether Ex.P.1 was old one or new one. He volunteers that it may be of the year of 1990 and this evidence was also not taken note of by the Appellate Court when the witness P.W.2 volunteers that it was the document of the decade of 1990. But, the present document, according to the plaintiff was executed in the year 2010. It is suggested that 1990 decade documents are now not available and the same was denied. But he says that the 1990 documents were also used and obtained his assistance for documentation. He also admits that his signature and remaining witnesses signatures inks are different. The very scribe categorically deposes regarding nature of the document.

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P.W.3 is the witness to the said document and when

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a suggestion was made to P.W.3 that the document Ex.P.1 was

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old one, he gives an explanation that because of folding of the

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same, appears to be as old. This evidence is contrary to the evidence of P.W.1 and P.W.2 and there is an improvement in the evidence of P.W.3 regarding document was old one. He admits that in Ex.P.1, it is mentioned as 1990 and when a suggestion was made that the said document was old one prior to 2000, the witness says that he cannot say the same, but only says that his signature is available.

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The other witnesses are D.W.1 to D.W.3. D.W.1 categorically denied the very execution of the document and he says that he gave the document when the chit was taken, but no document is produced for having subscribed the chit and the sister of the plaintiff Shanthamma is still alive and relies upon the material regarding Shanthamma had filed a case in O.S.No.479/1999. He also admits that in that case he gave the deposition. He admits that he did not mention the date and in whose presence the document was given to Shanthamma. He also admits that he gave the complaint to the police against Shanthamma in 2003 through his wife and no notice was given prior to giving of such complaint. He claims that after filing of suit in O.S.No.479/1999, he has demanded to return the pronote

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and in the evidence he deposed the same. He admits that Shanthamma withdrew the said suit. It is important to note that when the very Shanthamma had filed the suit, the same was withdrawn and the same was taken note of by the Trial Court.

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The other witness D.W.2 is the wife of the defendant. In the cross-examination, she admits for having given the documents to Shanthamma and not obtained any endorsement. A suggestion made to her that her husband availed the loan was denied.

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The other witness is Smt. Shivamma D.W.3, who claims that the said Shanthamma was running the chit and while running the chit she used to take signatures on the blank papers and also used to take pronote. D.W.3 categorically says that she was a subscriber of the chit from 1990 with Shanthamma and also gives the details of taking of the chit in 1996 and so also in 1992 and 1994. It is also her evidence that the said Shanthamma filed a case against her through her husband and the same was dismissed. In the said case, she did not file any written statement and also she was not examined. D.W.3 admits that she had filed a criminal case against Shanthamma

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and Bettegowda and the wife of the defendant deposed on her behalf. The wife of the defendant also filed a criminal case and the same is elicited from the mouth of D.W.3.

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Having perused all these materials available on record and particularly taking note of the document of Ex.P.1, the reason for availing the loan is mentioned as household contingences. But for the first time before the Court deposed that the loan was advanced to educate the children of the defendant. D.W.2 categorically admits that this document is of the year 1990 and the case of the defendant also that chit was run by Shanthamma and in the year 1996, the said document was given. The plaintiff admits that his sister Shanthamma only got introduced the lawyer. Apart from that, the document of exhibit ‘D’ series clearly discloses that earlier suit was filed by Shanthamma against the defendant in O.S.No.472/1999 and also the very suit, which was filed for the relief of specific performance was withdrawn and what made to withdraw the suit, there is no explanation. The very contention is that the sale agreement was created based on the earlier obtained blank stamp paper and it was created for the purpose of filing of the suit. The written statement in O.S.No.472/1999 is also placed

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on record as Ex.D.3. The affidavit filed by Shanthamma is marked as Ex.D.4. The cross-examination and also the deposition of Muddegowda is marked as Ex.D.5. Ex.D.6 is the sale agreement, Ex.D.7 is the memo not pressing the case. Ex.D.8 is the objections filed to the memo. Ex.D.9 is the complaint filed by defendant No.2 Smt. Uma. FIR is marked as Ex.D.10. All these documents clearly discloses that there was a dispute between the parties from 1999 onwards when the suit was filed for specific performance by the sister of the present plaintiff and the document of promissory note is of the year 2010.

