- (1.) THIS is a defendants appeal arising out of a suit for recovery of Rs. 2040/- representing principal and interest on account of money advanced to the appellant by the respondent on the basis of a pronote and receipt dated 2-1-1952. It was alleged that the appellant had borrowed Rs. 1,500/- from the respondent and had agreed to pay interest at the rate of Rs. 2/- per cent per mensem and had executed a pronote dated 2-1-1952. The respondent alleged that the amount due on the aforesaid loan had not been paid and, therefore, the suit in appeal was instituted. It was contended on behalf of the appellant that no amount had been advanced by the respondent to the appellant and that the appellants signatures .had been obtained by one Moti Lal on a blank promote. The appellant, however, admitted that he received only Rs. 150/- and alleged that subsequently the amount of Rs. 150/- was converted into Rs. 1500/-. The trial Court held that there was not sufficient evidence to establish that the respondent was a creditor and had advanced Rs. 1500/- to the appellant as contended by him. It further found that there was material alteration and interpolation in the pronote and the receipt which established that the consideration was only Rs. 150/- and not Rs. 1500/-. On the aforesaid finding the trial Court dismissed the suit. The respondent preferred an appeal before the Court below which reversed the decision of the trial Court and came to the conclusion that the respondent had established that Rs. 1500/- had been advanced by him to the appellant and thus decreed the suit. The defendant has now come in second appeal in this Court.
(2.) LEARNED counsel for me appellant contended that the pronote and the receipt itself indicated that alterations had been made in the pro-note and the initial figure of Rs. 150/-. Had been converted into that of Rs. 1500/-. Learned counsel or the respondent contended that the suit was, in fact, not based on the promissory note and that the claim was made for the recovery of the above amount due to the respondent. He further stressed that the finding arrived at by the Court below was a finding of fact and it could not be assailed in second appeal before me. Learned counsel for the respondent further contended that initially the appellant had alleged that there was a partnership between him and Moti Lal and it was Moti Lal who had obtained his signature on a blank pro-note and receipt, it was held by both the Courts below that this plea of the appellant was not substantiated. Learned counsel for the respondent urged that since the aforesaid plea of the appellant has been disbelieved the court below was right in basing its findings on the evidence on the record, which fully established that an amount of Rs. 1500/- had been advanced by the respondent to the appellant. The pronote was executed simultaneously with the alleged payment of Rs. 1500/- by the respondent to the appellant on 2-1-1952. It was alleged in the plaint that the appellant took Rs. 1500/- on 2-1-1952 and agreed to pay interest at Rs. 2/- per mensem and further agreed to pay the amount borrowed on demand by the creditor. It was further alleged that the appellant gave a promissory note and a receipt to the respondent for his satisfaction. The learned counsel for the respondent strenuously contended that the suit was not on the basis of the aforesaid promissory note but was for the recovery of the amount advanced to the appellant and that the promissory note and the receipt had been executed by way of collateral security. I am not prepared to hold that the suit was not on the basis of the promissory note itself. In any case, it is clear that the promissory note and the receipt were executed simultaneously with the amount advanced by the respondent to the appellant and the aforesaid document is undoubtedly a document which was the basis of the claim of the respondent against the appellant. The promissory note and the receipt are on one piece of paper and on the left half is the promissory note and on the right Half is the receipt, it is a printed document in which the blank space has to be filled in by giving the necessary details. The necessary particulars in the promissory note as also in the receipt are written in Urdu while the numericals are given in Roman figures. The promissory note bears the signature of the appellant in Hindi on four revenue stamps of one anna each, while the receipt is signed on a revenue stamp of one anna. The receipt bears the acknowledgment of the appellant in Hindi saying that Rs. 1500/- Have been received in cash. One Jagannath has also signed in Hindi as a witness and he has also written that Rs. 1500/- was paid to the appellant. Both the amounts of Rs. 1500/- as purported to have been written by the appellant and by the witness Jagannath, seem to indicate that the amount of Rs. 150/- was increased to Rs. 1500/- by the addition of another zero. The zero in the handwriting of the appellant Has been placed over the numerical five and between the zero mark. The way in which the two zeros are placed in the aforesaid figures seem to indicate that there was interpolation and a zero was added to convert the original figure of Rs. 150 to Rs. 1500/-. Similarly in the writing of Jagannath there is a clear addition of a dot after the original figure of Rs. 150/-. For lack of space the zero seems to Have been, put in the shape of a dot. If for some reason the appellant Had omitted to put a zero in writing the figure 1500 and he had to add a zero soon after he had put down the figure 150 it is a strange