Karunakaran vs Sreenivasan and Others

Pareed Pillay, J.—Appellant is the Plaintiff. His suit for realisation of money on the strength of a promissory note though decreed by the trial Court was dismissed by the first appellate Court.

The question raised in the second appeal is whether the District Judge was justified in accepting the opinion of another court to impeach the credit of Plaintiff and his witness. The District Judge had made reference to Ext. B-5 judgment in O.S. 215 of 1974 which was a suit filed by the present Plaintiff and his brother for realisation of certain amount due to them on the strength of a promissory note. O.S. 215 of 1974 was dismissed finding that the promissory note was not genuine. Counsel contended that the question whether a witness is entitled to credit or not should be decided by a court on the evidence before it and not on the basis of another judgment in another case.

Whether a witness is entitled to credit or not must be decided by the court on the evidence before it and not on what another court thought of the witness in another case. Section 155 of the Evidence Act provides in what manner the credit of a witness can be impeached. The credit of a witness can be impeached by the adverse party, or with the consent of the court by the party who calls him:

(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;

(2) by proof that the witness has been bribed or has accepted the offer of a bribe or has received any other corrupt inducement to give evidence;

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

Merely because a witness is not believed in a case the judgment in that case cannot be put in for impeaching his credit in another case. In Chandreshwar Prasad Narain Singh Vs. Bisheshwar Prasad Narain Singh, the Court held as follows:

The question whether a witness is entitled to credit or not must be decided by a Court on the evidence before it, and not on what another court thought of the witness in another case, and therefore opinion of Court in another case as to the witness cannot be put in to impeach his credit.

The credit of a witness may be impeached as provided u/s 155 of the Evidence Act. The fact that a witness was not believed in a judgment in another case cannot be used against him in a subsequent case. The former judgment cannot be given in evidence for the purpose of impeaching the credit of a witness. Judgments in other cases are relevant under Sections 40 - 43 of the Evidence Act. As the judgments in other cases are relevant only under Sections 40 - 43 of the Evidence Act the credit of a witness cannot be impeached by confronting him with a judgment in another case. Thus the indubitable position is that Ext. B-5 judgment cannot be used to impeach the testimony of P.Ws. 1 and 2.

The Plaintiff has contended that the learned District Judge was completely prejudiced against the Plaintiff on account of Ext. B-5 judgment and overlooked the material evidence considered by the trial Court to grant decree in his favour. Counsel for the Defendants contended that even if Ext. B-5 judgment is totally eschewed the Plaintiff cannot succeed in the suit as he has not discharged the onus of proof regarding the execution of the promissory note and the passing of the consideration. As the Defendants denied execution of the promissory note the burden is on the Plaintiff to prove both the execution and passing of the consideration. In paragraph one of the plaint the averment is to the effect that the promissory note was executed in favour of the Plaintiff. In evidence an entirely different version is projected by the Plaintiff. The evidence is to the effect that it was P.W. 2 who advanced the amount to the Defendants when they executed the promissory note. Plaintiff examined as P.W. 1 stated that the amount was given to the Defendants by P.W. 2. He did not have such a case in the plaint. P.W. 1 stated that he does not know the Defendants and he had no occasion to meet them. He also admitted that he was not present when the amount was handed over to the defendants. The allegations in the plaint and the evidence are at variance. P.W. 2 stated that printed form of the promissory note was filled up by his clerk Lalan. Lalan was not examined. P.W. 2''s evidence shows that several others were present when the amount was advanced to the Defendants. None of them was examined in the Court, As the promissory note was denied the Plaintiff ought to have adduced satisfactory evidence to establish the execution of the promissory note and the passing of the consideration. As P.W. 2 himself admitted that others were present when the amount was given to the defendants the Plaintiff could have taken steps to examine anyone of them to substantiate his case. As that has not been done it may not be safe to rely on the solitary evidence of P.W. 2 regarding the execution of the promissory note and passing of the consideration. It cannot be said that the District Judge went wrong in dismissing the suit though he should not have made any reference to Ext. B-5. As the execution of the promissory note and the passing of the consideration have not been proved in the case the District Judge was justified in dismissing the suit.

Merely because D.W. 2 has stated that the Plaintiff had never committed any breach of trust the suit cannot be decreed as evidence is lacking to prove the execution of the promissory note.

The Second Appeal is devoid of merit and hence the same is dismissed. Parties shall bear their respective costs throughout.