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It is important to note that D.W.2 categorically admits that the said pronote is of the year 1990, but what made to obtain the document after 20 years in 2010 by using the said document of 1990, there is no proper explanation on the part of the plaintiff. It is important to note that this Court already discussed with regard to the age of the document and the contents of the disputed document of Ex.P.1. The Commissioner report is very clear that except the signature on the disputed document by the defendant and witness No.1, other writings and contents of the document are later entries and the same was

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taken note of by the Trial Court. The Trial Court taken note of the Commissioner report, as well as exhibit ‘D’ series documents, which have been marked by the defendant. No doubt, with regard to the chit transaction is concerned, though witnesses D.W.2 and D.W.3 have been examined, no document is placed on record with regard to chit transaction is concerned. The very admission of P.W.1 and P.W.2 that the subject matter of the document of Ex.P.1 is old document and insertion was made, ought to have been taken note of and the very defence of the defendant supports his defence in terms of the report of the Commissioner and though the same is not marked, but the same becomes the part of the records. It is also important to note that when the report goes against the plaintiff, the plaintiff ought to have examined the Commissioner by summoning the Commissioner, but not done the same and the same is also observed by the Trial Court while dismissing the suit. The Trial Court in detail taken note of the material available on record taking note of the ink used in the said document.

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The learned counsel for the appellant relied upon the judgment of this Court in the case of N.Narayanaswamy (supra) regarding the blank filled up by promises without

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promisor’s consent was a material alteration. In the case on hand, in view of the Commissioner report, it is very clear that the contents of the documents are subsequent time and later on the same is noted including the signature of the scribe. In the said judgment, the High Court in detail discussed in paragraph No.19 that if any material alteration in the pronote effected by the promisee when the document was in his custody without the consent of the promisor and as such under Section 87 of the Negotiable Instruments Act, the promissory note becomes void. In the case on hand, in view of the Commissioner's report, the document becomes void.

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The learned counsel also relied upon the judgment of the Apex Court in the case of Rajesh Jain (supra), wherein in paragraph Nos.43 and 44 in detail discussed with regard to the burden of proving and also discussed with regard to the presumption is concerned. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other Sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. No doubt, the Appellate Court invoked the presumptions under Section 118 of the Negotiable Instruments Act, but it is very clear in the

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judgment of the Apex Court that in that case, the Court was dealing with the presumptive clause in Section 118 of the Negotiable Instruments Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint.

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Having taken note of this principle as well as invoking of Section 118 by the Appellate Court, the Commissioner report is very clear with regard to the ink, which was used for filling up of document, which is later one and not at the time of aging of document, which was allegedly executed by the defendant and witness No.1 and when there are differences and scientifically the same was examined, the question of invoking the presumption does not arise when the very document itself is doubtful and the very execution of document on the particular date is doubtful. The Appellate Court committed an error in invoking the presumption. Hence, I answer both the substantial questions of law in the negative that the First Appellate Court was not justified in interfering with

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issue No.1 in reversing the finding of the Trial court and also invoking of scope of Section 118(a) and (b) of Negotiable Instruments Act is erroneous, when there are lot of anomalies available on record and mere document is in existence is not enough to grant the relief.

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The very admission of D.W.1 and D.W.2 that the document is old and particularly when the admission was given by D.W.2 that the document would have been of 1990 and what made to make use of the said document in 2010, there is no any explanation. The witnesses who deposed on behalf of the defendant also categorically deposed that Shanthamma was running the chit business and also a specific defence was taken that she had taken pronote as well as blank stamp paper and when the suit was also filed for the relief of specific performance by Shanthamma based on the stamp paper which was collected, what made her to withdraw the said suit is also not explained. Under these circumstances, it is a doubtful transaction. The Appellate Court failed to consider all these materials on record and committed an error invoking presumptions as well as reversing the finding of the Trial Court and hence I answer the substantial questions of law accordingly.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed.

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(ii) The impugned judgment of the First Appellate Court is set aside. Consequently, the suit dismissed by the Trial Court is confirmed by restoring the judgment of the Trial Court.

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Sd/- (H.P. SANDESH) JUDGE

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MD

Sri Muddegowda v. Sri Bhime Gowda

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