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2023 DIGILAW 1347 (AP)

Pallapotu Bala Srinivas v. Ramesh Lal Hari Ram

2023-09-25

T.MALLIKARJUNA RAO

body2023
JUDGMENT 1. The Appeal, under Sec. 96 of the Code of the Civil Procedure, is filed by the appellants/defendants challenging the decree and Judgment dtd. 4/6/2012 in O.S.No.832 of 2009 passed by the learned V Additional Senior Civil Judge (Fast Track Court), Vijayawada (for short, 'the trial court'). Respondent is the plaintiff, who filed the suit in O.S. No.832 of 2009 seeking recovery of Rs.4, 40, 112.00 with interest and costs from the defendants based on the promissory note. 2. Referring to the parties hereinafter as arrayed in the suit is expedient to mitigate potential confusion and better comprehend the case. 3. The factual matrix, necessary and germane for adjudicating the contentious issues between the parties inter se, may be delineated as follows: The 1st defendant has been doing business in the name and style of "Durga Enterprises' as its sole proprietor. 1st defendant, representing 2nd defendant, borrowed Rs.3, 00, 000.00 from the plaintiff on 19/3/2001 for his business purpose and executed the suit promissory note, agreeing to repay the same with interest @ 30 % per annum. The plaintiff paid the said amount to the defendants through Demand Drafts bearing Nos.686481 to 686487. Subsequently, the defendants made a part payments towards interest and principal on different dates totalling Rs.1, 61, 100.00 by 12/2/2017, but they paid interest up to 3/12/2005 only. Subsequently, the defendants made a part payment of Rs.100.00. After that, the defendants failed to pay the balance despite the plaintiff's repeated demands. The plaintiff issued a legal notice dtd. 11/4/2009 to the defendants, calling upon them to pay the balance amount, but the defendants did not respond. 4. The 2nd defendant adopted the 1st defendant's written statement, wherein they refuted the plaint averments and contended that no consideration was passed under the suit promissory note and the same was fabricated and forged; part payments mentioned in the plaint are not true and correct; in fact, the plaintiff has no capacity to lend such huge amounts; the plaintiff forged the endorsements made on the reverse of the promissory note to save limitation. 5. Based on the above pleadings, the trial Court framed the following issues: (1) Whether the suit pronote is true, valid and binding on the defendants? (2) To what relief? 6. During the trial, on behalf of the plaintiff, P.W.s 1 and 2 were examined and marked Exs.A.1 to A.5 and X.1 to X.10. 5. Based on the above pleadings, the trial Court framed the following issues: (1) Whether the suit pronote is true, valid and binding on the defendants? (2) To what relief? 6. During the trial, on behalf of the plaintiff, P.W.s 1 and 2 were examined and marked Exs.A.1 to A.5 and X.1 to X.10. On behalf of the defendants, the 1st defendant himself was examined as D.W.1, and no documents were marked. 7. After completion of the trial and hearing the arguments of both sides, the trial Court decreed the suit with costs against the defendants for Rs.4, 40, 112.00, with interest @ 12% p.a., on a principal amount of Rs.3, 00, 000.00from the date of suit till the date of decree, and after that at 6% p.a., from the date of decree till realization. 8. I have heard learned counsel appearing on behalf of the respective parties at length and have gone through the Judgment and findings recorded by the learned trial Court while decreeing the suit. I have also reappreciated the entire evidence on record, including the deposition of relevant witnesses examined by both sides. 9. Sri Yallabandi Ramatirtha, learned counsel representing the appellants/defendants, would submit thatthe trial Court has not dealt with the issues in proper perspective and has not considered the material evidence available on record; Ex.A.1 suit promissory note was a rank forged one and no consideration passed under it to the defendants; the trial Court erred in observing that the suit is in time; the trial Court instead of dismissing the suit on the ground of non-examination of any independent witness to prove the alleged transaction, erroneously thrown the liability on the defendants and decreed the suit; the trial Court reasoning in respect of Exs.X.1 to X.10 is not only erroneous but also contrary to the established principles of law; 10. Per contra, Sri Somu Krishna Murthy, learned counsel representing the respondent/plaintiff, argued that the trial Court correctly appreciated the case facts and reached a correct conclusion. The reasons given by the trial Court do not require any interference. 11. Per contra, Sri Somu Krishna Murthy, learned counsel representing the respondent/plaintiff, argued that the trial Court correctly appreciated the case facts and reached a correct conclusion. The reasons given by the trial Court do not require any interference. 11. Having regard to the pleadings in the suit, the findings recorded by the Trial Court and in light of the rival contentions and submissions made on either side before this Court, the following points would arise for determination: 1) Whether the Trial Court justified in holding that the plaintiff proved the execution of Ex.A.1 promissory note on receipt of consideration amount by the defendants and also part payment endorsements? 