Read Order: Baru Ram v. Rajinder alias Topan
Chandigarh, March 11, 2022: While dealing with a case wherein the lower Court dismissed the plaintiff’s suit on the ground that no Fingerprint and Handwriting Expert was examined to prove that thumb impression on the pronote alleged to be executed by the defendant, belonged to the defendant, the Punjab & Haryana High Court has held that the Fingerprint and Handwriting Expert, in the present case,could only render his opinion and it was not binding on the Court.
The Bench of Justice Anil Kshetarpal also added, “The opinion of an Expert cannot be preferred in place of the direct evidence i.e. deposition of a witness of the document.”
The appellant was the plaintiff in a suit for recovery of Rs. 88,075/- filed on the basis of a pronote and receipt dated January 4, 2003. As per the case of the plaintiff, late Sh. Maan Singh (the defendant’s father) borrowed a sum of Rs. 65,000/- from the plaintiff and executed a pronote and receipt in the presence of the witnesses. The defendant contested the suit while asserting that he was the adopted son of late Sh. Maan Singh, never executed any pronote or receipt while borrowing any money from the plaintiff.
In order to prove the execution of the pronote, the plaintiff executed three witnesses, while the defendant examined four defence witnesses. Both the Courts below dismissed the suit on the following grounds that late Sh. Mann Singh being a literate (studied in a school from 1952 to 1956), could not have thumb marked the pronote; no Fingerprint and Handwriting Expert was examined to prove that thumb impression belonged to late Sh. Mann Singh; and lastly, that Baru Ram (the appellant) failed to prove that he had the resources to pay the amount.
From the perusal of the judgments of the Courts below, the Court opined that in those decisions, the provisions of Section 118 of the Negotiable Instruments Act, 1881 were overlooked.
Section 118 of the 1881 Act provides for various statutory presumptions with regard to a pronote.
After perusing the provisions of Section 118 of the NI Act places a reverse burden of proof on the person, who claims that the negotiable instrument is neither executed for consideration nor it was executed on the date on which it is stated to have been executed.
In this legal backdrop, the Court looked in the decision of the Courts below to conclude that the Courts overlooked the documents produced by the plaintiff to prove that late Sh. Mann Singh, while drawing a pension, used to affix his thumb marks on the note-book maintained for distributing the pension. Further, the Court noted that the First Appellate Court also erred while observing that Baru Ram failed to prove his capacity to extend the loan.
In the present case, the Court observed that the total loan alleged was of ₹65,000/-. Both the persons are the residents of the same village and it is not expected from a villager to maintain proper accounts, added the Court. Also, the Court observed that there was no evidence that Baru Ram was having income in excess of the amount required for the payment of income-tax in the relevant year.
Also, on the aspect of non-examination of the handwriting expert, the Court opined that both the courts below erred in laying much stress on the fact that no Fingerprint and Handwriting Expert was examined. The Court observed that such an Expert can only render his opinion and it is not binding on the Court. The opinion of an Expert cannot be preferred in place of the direct evidence i.e. deposition of a witness of the document, held by the Court.
The Court observed that the pronote and the receipt were produced, and it was evident therefrom that late Sh. Mann Singh was alleged to have thumb marked on the revenue stamps affixed on the pronote and receipt.
Lastly, the Court held that before a decree for recovery is passed, the Court is required to record a finding to the effect that the defendant has inherited some property from late Sh. Mann Singh and the same was not examined by the Courts below.
Thus, in this light, the Court concluded that the matter was required to be remitted back to the trial Court for deciding it afresh, after granting the additional opportunity to the respective parties to lead further evidence, if required. Hence, the present appeal was allowed.