1. This appeal suit has been filed by the Defendants in OS.No.302 of 2004 on the file of the Additional District and Sessions Judge (FTC I),
Trichy, challenging the judgement and decree dated 30.3.2007.
2. The above suit had been filed for recovery of a sum of Rs.9,01,250/- with interest at the rate of 12% p.a. from the date of the plaint till the date
of realisation.
3. In the plaint, the Plaintiff, who is the Respondent herein, had stated that the Defendants are husband and wife. They were known to the Plaintiff.
They had borrowed money on various occasions, amounting to Rs.4 lakhs for discharge of their existing loan. They had also availed loan from
Srirangam Cooperative Urban Bank Limited where the 2nd Defendant was one of the Directors. They could not repay the loan. The Bank
therefore threatened to take action. In such a situation, the Defendants approached the Plaintiff. The Plaintiff discharged the loan to the Bank to a
sum of Rs.2.26 lakhs and received the original title deeds, including the mortgage deed dated 9.5.1949, sale deed dated 9.9.1968, Will dated
16.5.1985, executed by Ramanujam Iyengar, father of the 1st Defendant, house tax receipt dated 2.9.1996, encumbrance certificate, planning
permission issued by Srirangam Municipality in respect of the property, bearing Door No.160, East Chithirai Street, Srirangam. The Defendants
did not repay the loan amounts advanced by the Plaintiff. The Defendants agreed to pay a sum of Rs.8,75,000/- on 6.43.2004 which included the
interest for the money due. They executed a document on 30.5.2001 and issued a post dated cheque bearing no.09230 for Rs.8,75,000/- dated
6.3.2004. This cheque was presented by the Plaintiff in Canara Bank, Srirangam on 10.3.2004. This was returned due to insufficient funds.
Consequently, a legal notice dated 7.3.2004 was issued under Section 138 of the Negotiable Instruments Act. The Defendants did not repay the
loan. It had been stated that since the Defendants were trying to alienate the property, the Plaintiff issued a paper publication in Dinamalar
Newspaper dated 23.9.2003. the Plaintiff therefore filed the suit for recovery of Rs.9,01,250/- with subsequent interest.
4. In the written statement filed by the 2nd Defendant and adopted by the 1st Defendant, it had been stated that the borrowal of amounts from the
Plaintiff are false and specifically denied. It had been stated that the 1st Defendant borrowed loan from the Bank. It had been denied that the
Plaintiff discharged the loan to a sum of Rs.2.26 lakhs. It had been further denied that the Plaintiff and the Defendants were friends and that the
Plaintiff had advanced amounts on various dates to the Defendants. It had been denied that a document was executed on 30.5.2001 and it had
been further denied that cheque no.09230 for Rs.8,75,000/- dated 6.3.2004 had been issued. It had been stated that the account, in which the
cheque was issued, was already closed in 1995. It had been stated that the Defendants requested the Plaintiff to arrange for a loan of Rs.50,000/-
during May 2001. At that time, the Plaintiff got the signatures of the Defendants in an empty stamp paper on 30.5.2001 as security so that he could
arrange the amount from third party financiers. The Defendants repaid the amount in June 2001 after getting GPF loan from the employer of the 1st
Defendant. The Plaintiff did not return the signed blank documents.
5. It had been further stated in the written statement that the 1st Defendant was employed in Tamil Nadu Electricity Board and consequently,
necessity to borrow money was denied. It had been stated that the signature in the cheque is a forged signature. It had been further stated that the
document dated 30.5.2001 is a concocted document It had been further stated that the documents received from the Bank were kept by the
Defendants in their house. The 1st Defendant retired on 30.6.2003. They wanted to built apartments in their property at door no.160, East
Chithirai Street, Srirangam. The Plaintiff informed that he knew many flat promoters. He therefore got the original documents for arrangement of
flat promoters. However, the Plaintiff wanted to purchase the property. This was resisted by the Defendants. Hence, the Plaintiff developed enmity
with the Defendants. The Plaintiff had utilised one of the unused and damaged cheque leaves found in the original documents from the Bank and
given to the Plaintiff. The signature in the cheque is a forged signature and the document is a concocted document. It had been therefore stated that
the suit has to be dismissed as there was no cause of action for the suit against the Defendants.6. On consideration of the pleadings, the court