2) Whether the Judgment passed by the trial Court need any interference? POINT NOs.1 and 2: 12. Since there is a plea of forgery, denial of execution of the promissory note and part payment endorsements, the burden is on the plaintiff to prove the execution of the promissory note (Ex.A.1) and passing of consideration amount and the part payment endorsements (Ex.A.4 and A.5). 13. The plaintiff and 1st defendant were examined as PW.1 and DW.1, respectively. They reiterated their stand as per their respective pleadings.PW.1 testified that the 1st defendant, representing the 2nd defendant, borrowed Rs.3, 00, 000.00 from him on 19/3/2001 and executed Ex.A.1 promissory note, agreeing to repay the same with interest and made part payment of Rs.1, 000.00 on 25/2/2004 and made Ex.A.4 endorsement on the back side of Ex.A.1; he also made another partpayment of Rs.100.00 on 12/2/2007 and made Ex.A.5 endorsement on the back side of Ex.A.1. It is the DW.1's evidence that he never borrowed any amount from the plaintiff and no consideration passed under Ex.A.1 promissory note and it was fabricated; the part payments endorsements were also forged to get limitation of the promissory note. 14. The PW.1's evidence shows that he is doing finance business, and there are no attestors to Ex.A.1, Ex A4 and ExA5. It is trite beyond the pale controversy that the burden rests on the plaintiff's shoulders to prove the claim satisfactorily. Where both parties have chosen to advance their pleadings and adduce evidence, the concept of burden of proof loses its paramount significance. The totality of inputs will have to be reckoned by any prudent mind to decide whether the claim has been established and the plaintiff is entitled to a decree as prayed for. Where both parties have chosen to advance their pleadings and adduce evidence, the concept of burden of proof loses its paramount significance. The totality of inputs will have to be reckoned by any prudent mind to decide whether the claim has been established and the plaintiff is entitled to a decree as prayed for. As seen from the record, both parties have not examined witnesses in support of their case regarding the execution or non-execution of the promissory note (Ex.A.1) and part payment endorsements (Exs.A.4 and A.5). As such, the controversy will have to be decided based on oral evidence of PW.1 and DW.1. It would be a travesty of truth, justice and reasonableness to throw overboard the entire evidence and reject the claim lock, stock and barrel for the only reason that still better evidence has not been placed before the Court. Absolute certainty is not the requirement under Sec.3 of the Evidence Act. In a civil case, rival contentions and rival evidence will have to be considered, assessed, evaluated and weighed to conclude whether the burden on the plaintiff has been discharged. If prudence is the real test, it prescribes differing standards of proof in varying circumstances. Its requirements preclude any Procrustean bed of uniformly rigid rules for each type of case. 15. In M.Narsinga Rao V. State of Andhra Pradesh, (2001) 1 SCC 691 the Hon'ble Supreme Court held that: 15. The word "proof" needs to be understood in the sense it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word "proved" in the Evidence Act. What is required is the production of such materials on which the Court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. What is required is the production of such materials on which the Court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Company, Ltd., observed this : "Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion." 16. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching a conclusion, the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. The law gives absolute discretion to the Court to presume the existence of any fact that it thinks likely to have happened. In that process, the Court may have regard to the common course of natural events, human conduct, and public or private business vis-a-vis the facts of the particular case. The discretion is envisaged in Sec. 114 of the Evidence Act. 16. In R.Puthunainar Alhithan V. P.H.Pandian, (1996) 3 SCC 624 the Hon'ble Supreme Court held that an inference from the proved facts must be so probable that if the Court believes, from the proved facts, that the facts do exist, it must be held that the fact has been proved. The inference of proof of that fact could be drawn from the given objective, direct or circumstantial. 