Recovery of money

Facts posted lack clarity and rather disjointed. Please post simple facts.

Hi

my mother participated in chits she used to keep the matured chit amount with defendant  and the total amount acquired is 25 lakhs.  When we requested the defendant issued promissory note and cheque.later she did not paid the amount we filed case under 138 act and civil suit.  We have issued 1st notice stating that the plaintiff given amount as hand loan to defended from time to time.  The defendant replied stating that she lost signed cheque and pronote and the same has been stolen by plaintiff.  We have issued rejoinder notice stating that the defendant used to run chit business and the matured chits has kept with defendant.

pw1, pw2 and pw3 stood for plaintiff 

d1 stood for defendant 

pw1 is plaintiff, pw 2 is his son and pw 3 is promissory note attestor

d1 is defendant 

pw1 in her cross denied that she has not stolen promissory note and promissory note is valid etc

pw2 in his cross stated that plaintiff has given matured chits as hand loan and the defendant used to run chit business etc

pw 3 attestor in his cross stated that he signed as artestor and signature belongs to the defendant and defendant signed infront of him by stating that she has to pay 25 lakhs to plaintiff etc

dw1 is defendant in her cross agreed that the notice is prepared according to her instructions and signatures in cheque and promissory note belong to her.

the case came for arguments defendant expired 

we have changed our advocate

lrs brought on record and filed the assets which were in her name

and brought chit books which were in Ni act (in Ni act also chit books not marked as names not written on books further the defendant used to call plaintiff as aunty the same is written on chit books and the books are written by defendant in her own handwriting) and we have taken hand Writting proof from truth labs by comparing some words written by defendant in petition before court and amount in cheque which was written in her own hand Writting 

we have filed receive document petition and revised amendment petition under section 26 & order 7 rule 1 of cpc

but the judge did not considered our request stating that it's too late and names not written in books.

the judge dismissed the case as there is difference in notices ie on 1 st notice amount given as hand loan from time to time and in rejoinder notice matured chits time to time given as hand loan.  The judge did not consider pw3 attestor witness.  The judge stated that due to difference in notice the burden lies on plaintiff by providing chit books

please guide me

regards

What do you want to clarify by posting tis lengthy query here, you have narrated the story but did not raise any query, if you are aggrieved by the court's decision to reject the petition for receiving additional documents, then you can file a civil revision petition before high court seeking to set aside the trial court order and direct the trial court to permit you to mark them as exhibits from your side, but at this stage when the evidence of both the sides are closed and posted for final arguments,  you may have to file a reopen and recall the witness  petition along with the the petition to receive additionl documents

Hi sir

judgement already pronounced in favour of defendant in lower court.  Sir my point is execution of promissory note already proved by witnessing pw3 attestor of promissory note and admitting signatures by defendant.

1) burden lies in defendant to prove stolen cheques

or

2) burden lies in plaintiff for difference in notices a) 1st notice amount given from time to time as hand loan b) rejoinder matured chits given as hand loan from time to time.  By proving chit books.

sir, whose burden defendant or plaintiff 

if those chit books are not in admissible position then what to do

please clarify 

regards

guru

I have perused judgment uploaded in e-court. The Court had dismissed the case observing that -

"Thus the case of Plaintif is not clear and consistent. No material was placed before this Court to show that the defendant.no.1 run chits business. Plaintif herself admitted in her
evidence that the defendant is a house wife."

It is fact that there are material contradictions in the plaintiff. That being so observations of the Court as to the initial burden being on the plaintiff may not be much help in following remedy in Appeal.

You have mentioned that the there was no name in the chit book hence the chit books without any name is not admissible as evidence.

The burden to prove the casae always lies on the plaintiff and not on the defendant.

The case has been decided by court hence you cannot introduce new items in the appeal, if you are planning to prefer an appeal. 

Very well analysed, opined and advised by learned senior experts, which I endorse.

Sir

thank you all for your responses.

sir it not true that my mother/plaintiff admitted in her evidence that the defendant is a house wife, the fact is our previous advocate by oversight written as a house wife in one of the petition not in chief or in cross examination petition .  Those are not marked in civil suit.  I am enclosing herewith copies of petition and evidence of pw1 for reference.

sir accused running unauthorised chit business my mother is elder than accused she used to call my mother as aunty.  Moreover accused has written some words in petition before court (received copy) and cheque amount has been written her own.  hand Writting for which we have done handwriting proof in truth labs and the result is positive.  If the court allows and send to government fsl the results will be positive as chit books are written by accused own handwriting.

further in cheque bounce case the high court judge Shameem actar sir has given non bail able arrest warnt for not attending the court.  After accused death b Siva Shanker sir has revoked non bail able arrest warrant. 
sir please reply

regards

Hi, 

The facts make it clear that your mother, the plaintiff, never herself admitted that the defendant was merely a housewife in any evidence presented in court. Rather, if any such statement found its way into the record, it appears to be solely due to an oversight on the part of prior counsel in a petition that was not marked in the civil suit, nor in chief or cross-examination. This point is significant for the integrity of the plaintiff’s case and should be addressed in any higher appeal or review.

It is also relevant that the accused/defendant was running an unauthorised chit business, with your mother (being senior and referred to as "aunty") keeping matured chit amounts with her, and the total due in question is adequately supported by a promissory note and cheque—both bearing signatures which the defendant admitted belonged to her. Multiple witnesses (including the attestor) supported the plaintiff’s version concerning the validity and execution of these documents. Additionally, you have handwriting proof from a reputable private laboratory confirming that the entries in the chit books and cheque are in the defendant’s handwriting.

Legally, handwriting expert opinion is indeed admissible evidence under the Indian Evidence Act, and when coupled with internal and external corroboration (e.g. witness testimony, admitted signatures), it can be highly probative. However, courts have repeatedly cautioned that handwriting expert evidence—even if positive—is only an opinion, not conclusive proof, and must be read with other evidence in record[2][4]. If handwriting analysis is conducted by a government forensic laboratory upon court order and comes back positive, its evidentiary value is enhanced, but still requires the judge’s independent satisfaction[2][3].

As regards procedure, even if earlier a non-bailable warrant was issued by the court in the cheque bounce case and later revoked post the defendant’s death, this does not harm the substantive claim in the civil suit but does reflect the seriousness of proceedings.

In final opinion, if plaintiff’s evidence is internally consistent and corroborated by attestors, expert reports, and admitted signatures, these should ordinarily shift the burden to the defendant, especially on the point of alleged theft (more so if no police complaint of theft has ever been filed by the defendant). Your point about the chit business, the relationship between the parties, and the positive handwriting report should all be highlighted. But the survival of the claim on appeal will depend on whether the evidence marked and noticed by the court was legally admissible and internal contradictions, if any, were truly material to the foundation of the claim. If any vital supportive petition (amendments, additional documents) was wrongly disregarded by the judge, it may form part of your grounds for appeal, focusing on legal admissibility and sufficiency of evidence. The lack of the plaintiff’s name in the chit books and timing of application to mark those books were technical setbacks that do not totally nullify more direct evidence of debt and execution if those are otherwise established to the civil standard of proof.

Connect with me at adv.vishesh@icloud.com for further discussion.

Hi sir,

the acuused didn't given any police complaint regarding the stolen cheques.  In reply notice she questioned about source of income "your client does not have any source of income ", we have proved this by submitting bank statements .

regards

guru