below had framed the following issues:-
1. Whether the Plaintiff is entitled for the suit claim?
2. To what other reliefs the Plaintiff is entitled to?
7. The parties went to trial. The Plaintiff had examined himself as PW.1 and marked Ex.A1 to Ex.A17. These documents included the document
dated 30.5.2001 as Ex.A1, the cheque dated 6.43.2004 as Ex.A2, the memo from the Bank, indicating the reason for the return of the cheque as
Ex.A3, the notice dated 17.3.2004 as Ex.A4 and the documents of the property of the Defendant which the Plaintiff claimed to have received
back from the Bank as Ex.A5 to Ex.A10, the challans for payment of amount dated 22.3.2003 as Ex.A11 and Ex.A12, the No Objection
Certificate issued by the Bank as Ex.A13, the public notice issued in Dinamalar Newspaper as Ex.A14, the bank challans as Ex.A15 and Ex.A16
and the passbook of the Plaintiff as Ex.A17. The 2nd Defendant examined herself as DW.1 and marked Ex.B1 which is the GPF statement of the
1st Defendant.
8. On consideration of the oral and documentary evidence, the court below held that the Plaintiff was a retired teacher and in Ex.A17, there were
withdrawals on 30.5.2001 for Rs.1,43,000/- and Rs.53,000/- and there was a deposit in the Defendants bank account on 22.3.2003 for a sum of
Rs. 1,96,515/- as evidenced by Ex.A12 and that in Ex.A17, there was sufficient funds in the passbook of the Plaintiff to hold that he had money to
lend to the Defendants and further that the burden was on the Defendants to prove that the signature in Ex.A2 cheque was forged and that they
had not discharged the said burden and consequently, held that the suit claim is proved and decreed the suit with costs. As against the same, the
Defendants have filed this appeal.
9. This court heard the learned counsel on either side and considered their submissions carefully and also perused the materials placed on record.
10. It is to be seen whether the case of the Appellants that they had requested the Respondent to arrange for a loan of Rs.50,000/- during May
2001 and on that date, the Respondent obtained signatures in blank stamp papers is more probable or whether the Respondent herein had forged
the signature of the Appellants in Ex.A2 is more probable.
11. Ex.A2 is the cheque dated 6.3.2004 for Rs.8,75,000/-. It has a signature of T.R.Sundararajan. The 1st Appellant''s name is
T.R.Sundararajan. The Appellants claimed that this signature is forged. It has been drawn on the Srirangam Cooperative Urban Bank Limited,
Srirangam. It is in favour of P.Subramanian, the Respondent herein. Cheque number is 09230 and the account number is also given, namely, 1618.
This cheque as is seen has been presented to the Bank since it bears the seal of the Bank. This cheque also has the seal of the Canara Bank, which
is the bank of the Respondent. There is an endorsement that ""payment payees account will be credited on realisation"". Consequently, the stand of
the Respondent that the cheque was actually presented for payment in Canara Bank, which had forwarded to the Srirangam Cooperative Urban
Bank Limited is established.
12. At this juncture, it must also be pointed out that the 2nd Appellant, who is the wife of the 1st Appellant, was at some point of time, one of the
Directors of the said Srirangam Cooperative Urban Bank Limited. This has come out in evidence. Ex.A3 is the return memo issued by the
Srirangam Cooperative Urban Bank Limited and signed by the Secretary of the said Bank. It is dated 10.3.2004. It refers to the cheque number
09230. There are as many as 16 reasons, which are printed in the return memo. These included at S.No.6 ""drawer signature differs"". This would
have been indicated by the Bank if the signature of the 1st Appellant had actually been forged by the Respondent. At this juncture, a perusal of
Ex.A1 is also necessary. It is the claim of the Respondent that Ex.A2 was issued at the time when Ex.A1 was entered by the Appellants. Ex.A1 is
called as ""VERNACULR MATTER OMITTED"". It reads as follows:-
VERNACULR MATTER OMITTED
13. Ex.A1 is signed by both the Appellants. The 1st Appellant has also given the date as 30.5.2001. There is also a witness to the said document.