17. To prove the passing of consideration under Ex.A.1 promissory note, the plaintiff examined PW.2 U.Sudhakar, Manager of the Oriental Bank of Commerce. He produced Exs.X.1 to X.10 documents, i.e., copies of demand drafts, pay slips, and statements of accounts. The evidence of DW.1, PW.1 coupled with Exs.X.1 to X.10 clearly shows that Rs.3, 00, 000.00 was credited into the 1st defendant's account. Nothing is elicited in the cross-examination to discredit the PW.2's testimony. Even otherwise, Ex.A.1 promissory note clearly shows that the mode of payment through cheque No.686481 to 686487 demand drafts on Global Trust Bank Limited, Vijayawada. The evidence of DW.1, PW.1 coupled with Exs.X.1 to X.10 clearly shows that Rs.3, 00, 000.00 was credited into the 1st defendant's account. Nothing is elicited in the cross-examination to discredit the PW.2's testimony. Even otherwise, Ex.A.1 promissory note clearly shows that the mode of payment through cheque No.686481 to 686487 demand drafts on Global Trust Bank Limited, Vijayawada. The 1st defendant had not let in evidence that the amounts shown in Exs.X.1 to X.10 were not credited into his account. The evidence of PW.1 and DW.2, coupled with Exs.X.1 to X.10 and Ex.A.1, clearly establishes the payment of consideration to the 1st defendant. As the plaintiff paid the consideration through bank cheques and demand drafts, he has not displayed any interest in procuring the presence of attestors and scribe to witness the transaction. It is noteworthy that it is not the defendants' case that the said amounts were credited into their account in connection with a different transaction. As such, this Court has no reason to disbelieve the plaintiff's version that the said amount had been credited into the 1st defendant's account concerning the Ex.A.1 transaction. 18. Regarding the part payment endorsements, the plaintiff and defendants relied on their oral evidence as Exs.A.4 and A.5 transactions were not witnessed by any other person. So, this Court has to appreciate the oral evidence to conclude in this regard. 19. In Pottem Subbarayudu and another V. Kothapalli Gangulu Naidu and others., 2000 (5) ALT 759 the composite High Court of Andhra Pradesh held that: 17. There can be no straightjacket formula for the appreciation of oral evidence of the witnesses. The credibility of the witness is the paramount consideration for the Court. After passing the three legal tests, viz., relevancy, admissibility, and competence of the witness, while considering the credibility of the witness, the Court has to consider various parameters so as to appreciate the oral evidence on the point by testing the same on the touchstone of two important yardsticks viz., the probabilities and surrounding circumstances among various other parameters. Even when no rebuttal is adduced by the adversary, the ocular testimony of the witnesses examined on the side of the party on whom the burden lies cannot implicitly be relied upon without testing the same with reference to the probabilities and surrounding circumstances. Even when no rebuttal is adduced by the adversary, the ocular testimony of the witnesses examined on the side of the party on whom the burden lies cannot implicitly be relied upon without testing the same with reference to the probabilities and surrounding circumstances. The judgments of the Apex Court in Govinda v. Champa Bat, A.I.R. 1965 SC 354 and Chaturbhuj Pande v. Collector, Raigarh, would lend support to my above view. 20. The trial Court has accepted the PW.1's evidence regarding the part payment endorsements. This Court views that, undoubtedly, when a question is of fact, the decision depends upon appreciating the oral evidence in the case. The appellate Court has to bear in mind that it does not have the advantage that the trial judge had in having the witnesses before him and observing how they deposed in Court. A finding that a witness is telling the truth is of the greatest value when made by a judge who saw all the witnesses or at least the important ones on each side. The position is thus clear that ordinarily, weight should be attached to the trial judge's opinion regarding the credibility of the witnesses, and the appellate Court should not lightly brush aside his opinion. 21. In Pratap Singh V. Rajinder Singh and another., 1975 0 Supreme(SC) 74; 1975 0 AIR(SC) 1045 the Hon'ble Apex Court held that: 10................. There is no presumption that a witness, deposing on oath in the witness box, is untruthful unless he is shown to be, indubitably, speaking the truth. On the other hand, the ordinary presumption is tha witness deposing solemnly on oath before a judicial tribunal is a witness of truth unless the contrary is shown. 11. Our law of evidence does not require that a witness must be proved to be a perjurer before his evidence is discarded. It may be enough if his evidence appears to be quite improbable or to spring from such tainted, biased, or dubious a source as to be unsafe to be acted upon without corroboration from evidence other than that of the witness himself................ 22. The defendants contend that as they did not make the part payments, the suit claim is barred by limitation. Sec. 18 of the new Act (corresponding to sec. 19 of the old Act) deals with the effect of acknowledgement in writing, the relevant portion of which read thus: 18. 22. The defendants contend that as they did not make the part payments, the suit claim is barred by limitation. Sec. 18 of the new Act (corresponding to sec. 19 of the old Act) deals with the effect of acknowledgement in writing, the relevant portion of which read thus: 18. Effect of acknowledgement in writing.