TASADUQ HUSSAIN Vs. BASAWAN RAI

JUDGEMENT

(1.) This application is directed against a decree of the Small Cause Court Judge, Muzaffarpur, decreeing a suit for money against the petitioner.

(2.) The plaintiff's case was that the defendant borrowed Rs. 218 from him and gave him a hand note. He produced in support of it a paper which is a promise to pay Rs. 218 with interest on demand, but the name of the person to whom it was payable is not specified.

(3.) The defendant on the other hand, pleaded that the paper was fabricated and stated that he had borrowed Rs. 50 from one Bankey Singh and had given him a hand note, that he had paid up that loan but could not get back that hand note. The suggestion was that the plaintiff somehow or other fabricated the disputed paper from that hand note. The learned Small Cause Court Judge has considered this statement and suggestion to be an admission of the defendant about the genuineness of the hand note in suit. It is not so. The hand note, which was admitted to have been executed was in favour of Bankey Singh and was for Rs. 50. It can possibly have no reference to the hand note in question as this hand note is for Rupees 218. Apart from this, there seems to be some confusion in the mind of the learned Judge about the hand note. At one place his remarks show that he was of opinion that the hand note in suit was in favour of Bankey Singh and that the defendant was trying to avoid its payment as Bankey Singh was dead. If that be so, there ought to have been a finding that the plaintiff was entitled to sue for the loan evidenced by the hand note in suit. Then the hand note in suit was sent to the finger print expert of the Criminal Investigation Department and a report was received to the effect that the thumb impression was that of the defendant, though the expect was unable to express any opinion whether it tallied with his right hand thumb impression. This aspect required consideration, as the defendant seems to be illiterate and his signature purports to be in the handwriting of another. The expert was however not examined, and the plaintiff had no opportunity of cross-examining him. His report is not admissible in evidence.