JUDGMENT 1. Challenge in this Appeal Suit is to the judgment, dtd. 16/12/2016, in Original Suit No.280 of 2012 on the file of the Court of Principal Senior Civil Judge, Guntur (for short, 'the learned Senior Civil Judge'), where under the learned Principal Senior Civil Judge decreed the suit of the plaintiff for a sum of Rs.8, 58, 665.00 with subsequent interest at 12% per annum from the date of suit till the date of decree and thereafter at 6% per annum on the principal sum of Rs.5, 00, 000.00. 2. The parties to this Appeal Suit will hereinafter be referred to as described before the trial Court, for the sake of convenience. 3. The case of the plaintiff, in brief, according to the averments in the plaint is that, plaintiff and her husband are the family friends of the defendant since 10 years. Defendant is cordially related to the plaintiff's husband and his family members. Defendant's family members also have good acquaintance with the family of the plaintiff. In the month of March, 2009, the defendant requested the plaintiff and her husband to lend a sum of Rs.5, 00, 000.00 for the purpose of his business, agreeing to repay the same within two months with interest at 24% p.a. Plaintiff is having an account in ICICI Bank, Lakshmipuram, Guntur vide Account No.630701521932 with cheque book facility. She lent a sum of Rs.5, 00, 000.00 as hand loan to the defendant by way of cheque bearing No.518963, dtd. 6/3/2009, drawn on ICICI Bank, PMG Complex, Lakshmipuram Main Road, Guntur through her Account bearing No.630701521932. She handed over the cheque to the defendant and the defendant encashed the same through his account. Plaintiff's bank statement clearly reveals that, on 7/3/2009, the defendant encashed the same but he did not choose to repay the same within the time. She demanded the defendant but the defendant postponed the same on one pretext or the other. Plaintiff got issued a registered legal notice on 24/2/2012 to the defendant demanding him to repay the debt due under the above referred hand loan. The counsel for the plaintiff did not receive any postal acknowledgment or the returned notice. Hence, the Suit. 4. The defendant is bound to pay the interest as per the contract rate. He is not an agriculturist. The amount was taken from the plaintiff for his business purpose. The counsel for the plaintiff did not receive any postal acknowledgment or the returned notice. Hence, the Suit. 4. The defendant is bound to pay the interest as per the contract rate. He is not an agriculturist. The amount was taken from the plaintiff for his business purpose. Hence, the interest need not be scaled down. 5. The defendant got filed a written statement denying the case of the plaintiff and his contention, in brief, according to the written statement is that he has no intimacy or relationship with the plaintiff. The defendant is well established and highly educated by completing his graduation in Law and also practicised as Advocate at High Court, Hyderabad. After some time of carrying out in the profession, he intended to serve public and entered into the politics more than two decades ago. He developed his career in Telugu Desam Party and was elected as a Member of Legislative Assembly for two times and also worked as Minister for Technical Education. The true facts are that husband of the plaintiff is known to the defendant as the father-in-law of the defendant viz., K. Raghavaiah Chowdary and plaintiff carried out some business activities in construction of Apartments. Father-in-law of the defendant viz., K. Raghavaiah Chowdary passed away more than two years ago. As the plaintiff and her husband raised some apartments during the lifetime of father-in-law of the defendant, the defendant parted a hand loan to the plaintiff and towards the discharge of the said hand loan, plaintiff issued a cheque towards discharge of that liability. Taking advantage of the goodness of the defendant, plaintiff in a different version filed the suit as if he took the amount from the plaintiff. Without any proof of transaction, plaintiff cannot agitate against the defendant. Unless there is an instrument of contracting the debt, the plaintiff cannot succeed basing on the cheque. Hence, the Suit is to be dismissed. 6. On the basis of the above pleadings, as evident from the judgment of the Principal Senior Civil Judge, the following issues were settled for trial: 1) Whether the plaintiff lent Rs.5, 00, 000.00 by issuance of cheque No.518963 on 6/3/2009 to the defendant? 2) Whether the plaintiff is entitled for the suit amount? 3) To what relief? 7. 6. On the basis of the above pleadings, as evident from the judgment of the Principal Senior Civil Judge, the following issues were settled for trial: 1) Whether the plaintiff lent Rs.5, 00, 000.00 by issuance of cheque No.518963 on 6/3/2009 to the defendant? 2) Whether the plaintiff is entitled for the suit amount? 3) To what relief? 