TMI Blog2005 (2) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ramesh Textiles, Eldams Road, Teynampet, Chennai - 600 018, the plaintiff granted cash credit facility to him to an extent of Rs. 30,000/- on 23.08.1985. The defendant stood as a guarantor for repayment of the dues of S. Kandaswamy. The said S. Kandaswamy was declared as an insolvent by the High Court Madras in I.P. No. 23 of 1986. The defendant had executed a guarantee on 23.08.1985. 3. The defendant filed a written statement containing the following defence: The suit as framed is not maintainable in law. The grant of cash credit facility to M/s. Ramesh Textiles is not known to the defendant and the defendant has not stood as a guarantor for repayment of the dues of said S. Kandaswamy. The defendant had never been in acquaintance with S. Kandaswamy, Proprietor, Ramesh Textiles, Eldams Road, Chennai - 18. The defendant is unaware of the I.P. proceedings against the said S. Kandaswamy. The defendant does not owe to the plaintiff any sum much less a sum of Rs. 39,030.90. The defendant has not stood or executed any guarantee on 23.08.1985. The defendant perused the second document in Court and emphatically states that the signature found in the letter of guarantee is not his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the signature by itself. Ex.A-2 is only meant for future advances and it is not in respect of existing liability of the principal debtor. The contents of Ex.A-2 were not read and explained to the defendant. Ex.A-2 is a printed form wherein, unnecessary words have not been struck off. Regarding the admission of D.W.1 about the signature in Ex.A-5, the learned counsel submitted that D.W.1 has deposed without understanding the question put to him and as such the admission of D.W.1 should not be relied upon and the loan sanction order has not been produced. Learned counsel further submitted that the Trial Court erred in comparing the signatures by itself without getting an expert's opinion from the hand writing expert. On the above submissions, the learned counsel sought for setting aside the judgment and decree of the Trial Court. 7. Learned counsel for the plaintiff-Bank made the following submissions: The Trial Court is entitled to compare the disputed signatures with the admitted signatures under Section 73 of the Indian Evidence Act. D.W.1 has admitted his signature in Ex.A-5 and this Court, as a final Court of facts, can compare the disputed signature in Ex.A-2 with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Manager of the Bank, who wrote Ex.A-2 has not been examined and that itself may not be a ground to disbelieve the case of the plaintiff, if there are other evidence to prove the case of the plaintiff. The Trial Court has observed that when the defendant had denied his signature in Ex.A-2, it is the defendant's duty to summon his admitted signature from the Indian Bank where he is holding an account and prove that the signature in Ex.A-2 is not his signature. This observation of the Trial Court is wrong. Since, it is the duty of the plaintiff to establish his case, the Trial Court has erred in casting the burden on the defendant. Now, we have to see whether the plaintiff has proved his case and whether the contentions raised by the learned counsel for the defendant are acceptable. 10. Learned counsel for the defendant relied upon a judgment reported in 2003 (11) S.C.C. 241, (Pawan Kumar Vs. State of Haryana). In that judgment, the Honourable Supreme Court in paragraph no. 8 has held as follows: The next circumstance which has been alleged against the accused is a letter written by the appellant to his mother. So far as this letter is concerned, it has been admitted in ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can safely be concluded with the assistance of the expert opinion that the disputed writings are in the handwriting of the accused as alleged. For this purpose we were shown the enlarged copies of the two sets of writings but we are afraid we did not consider it advisable to venture a conclusion based on such comparison having regard to the state of evidence on record in regard to the specimen/admitted writings of the Accused 1 and 2. Although the section specifically empowers the Court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. We have already pointed out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. We have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings. Relying on the above said passage, learned counsel submitted that neither the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court has power to compare the writings and decide the matter. (emphasize supplied). 13. In the judgment reported in 2001 (2) Law Weekly 334, the Division Bench of this Court, by relying upon a judgment of the Supreme Court of India reported in 1998 (2) SCC 192 (Gulsar Ali Vs. State of H.P.), has held as follows: In order to prove the identity of the handwriting any mode not forbidden by law can be resorted to. Two modes are indicated by law in Sections 45 and 47 of the Evidence Act. Section 45 of the Act permits expert opinion to be regarded as relevant evidence and Section 47 permits opinion of any person acquainted with such handwriting to be regarded as relevant evidence. In this regard the following conclusion of the Supreme Court in Gulzar Ali Vs. State of H.P. in 1998 (2) S.C.C. 192 is relevant. Their lordships have held that it cannot be said that identity of handwriting of a document can be established only by resorting to one of those two sections, namely Sections 45 and 47. The Division Bench has further held that it is clear that though normally the Court should not take upon itself the responsibility of comparing the disputed signature with that of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found in Ex.A-2 and the signature found in Ex.A-5 are similar and is that of the same person. 15. Apart from the fact that Ex.A-2 has been executed by the defendant, he has also handed over Ex.A-5 containing the details of his properties and assets. Nobody else could have furnished those details except the defendant. The contention of the defendant that it could have been created by the Bank cannot be accepted. There is absolutely no evidence on record to hold that the Bank has created Ex.A-2 and Ex.A-5. We fail to understand as to why the Bank should create a document against the interest of the defendant. Exs.A-5 and A-2 clearly establish that the defendant has stood as a guarantor for the loan advanced to S. Kandaswamy. 16. Learned counsel for the defendant contents that Ex.A-2 was not read over and explained to the defendant and it is a printed form and it is meant for future advances only. According to the learned counsel for the defendant there is no evidence to show that after 23.08.1985 any amount was advanced as loan to the principal debtor. Learned counsel drew our attention to Ex.A-2. The first few lines of Ex.A-2 reads as follows: In consideration of order at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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