- (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. Thus, it is clear that as per Sec. 18 of the Limitation Act, the limitation of years starts from the date of signing the acknowledgement; a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. As the part payment amounts were said to be made within three years, it is not open to the defendants to contend that the suit claim is not within the limitation period; it is subject to establishing part payment endorsements. Now, it is to be seen whether the PW.1's evidence can be accepted regarding the part payment endorsements in the absence of the independent evidence. 23. In Civil cases, the preponderance of probability constitutes a sufficient ground for decision if the facts and circumstances are such that no reasonable man would draw a particular inference from them or if the degree of probability in the case is such that as to include any hypothesis besides the one to be proved then the party who relies on a particular theory cannot be said to have discharged the onus of proof of establishing that theory. But, if the evidence is strongly prepondering in favour of any of the two theories set up, the Court is entitled to act on it. 24. Both parties did not take steps to compare the signatures on Ex.A.1, Ex.A.4 and Ex.A.5 by sending the same to an Expert. Under the law, it is always open for the Court to compare the signature on the disputed document with the admitted signatures of the defendants and witnesses (attestors). 24. Both parties did not take steps to compare the signatures on Ex.A.1, Ex.A.4 and Ex.A.5 by sending the same to an Expert. Under the law, it is always open for the Court to compare the signature on the disputed document with the admitted signatures of the defendants and witnesses (attestors). The rule of prudence and caution requires that, in the first place, expert opinion should be obtained for assistance. If such an opinion is not available, the Court has to compare the disputed writings and come to its conclusion. 25. Sec. 73 of the Evidence Act expressly enables the Court to compare the disputed writings with admitted or proved writings to ascertain whether the writing is that of the person by whom it purports to have been written. Both parties have not opted for a comparison of the signatures by the handwriting expert, this Court views that when the party who relies on the disputed document expresses an apprehension that the document of recent origin or the farthest document shall not be suitable for making the comparison, the admitted or proved contemporary signatures alone should be used for such comparison. Thus, it is clear that if the person who relied on the disputed signature believes that the admitted signature is not disguised, it is good enough for comparison. The trial Court has not taken pains to compare the signatures. There is no express provision in the Code of Civil Procedure which takes away from an appellate court, in cases in which that Code provides for an appeal from an original decree, the power to review and evaluate the evidence of the witnesses independently of the conclusion reached by the trial court regarding the credibility of their evidence. 26. The Hon'ble Supreme Court in Murarilal V. State of M.P., A.I.R. 1980 SC 531 observed that the duty of the Court to compare the writings and to come to its conclusion cannot be avoided by recourse to the statement that the Court is not an Expert. It is thus clear from the above observation of the Apex Court that under Sec. 73 of the Evidence Act, the Court can compare the disputed and admitted handwriting or signature to come to its own conclusion. It is thus clear from the above observation of the Apex Court that under Sec. 73 of the Evidence Act, the Court can compare the disputed and admitted handwriting or signature to come to its own conclusion. However, provisions of Sec. 73 of the Evidence Act have been interpreted by various Courts as to how the signatures or handwritings are to be compared when there is no assistance from the Expert. 27. I undertook a thorough comparison between the signatures of the 1st defendant that were admitted and disputed signatures found in Ex.A.1, Ex.A.4 and Ex.A.5. No disparities were evident between the admitted signatures and disputed ones. After carefully comparing the signatures, I don't doubt that the disputed and admitted signatures appeared to be signed by the same individual. 28. Trite, the proposition of law is that witnesses might lie, but the circumstances would not do so. In this factual matrix, I could observe that the 1st defendant, before putting forth his plea, should have thought on his feet, and his plea is economical with truth. The lower Court could not see the wood for trees. To the risk of repetition and pleonasm, but without being tautologous, I would like to observe that it is open for the 1st defendant to take any plea, but it should be in conformity with probability. The evidence adduced on behalf of the defendants regarding the nonpassing of consideration amount clearly shows that they have no regard for truth. Despite the availability of documentary evidence and the payment of consideration being supported by cheques, demand drafts, and bank accounts, they unhesitantly disputed the passing of the consideration amount. Despite lengthy cross-examination, nothing is elicited in the PW.1's evidence to discredit his evidence. This Court finds no reason to disbelieve PW.1's evidence regarding the execution of the promissory note (Ex.A.1) and part payment endorsements (Ex.A.4 and A.5). The very plea of the defendants regarding non-payment of consideration, in my opinion, is too big a pill to swallow. No doubt, at times, truth may be stranger than fiction. But civil Courts should go by preponderance of probabilities in adjudicating the law. As such, these are all creating severe doubt about the genuineness of the plea of the defendants. 