7. During the course of trial, the plaintiff examined herself as PW.1 and got marked Ex.A-1 - statement of account of ICICI Bank, Lakshmipuram pertaining to her account covering the period from 1/2/2009 to 1/4/2009 and Ex.A-2 - the office copy of legal notice, dtd. 24/2/2012, with postal receipt. Defendant examined himself as DW.1 but no documents were marked on his behalf. 8. The learned Principal Senior Civil Judge, on hearing both sides and after considering the oral and documentary evidence on record, decreed the suit of the plaintiff, as above. 9. Felt aggrieved of the aforesaid judgment and decree, the unsuccessful defendant therein filed the present Appeal. 10. Now in deciding the present Appeal, the points that arise for determination are as follows: 1) Whether the plaintiff before the learned Principal Senior Civil Judge proved that she lent an amount of Rs.5, 00, 000.00 to the defendant as hand loan as such she is entitled to the suit claim? 2) Whether the judgment, dtd. 16/12/2016 in O.S. No.280 of 2012 is sustainable under law and facts? POINT Nos.1 and 2: 11. PW.1 before the trial Court was no other than the plaintiff and she got filed her chief-examination affidavit in tune with the averments of the plaint. On the other hand, the defendant got filed his chief-examination affidavit putting forth his defence in tune with the pleadings. 12. Sri A.S.K.S. Bhargav, learned counsel, representing Sri P. Nagendra Reddy, learned counsel for the appellant, would contend that the basis for the plaintiff to file a suit for recovery of the money was her statement of account under Ex.A-1. Her case is that she lent an amount of Rs.5, 00, 000.00 to the defendant under a cheque, which was encashed. Plaintiff did not prove any privity of contract in the form of any document. Mere encashment of cheque by the defendant would not mean that he borrowed the amount from the plaintiff. Her case is that she lent an amount of Rs.5, 00, 000.00 to the defendant under a cheque, which was encashed. Plaintiff did not prove any privity of contract in the form of any document. Mere encashment of cheque by the defendant would not mean that he borrowed the amount from the plaintiff. The plaintiff could only establish the fact that defendant encashed the cheque issued by her, but the plaintiff failed to connect the said encashment with any contract of debt between her and the defendant. In fact, the defendant had no intimacy with the plaintiff. Fact remained is that PW.1, her husband and father-in-law of the defendant did some business in the construction of apartments and one year prior to the suit, the father-in-law of the defendant died. As the defendant, being sonin-law of the said Raghavaiah Chowdary, made some participation in the settlement, the plaintiff bore grudge and filed the Suit connecting the encashment of cheque to that of alleged debt borrowed by the defendant from the plaintiff. The claim of the plaintiff is wholly unsustainable under law and facts. Nothing could be elicited during the cross-examination of DW.1 though he denied the case of the plaintiff. The defendant had no necessity whatsoever to borrow the amounts. He is well to do in terms of finance and he enjoys a great status in the society being elected MLA of two terms and also served as a Minister. Considering the same, it is quite improbable that he ventured to borrow an amount of Rs.5, 00, 000.00 from the plaintiff. In fact, it is the defendant who lent the amount of Rs.5, 00, 000.00 to the plaintiff and plaintiff repaid the same by issuing a cheque to the defendant. He would contend that the learned Principal Senior Civil Judge erroneously decreed the suit of the plaintiff. He would rely upon a decision of the Telangana High Court in M. Narasimha Rao v. R. Hanumantha Rao, (2023) 04 TEL CK 0032. (City Civil Court Appeal No.165 of 2018, dtd. 12/4/2022), and further a decision of the Karnataka High Court in Sri Pawan Ahuja v. M/s. Saravana Alloy Steels and another, 2022 Latest Caselaw 89 Kant. (Regular First Appeal No.713 of 2018, dtd. 4/1/2022). With the above submissions, he would contend that the Appeal is liable to be allowed. 13. (City Civil Court Appeal No.165 of 2018, dtd. 12/4/2022), and further a decision of the Karnataka High Court in Sri Pawan Ahuja v. M/s. Saravana Alloy Steels and another, 2022 Latest Caselaw 89 Kant. (Regular First Appeal No.713 of 2018, dtd. 4/1/2022). With the above submissions, he would contend that the Appeal is liable to be allowed. 