coincidence that the same difficulty should occur at the time when Jagannath was putting down the figure 1500 and he should commit the same mistake and after putting 150 he should find himself in the same plight as was alleged to have been experienced by the appellant and should be compelled to put a dot in order to complete the figure 1500. The respondent does not appear to be stranger to the business of money lending. The form used by him was a printed form which would indicate that he was familiar with the business of money lending. If he had seen that at the time of the writing of the receipt, both the appellant and Jagannath had made mistakes in writing the amount which had been advanced, there should have been no difficulty in getting a fresh receipt signed and executed by the appellant and the witness which would not have created any difficulty at a later stage and thus the risk of getting a receipt which on the face of it indicated that very likely there were interpolations in it would have been avoided. On the back of the aforesaid receipt there is an endorsement by his appellant that he had received a copy of the promissory note and the receipt. It is significant that the appellant was not an agriculturist and there was hardly any necessity for the appellant being supplied with a copy of the aforesaid pronote and the receipt. As has been mentioned above the respondent was no stronger to the business of money lending. It has come in evidence that he is a money lender and his outstandings at the time of the proceeding before the trial Court were in the neighbourhood of about Rupees 5-6 thousand. The trial Court discussed the writing on the prononte and the receipt at a considerable length and I agree with the reasons given by it in arriving at the conclusion that there was material alterations and interpolations in the pronote and me receipt which clearly established that the original consideration was only Rs. 150/-. The Court below expressed the view that a handwriting expert could have been more helpful to the appellant for finding out whether the additional zero in the handwriting of the appellant was genuine or forged and since a handwriting Expert had not been called by the appellant"some adverse inference in the circumstances should be raised" against him. The Court below relying on the evidence of Jagannath came to the conclusion that there was nothing in his statement for proving that he had changed the figure of Rs. 150/- to Rs. 1500/- at any time. It further expressed the view that all the four stamps in the pronote had been signed by the appellant and if it was a transaction involving Rs. 150/- only, stamps of the value of 4 annas would not have been affixed on the pronote. The Court below further considered the contention advanced on behalf of the appellant that he was a"petty oil man" and the respondent could not have advanced a sum of Rs. 1500/- as loan to him. The Court below expressed the view that the appellant was"not a man without means. He was indebted to the respondent to the extent or Rs. 7000/- and had paid oil those debts by selling his property for Rs. 9000/- sometimes after execution of this pronote." It was held that a loan of Rs. 1500/- could he safely advanced to the appellant. There is no indication that the appellant had any other property besides the property which he had sold for Rs. 9000/- as mentioned above. If his liabilities had run to the extent of Rs. 7000/- it could not be said that he was a safe person for the advancement of a loan of Rs. 1500/-. I am clearly of the opinion that the pronote and the receipt indicated that the transaction was not for the advance of Rs. 1500/- to the appellant and the initial entry in the receipt both in the handwriting of the appellant as also of Jagannath was for Rs. 150/- which was subsequently converted into an amount of Rs. 1500/-
(3.) THE learned counsel contended before me that in a case like the present the rule of caution and prudence required that the Court should not arrive at a finding on the question whether there was interpolation in the receipt or not without the assistance of a handwriting expert. He relied on two decisions of this Court in Darshan Singh v. Parbhu Singh, AIR 1946 All 67 and Azmat Ullah Khan v. Shyam Lal, AIR 1947 All 411. In AIR 1946 All 67 (supra) it was observed as follows : "It is not desirable that a Judge should take upon himself the taste of comparing signatures in, order to find out whether there has been a forgery in the case. The least the Judge should do is to secure the assistance of the lawyers concerned in comparing the two signatures and arriving at his conclusions." .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. "We examined the deed with the assistance of the counsel for the parties and the learned counsel for the respondent frankly conceded that some of the criticisms of the learned Civil Judge were unfair." In the present case, the learned counsel for the respondent did not contend that the Courts below did not take the assistance of the lawyers concerned in finding out whether there was interpolation in the aforesaid figures of Rs. 1500/-. The trial Court upon a consideration of the features in the aforesaid pronote and the receipt came to the conclusion that there were interpolations in the pronote and the receipt. The aforesaid findings were reversed by the lower appellate Court, it could not, therefore, be said that the mere absence of a Handwriting Expert from the array of witnesses vitiated the findings either of the trial Court or of the lower appellate Court.;