It is the claim of the Appellants that these signatures had been obtained in blank stamp papers. They had denied the signature of the 1st Appellant
in Ex.A2 cheque. They had taken out an application to compare the signature by an handwriting expert. It is seen from the judgement that the
handwriting expert required contemporaneous signatures of the 1st Appellant and since the same were not provided, comparison was not done. A
re-look at return memo Ex.A3 reveals that cheque in Ex.A2, as stated above was not returned because the signature differed. It was returned on
the ground of ""insufficient funds"". It must be again kept in mind that the 2nd Appellant was a Director at the Srirangam Cooperative Urban Bank
Limited. Naturally, the reaction of a wife who is or was a Director in the Bank and whose husband''s cheque is presented for payment for a huge
sum of Rs.8,75,000/- and when the contention of the husband is that his signature has been forged, more particularly, when the said wife is or was
a Director in the very same Bank where the cheque is presented would be to take immediate steps to see that the forgery is detected and the
forgeror is prosecuted. On the other hand, the Appellants have not taken any such steps. They have merely filed an application for comparison of
signatures and when they were actually asked to produce documents with signatures contemporaneous in nature, they did not do so. This is all the
more strange since the 1st Appellant was employed in the Electricity Board and official documents containing his signature would certainly be
available. I hold that documents with contemporaneous signatures were not produced only because the signature in Ex.A2 is true and the accepted
signature of the 1st Appellant. The suspicious nature of the Appellants are revealed in the fact that the 1st Appellant has deliberately signed in a
different manner in Ex.A1 which is not an official document. On the other hand, Ex.A2 cheque is a negotiable instrument, in which had he signed
differently and had there been an act of forgery committed, it would have been immediately brought to his notice by the Bank Officials. The Bank
Officials did not raise any suspicion over the signature. Therefore, I hold that Ex.A2 cheque had been issued only by the 1st Appellant and had
been issued only towards the discharge of an existing loan.
14. The other aspects relating to availability of funds by the Respondent to actually lend money have been dealt with by the court below and
Ex.A17 has been very deeply gone through by the court below wherein it had been held that the Respondent had more than sufficient funds in
Ex.A17 which is the bank passbook of the Respondent. The court below had found as a fact that Ex.A17 relates to the passbook entries from
December 1989. On 30.5.2001, which is the date of Ex.A1, an amount of Rs.1,43,000/- and another amount of Rs.53,000/- had been drawn by
the Respondent. Ex.A1 is also dated 30.5.2001. It was also found that on 22.3.2003, a sum of Rs.1,96,515/- had been issued in the name of the
1st Appellant and the challan for the same is Ex.A12. There has been further entries for Rs.1100/- and Rs.400 towards commission. These are
also extracted in Ex.A12. Consequently, the findings on fact which are not contradicted are upheld by me.
15. It is also seen that a perusal of Ex.A17 reveals that there were balances of Rs.34,000/- Rs.40,000/- and Rs.1 lakh in the account of the
Plaintiff and on 31.1.2006 there was a balance of Rs.2,96,092/-. Consequently, the capacity of the Respondent to lend money had been
established.
16. From the above, it is clear that Ex.A2 cheque had been issued only by the 1st Respondent since the Srirangam Cooperative Urban Bank
Limited had not rejected Ex.A2 cheque on the ground that the signature differs leading to a suspicion that it could be forged. But it was returned
only on the ground that funds were insufficient in the bank. Once a cheque has been issued, a presumption under Section 118 of the Negotiable
Instruments Act is to be drawn. This is all the more because the Appellants have not come forward with a true and correct story and they have
built up a false case. They have to fall on their false pleadings. Consequently, I hold that the appeal has to fail.
17. In the result, this appeal suit is dismissed with costs, confirming the judgement and decree of the court below dated 30.03.2007 made in
OS.No.