13. Sri M. Chalapathi Rao, learned counsel for the respondent, would contend that the cheque is no other than a Negotiable Instrument. Ex.A-1 - statement of account pertains to the bank account of the plaintiff, which reveals that the cheque issued by her was encashed by the defendant. Defendant admitted the factum of encashment. There is evidence of PW.1 to connect the transaction in Ex.A-1 with that of a loan. On the other hand, the plea of the defendant that he lent the amount to the plaintiff and after that plaintiff repaid the amount to him is bereft of necessary details. Neither in the written statement nor in the evidence of DW.1 there was any mention on which date he lent the amount to the defendant. He did not make any pleading that he lent such an amount to the plaintiff by way of any cheque or by way of any other mode of transfer. So, it is not clear from his written statement that as to whether he gave the alleged loan amount to the plaintiff by way of any cash. If it is his case that he lent the amount to the plaintiff by way of cash, he would have requested the plaintiff to pay back the amount in cash. Here, that was not done. So, the fact remained is that he failed to explain why he encashed the cheque from the plaintiff. In the absence of establishing that the encashment of cheque by him was only towards repayment of loan by the plaintiff, the case of the plaintiff is to be accepted. With all vagueness, the defendant sought to defeat the claim of the plaintiff. As the defendant encashed the amount by virtue of a negotiable instrument, it creates a liability on the part of the defendant to account for it. Plaintiff proved her case in the manner as pleaded but the defendant failed to prove his case. In a case of this nature, the Court has to look into the preponderance of the probabilities. As the defendant encashed the amount by virtue of a negotiable instrument, it creates a liability on the part of the defendant to account for it. Plaintiff proved her case in the manner as pleaded but the defendant failed to prove his case. In a case of this nature, the Court has to look into the preponderance of the probabilities. If the preponderance of the probabilities is weighed, plaintiff is entitled to a decree. The decisions cited by learned counsel for the appellant would not be helpful in any way to the defence of the defendant. With the above submissions, learned counsel for the respondent seeks to dismiss the Appeal. 14. Sri A.S.K.S. Bhargav, learned counsel, representing learned counsel for the appellant, during the course of reply, would submit that without there being any basis, the trial Court allowed the plaintiff to claim interest at the rate of 24% per annum till the date of filing of the Suit which is not at all tenable to law. He would submit that in the absence of proof of any contract to that effect, the Appeal is liable to be allowed. 15. As seen from Ex.A-1, there was an entry to the effect that cheque issued by the plaintiff for a sum of Rs.5, 00, 000.00 was encashed by the defendant on 7/3/2009. These facts are not in dispute. During cross-examination, PW.1 deposed that she knows the defendant for the past 15 years as such she knows his wife and his father-in-law. She deposed that she, her husband and K. Raghavaiah Chowdary, father-in-law of the defendant, did business in construction of apartments. One year prior to it, he died. She denied that after the death of Raghavaiah Chowdary, there was a settlement with regard to the distribution and profits and the defendant being the son-in-law of Raghavaiah Chowdary participated in the said settlement. She denied that to avoid to give profits to the wife of the defendant and as to threaten the defendant, she filed the present Suit. She denied that she received a sum of Rs.5, 00, 000.00 for her expenses from the defendant in view of the cordial relations between her and Raghavaiah Chowdary and she issued cheque for Rs.5, 00, 000.00 for repayment of the same. Except the cheque and bank transaction, there is no other document to show that the defendant borrowed the amount from her. Except the cheque and bank transaction, there is no other document to show that the defendant borrowed the amount from her. She denied that she is deposing false. 16. Coming to the cross-examination of DW.1, he admitted that in the month of March, 2009, PW.1 gave a cheque drawn on ICICI bank for a sum of Rs.5, 00, 000.00 and the amount was encashed by him. He volunteers that PW.1 gave the cheque towards discharge of the amount due to him. There is no proof to show that he lent the amount of Rs.5, 00, 000.00 to PW.1. Even he was unable to say the date of lending of that amount. He denied that PW.1 never asked money and that he did not lent the amount. He denied that plaintiff issued notice on 24/2/2012 demanding him to pay the amount and he failed to give any reply. He denied that he is liable to pay the suit claim. 17. The admitted facts are that the cheque issued by the plaintiff in the month of March, 2009 for a sum of Rs.5, 00, 000.00 was encashed by the defendant. There is no dispute that the cueque issued by the plaintiff would come under the purview of negotiable instrument. According to Sec. 13 of the Negotiable Instruments Act, 1881 (for short, 'the NI Act') a 'negotiable instrument' means a promissory note, bill of exchange or cheque payable either to order or to bearer. So, the simple question that falls for consideration is whether the encashment of cheque of Rs.5, 00, 000.00 by the defendant was towards the amount borrowed by him from the plaintiff or towards the repayment of amount made by the plaintiff. As admitted by him in cross-examination, there is no written proof to show that he lent the amount of Rs.5, 00, 000.00 to PW.1. Even he cannot give the date of lending of that amount. 