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2005 DIGILAW 622 (MAD)

Subramaniam v. Krishna Gounder

2005-04-09

A.R.RAMALINGAM

body2005
Judgment :- Aggrieved against the judgment and decree of the Sub Judge, Thiruvannamalai in A.S.No.53 of 1991 which was filed against the judgment and decree passed by the Principal District Munsif, Thiruvannamalai in favour of the plaintiff in O.S.No.303 of 1987 in and by which the Sub Judge has set aside the judgment and decree of the Principal District Munsif and dismissed the suit, the plaintiff Subramaniam has filed this second appeal. 2.The said suit was filed by the plaintiff Subramaniam against the defendant Krishna Gounder for recovery of Rs.11,950/= being principal of Rs.10,000/= and interest of Rs.1950/= on a pro note said to have been executed by the defendant in favour of the plaintiff on 19.2.1985 for Rs.10,000/=. 3. The said suit was contested by the defendant with the contentions that the suit pro note dated 19.2.1985 was not at all executed by the defendant and he never borrowed Rs.10,000/= from the plaintiff and instead the said suit pro note has been forged and fabricated by the plaintiff with his men and that the plaintiff himself was highly indebted to third parties and he had no means to pay Rs.10,000/= to the defendant and that the defendant is not at all liable to pay any amount based upon the suit pro note and consequently the suit is liable to be dismissed. 4. On trial and after examining four witnesses including the plaintiff as PW1 for the plaintiff and the defendant as DW1 and marking of the suit pro note dated 19.2.1985 as Ex.A1 and nine documents as Exs.B1 to B9, the District Munsif, Thiruvannamalai has found and come to the conclusion that the suit pro note marked as Ex.A1 is a true and valid one and supported by consideration and thereby decreed the suit. 5. On appeal, the Sub Judge, Thiruvannamalai, after considering the oral and documentary evidence available for either side, has found and come to the conclusion that the suit pro note marked as Ex.A1 has not been proved to be a true and valid one and supported by consideration and consequently allowed the appeal and dismissed the suit. 6. The entire evidence available for either side has been taken note of by me in depth. 6. The entire evidence available for either side has been taken note of by me in depth. The substantial question of law raised in the second appeal is the only question whether the suit pro note could be a forged one and on that ground, the first appellate court is correct in reversing the judgment and decree of the District Munsif. Therefore, the second appeal, in my view, does not involve any question of law much less substantial question of law and instead it is based upon the correctness upon the finding of the Sub Judge, Thiruvannamalai in reversing the judgment of the District Munsif. In other words, the second appeal appears to have been filed only on the correctness upon the manner of appreciation of evidence with reference to the question of forgery or not. 7. For proper appreciation and concussion, the following important material aspects as borne out from the evidence available in this case have to be taken into account. PW1 viz., the plaintiff Subramnaiam has given evidence about the execution of the suit pro note marked as Ex.A1 as if the defendant borrowed Rs.10,000/= from him one year before the date of execution of Ex.A1 viz., 19.2.1985 and Ex.A1 has been attested by PW2 Chakrapani, PW4 Anandan and it was written by PW3 Chakravarthy. In the cross examination, PW1 has clearly admitted that it is true that he mortgaged some of his properties for Rs.1000/= to one Vedi Gounder on 19.9.1983 and later it was discharged by him on 1.7.1988 as per the endorsement of discharge in Ex.B1, but, at the same time he was able to lend Rs.10,000/= on 19.2.1985 under Ex.A1. This aspect, on the first instance, creates doubt upon the capacity or means of the plaintiff to lend Rs.10,000/= under ex.A1 instead of trying to discharge the earlier mortgage in favour of Vedi Gounder under Ex.B1 that too for Rs.1000/=. 8. It has also been admitted by the plaintiff that on 5.6.1985 the defendant purchased some properties for Rs.4400/= from the plaintiff under Ex.B4 and that likewise on the very same date, he also purchased from the defendant some properties for Rs.6075/= as per Ex.B3 and that the property is 1 acre 12 cents punja. 8. It has also been admitted by the plaintiff that on 5.6.1985 the defendant purchased some properties for Rs.4400/= from the plaintiff under Ex.B4 and that likewise on the very same date, he also purchased from the defendant some properties for Rs.6075/= as per Ex.B3 and that the property is 1 acre 12 cents punja. It is significant to note in this context that the plaintiff was not prepared to adjust Rs.10,000/= through those documents inasmuch as those documents dated 5.6.1985 nearly four months subsequent to Ex.A1 on 19.2.1985. This conduct of the plaintiff also creates very strong doubt that whether any prudent man like the plaintiff could have transacted sale and purchase under Exs.B3 and B4 without resorting to the earlier debt of Rs.10,000/= allegedly due by the defendant to the plaintiff. 