NALLATHAMBI Vs. NALLUSAMY

JUDGEMENT

(1.) Defendants 2 to 5 in O.S. No. 122 of 2004 on the file of the II Additional Judge, Sub Court, Salem are the revision petitioners. The respondent/plaintiff filed the suit for recovery of a sum of Rs. 1,00,000/- based on the promissory note alleged to have been executed by the first defendant Nallathambi, whose legal heirs are the revision petitioners herein, for the borrowal of a sum of Rs. 1,00,000/-. After commencement of the trial, the revision petitioners filed an application to send the promissory note Exhibit A-1, receipt, Exhibit B-4 and the acknowledgment card Exhibit A-3 to the handwriting expert to find out the age of the ink in the suit promissory note Exhibit A-1 and that petition was dismissed and aggrieved by the same, this revision is filed.

(2.) Learned counsel for the revision petitioners submitted that the respondent filed the suit on the promissory note dated 6.1.2002 alleged to have been executed by Nallathambi and prior to the filing of the suit, a notice was issued to the said Nallathambi and the said Nallathambi sent a reply stating in detail that he did not receive any money nor executed any promissory note in favour of the plaintiff and he had dealing with Salem Finance and in connection with that dealing, in the year 1984, he executed blank promissory notes and those promissory notes were not delivered even after discharge of the loan amount payable to Salem Finance and that blank promissory notes must have been used by the partners of Salem Finance through the plaintiff and therefore, he was not liable to pay any amount. The learned counsel for the revision petitioners further submitted that during the pendency of the suit, the sole defendant died and the revision petitioners were impleaded as his legal representatives and they have filed the application to determine the age of the ink in the promissory note as well as in Exhibits B-4 and A-3 alleging that the ink of the signature of Nallathambi found in the promissory note has faded whereas the ink of the body of the promissory note is of the recent origin. Therefore, to substantiate the case of the defendants, the application was filed and though the learned Trial Judge relied upon the judgment Elumalai v. Subbaramani, 2011 2 LW 308, without properly appreciating that judgment, dismissed the petition and therefore, the order of the Court below is liable to be set aside. He further submitted that as per the judgment Elumalai v. Subbaramani , facilities are available to find out the age of the ink used in a document and the learned Judge, after referring to the judgment of the Honourable Supreme Court and other Text Book relating to Forensic Sciences in Criminal Investigation, held that the document can be sent for ascertaining the age of the ink and therefore, as per the aforesaid judgment, the relief has to be granted.

(3.) On the other hand, the learned counsel for the respondent submitted that the application was filed only to drag on the proceedings and at the fag end of the trial and no such application was filed when the sole defendant was alive. He further submitted that the suit was filed in the year 2004, the written statement was filed in the year 2005 and the sole defendant died only in the year 2006 and till his death, he has not taken any steps to ascertain the age of the ink found in Exhibit A-1 promissory note and therefore, when the executant did not take any steps to find out the age of the ink, the revision petitioners, who are only legal representatives of the executant, cannot do the same. He further submitted that in the judgment in K. Vairavan v. Selvaraj, 2012 5 CTC 596 , the learned Judge has considered all the earlier judgments on this aspect and also relied upon the opinion of the expert from Central Forensic Sciences Laboratory, Hyderabad and held that there is no facility available in India to ascertain the age of the ink found in the document and held that the application to send the document for ascertaining the age of the ink cannot be entertained. He further submitted that as per the aforesaid judgment K Vairavan v. Selvaraj , the petition is liable to be dismissed and that has been rightly dismissed by the Trial Court.