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TMI Blog2020 (9) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... that he saw the defendant affixing his signature and thumb impression. The defendant who denies the signature and thumb impression, not taken any steps to refer the disputed signature and thumb impression for comparison by experts. The Courts below pointing out this, had compared the disputed signature with the admitted signature found in the vakalat and summon and found to be from same person. Ex.A-1 being a negotiable instrument, the special rules of evidence under chapter XIII of the Negotiable Instruments Act is applicable. Under section 118 of the Negotiable Instruments Act, until the contrary is proved, the presumption of consideration and date are in favour of the plaintiff. The plaintiff burden is only to prove it execution - I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff and promised to repay it on demand with 1% interest per month. He executed Promissory note to that effect in the presence of witnesses. The plaintiff issued notice dated 18/08/2004 demanding the money back with interest. The defendant failed to pay the money inspite of the demand. Hence the suit for recovery of money with interest. 3. The defendant case is that, the alleged pro-note is a forged document. He never borrowed Rs.50,000/- from the plaintiff either on or after or before 10/02/2002. He never executed pro-note for the said imaginary borrowing. In fact the plaintiff s husband Kombaiyan borrowed Rs.70,000/- on 25/07/2002 from one Gunasekaran, who is the son-in-law of this defendant. For recovery of that money, suit in O. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act. The Courts below failed to take note of the money suit for Rs.70,000/- between the husband of the plaintiff and the son-in-law of the defendant. The property of the plaintiff family was brought to auction due to the inability of the plaintiff's husband to clear the decree. This gives strong inference that the plaintiff had no source of money to lend. 8. The main defence taken by the defendant is that the pro-note was not executed by him. The suit is a counter blast to the earlier money suit initiated by his son-in-law against the plaintiff s husband. 9. The plaintiff had discharged her burden of proving the pronote by examining the witness (PW-2) and the scribe (PW-3). In the pro-note Ex.A-1, the signature as well as the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration and date are in favour of the plaintiff. The plaintiff burden is only to prove it execution. In this case, the plaintiff had satisfactorily proved the execution through PW-2 and PW-3. Thus the burden has shifted to the defendant to prove the contrary. He has not taken any steps to positively prove the contrary. In the said circumstances, the Courts below after recording the reason for invoking section 73 of the Evidence Act had proceeded to arrive at a conclusion. 12. Section 73 of the Evidence Act permits the Court to compare the signature though rarely, in the absence of initiative from the defendant to call for the experts. The Court to satisfy itself, has to exercise its power under section 73 of the Evidence Act. It is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of fact to be proved in each case. 13. The defendant though had pleaded that the pro-note was not executed by him, he has not placed any acceptable proof to disbelieve the ocular evidence of PW-2 and PW-3. The best way to disprove is by calling the expert. This option was not exercised by the defendant. 14. In Chelladurai vs Velmurugan reported in 2014 (4) CTC 606 , this Court on an identical facts held that, The respondent herein/plaintiff, who filed the suit based on Ex.A1 promissory note, has let in sufficient evidence through himself as PW1 and another person as PW2 in proof of its execution of Ex.A1 and passing of consideration. Both of them have also identified the signatures found therein and also the thumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compare the disputed signatures with the admitted signatures. It happens not infrequently that in spite of evidence rendered, the Court cannot help comparing handwriting or signature with their own eyes for the proper assessment of the value of the total evidence. 16. Hence this Court is of the view that this is a fit case to exercise section 73 of the Evidence Act, and find no error in Appellate Courts judgment. 17. In so far as the money dispute between two other parties namely the husband of the plaintiff and son-in-law of the defendant arising from a different transaction, they are not a relevant fact in this case. The learned counsel for the appellant submitted that at the relevant point of time the husband of the plaintiff wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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