9. No doubt, PW1 Chakrapani, PW4 Anandan and PW3 Chakravarthy have given evidence to the effect that the suit pro note Ex.A1 was executed by the defendant on 19.2.1985 at the house of the plaintiff and the same was written by PW3 Chakravarhty. But, at the same time, PW2 Chakrapani and PW4 Anandan are not in a position to see that Rs.10,000/= was given by the plaintiff to the defendant in their presence and instead they have gone to the extent of saying that the amount was said to have been given some days before 19.2.1985. However, PW3 Chakravarthy has gone to the extent of saying that some days prior to the execution of Ex.A1, Rs.10,000/= was given by the plaintiff to the defendant in his presence when he, accidentally, was available at the house of the plaintiff. Therefor,e the evidence of P.Ws.2 to 4, in my view, does not appear to be believable and acceptable in the practical point of approach and it is more so when P.Ws.2 to 4 are more interested upon the plaintiff and there is already enmity between the brother of PW3 viz., one Jayaraman and the defendant in connection with the panchayat board president election and also in connection with issue of 2C patta in respect of tamarind tree in favour of the defendant notwithstanding the objection and protest of the said Jayaraman and his plea by the Revenue Department. 10. 10. Further, it is the specific pleading and evidence of the defendant that the suit pro note marked as Ex.A1 does not contain the signature and it should be a forged one and that being so, it is not the attempt of the plaintiff to have the opinion of handwriting expert to confirm that Ex.A1 contains the signature of the defendant. Even on perusal by naked eyes, I am able to see that the two signatures found upon the stamps and below them appear to be different from one another and it is certainly different from other admitted signatures of the defendant in vakalat of the defendant and the written statement filed by him. 11. It is significant to note that when the consideration of Rs.10,000/= is said to have been paid about one week before the date of execution of Ex.A1 viz., 19.2.1985 recital in Ex.A1 shows that This kind of recital itself further creates strong doubt that Ex.A1 pro note could not have come into existence on 19.2.1985 for consideration of Rs.10,000/= and instead it should have been fabricated or forged by the plaintiff on a later date by putting ante date, etc., for the purpose of filing the suit due to the enmity between the parties. That is whey the plaintiff could not be in a position to adjust Ex.A1 amount with that of the transactions in Exs.B3 and B4 sale deeds and if really Ex.A1 was in existence on 19.2.1985, as claimed by the plaintiff, certainly, the plaintiff would have chosen to adjust the suit pro note amount in the sale transactions covered by not only Exs.B3 and B4 but also Ex.B2 dated 5.6.1985 which is also a sale deed executed by the plaintiff in favour of the defendant's wife Neelavathi for Rs.4371/=. Therefore, this peculiar and extraordinary conduct of the plaintiff in not having chosen to adjust the pro note debt in the sale transaction between the plaintiff and defendant covered by Exs.B2 to B4 which are on one and the same date. 12. No doubt, the initial burden to prove the due execution of the pro note lies upon the plaintiff based upon the presumption of consideration under section 118 of the Negotiable Instruments Act and then it is for the defendant to deny the execution and consideration to rebut such presumption by acceptable evidence. 12. No doubt, the initial burden to prove the due execution of the pro note lies upon the plaintiff based upon the presumption of consideration under section 118 of the Negotiable Instruments Act and then it is for the defendant to deny the execution and consideration to rebut such presumption by acceptable evidence. For this, though the plaintiff has examined P.Ws.2 to 4 viz., attestors and scribe, their evidence appear to be interested upon the plaintiff for various other reasons and at the same time the circumstances as I have observed above, clearly go to indicate that the suit pro note marked as Ex.A1 cannot be a true and supported by consideration and that this stands as a rebuttal against the presumption of consideration in line with the pleading and evidence of the defendant. Therefore, the cumulative effect of the circumstances in respect of the defendant's contention clearly leads to conclude that Ex.A1 pro note could not be a true and genuine one and supported by consideration as claimed by the plaintiff. 13. Therefore, the second appeal has no merits in a way inviting this court to interfere with the judgment of the Sub Judge, Thiruvannamalai and consequently, the second appeal fails and the same is dismissed with costs.