29. As already observed, though the defendants have received the consideration amount through bank transactions, they blatantly disputed the passing of consideration under Ex.A.1 transaction. But civil Courts should go by preponderance of probabilities in adjudicating the law. As such, these are all creating severe doubt about the genuineness of the plea of the defendants. 29. As already observed, though the defendants have received the consideration amount through bank transactions, they blatantly disputed the passing of consideration under Ex.A.1 transaction. Furthermore, it is PW.1's evidence that he sent a legal notice (Ex.A.2) to the defendants, who received the same vide postal acknowledgement (Ex.A.3). The service of legal notice is not disputed. Admittedly, the defendants had not issued a reply notice. 30. The defendants, who received such notice before filing the suit, did not even choose to send a reply denying the borrowing and the execution of the promissory note. The defendants have not explained the reason for not responding to the legal notice. This circumstance goes a long way in showing that the suit debt is true and that the defendants had chosen to come up with a belated and false theory both about the borrowing of the amount and the execution of the promissory note and part payment endorsements. 31. Once the evidence on record establishes the payment of consideration through the bank cheques and demand drafts to the defendants, they are not supposed to question the plaintiff's financial capacity. 32. The defendants are unable to show any reason or circumstance to disbelieve the PW.1's evidence regarding the execution of the promissory note by 1st defendant and passing of consideration and part payment endorsements. The PW.1's evidence is consistent regarding the execution of the promissory note and part payment endorsements by the 1st defendant. Though PW.1 was subjected to lengthy cross-examination, nothing was elicited to discredit his evidence. The plaintiff has no reason to fabricate the suit promissory note and part payment endorsements. It is not the 1st defendant's case that he has enmity with the plaintiff to create the suit promissory note. However, even the rebuttal could be given by direct evidence or by proving on record the preponderance of probabilities. In the present case, the presumption has not been rebutted by the defendants, even by the preponderance of probabilities. Ex.A.1 promissory note shows that the plaintiff has lent the amount to the defendants even without securing the presence of the witnesses. However, even the rebuttal could be given by direct evidence or by proving on record the preponderance of probabilities. In the present case, the presumption has not been rebutted by the defendants, even by the preponderance of probabilities. Ex.A.1 promissory note shows that the plaintiff has lent the amount to the defendants even without securing the presence of the witnesses. As the consideration amount was paid through the cheques and demand drafts, he has not procured the presence of witnesses to prove the transaction. As such, it is quite probable that he did not involve the witnesses at the time of Ex.A.4 and Ex.A.5 transactions out of confidence on the defendants. 33. The defendants failed to prove the contentions regarding nonpayment of consideration by leading cogent evidence. They were not successful in showing the improbability of the consideration. The defence taken by the defendants is not substantiated. 34. After careful consideration, the trial Court had adequately appreciated the evidence. There is no reason for this Court to arrive at a different conclusion than the one arrived at by the trial Court. I believe the findings arrived at by the trial Court are correct, and no justifiable reasons have been shown by the appellants/defendants for arriving at different conclusions. I agree with the conclusion reached by the trial Court. 35. Accordingly, the Points are answered in favour of the plaintiff by holding that the Trial Court is justified in holding that the 1st defendant executed the suit promissory note and received the consideration amount there under and made part payment endorsements. Given the preceding discussion, the view taken by the trial court does not call for any interference, and this Appeal fails and is hereby dismissed. The impugned Decree and Judgment passed by the trial court is upheld. 36. As a result, the Appeal is hereby dismissed without costs by confirming the Decree and Judgment in O.S.No.832 of 2009, dtd. 4/6/2012, passed by the learned V Additional Senior Civil Judge (Fast Track Court), Vijayawada. Miscellaneous petitions pending, if any, in this Appeal, shall stand closed.