18. The written statement of the defendant or the evidence of DW.1 would not present anything as to on which date he lent a sum of Rs.5, 00, 000.00 to the plaintiff. The defence of the defendant in this regard is bereft of necessary details. Under the circumstances, the evidence on record reveals that the defendant accepted the payment under the cheque and encashed it and virtually he negotiated with the instrument by receiving the amount. The defence of the defendant in this regard is bereft of necessary details. Under the circumstances, the evidence on record reveals that the defendant accepted the payment under the cheque and encashed it and virtually he negotiated with the instrument by receiving the amount. The defendant, in my considered view, did not probabilize his contention with any valid pleadings that what was encashed by him under the cheque was only towards the amount due from the plaintiff. 19. There need not be any promissory note or agreement in writing to prove the privity of contract between the plaintiff and the defendant. The issuance of cheque by the plaintiff which was a negotiable instrument and the acceptance of the cheque by the defendant by encashing the same, coupled with the evidence of PW.1, would establish a privity of contract between the plaintiff and the defendant. In my considered view, the plaintiff discharged her burden to prove that she lent an amount of Rs.5, 00, 000.00 to the defendant under the cheque, which is nothing but a negotiable instrument. It is for the defendant to prove contrary. It is no doubt true that if the defendant is able to probabilize that he lent the amount to the plaintiff and encashment of cheque by him was only towards repayment of the debt, he can succeed. Here, absolutely, he did not have pleading on which date he lent the amount to the plaintiff. It is not his case that whether he lent the amount to the plaintiff by way of any cheque or otherwise. If there was any probability for the defendant to lend the amount to the plaintiff by way of any cash, he would have insisted the plaintiff to pay back the amount in cash instead of getting issued a cheque for a sum of Rs.5, 00, 000.00. Absolutely, pleadings are missing in this regard. In a case of this nature, as rightly contended by learned counsel for the respondent, Court has to weigh the preponderance of the probabilities. In the case on hand, the preponderance of probabilities is clearly in favour of the plaintiff. 20. Absolutely, pleadings are missing in this regard. In a case of this nature, as rightly contended by learned counsel for the respondent, Court has to weigh the preponderance of the probabilities. In the case on hand, the preponderance of probabilities is clearly in favour of the plaintiff. 20. Having regard to the above, this Court is of the considered view that evidence on record would prove the fact that the payment of Rs.5, 00, 000.00 by the plaintiff to the defendant under the cover of cheque can only be by lending the amount as hand loan but not by way of repayment of any loan to the defendant as contended by the defendant. The decision of High Court of Telangana in M. Narasimha Rao (1st supra), sought to be relied upon by learned counsel for the appellant, has nothing to do with the present situation. It is a case based upon the promissory note and looking into the facts and circumstances, the High Court of Telangana reversed the judgment of the trial Court. It is not helpful to the appellant in any way. Similarly, the decision of Karnataka High Court, sought to be relied upon by learned counsel for the appellant, in Sri Pawan Ahuja (2nd supra) is not useful to the appellant in any way. 21. Another contention of learned counsel for the appellant is that without there being any terms of contract, the learned Principal Senior Civil Judge upheld the claim of the plaintiff for interest at 24% p.a. from 6/3/2009 to till the date of filing of the suit which is not tenable. It is to be noted that the case of the plaintiff is that he lent an amount of Rs.5, 00, 000.00 to the defendant which was supposed to be paid within two months and the defendant agreed to pay interest at 24% p.a. Though there was no document evidencing the stipulation of interest but the defendant failed to prove his defence that what was paid by the plaintiff was only towards the amount borrowed by her. It is a case where the plaintiff instituted the Suit in the month of March, 2012 when she lent the amount to the defendant on 6/3/2009 which was stipulated to be paid in two months but the evidence on record reveals that the defendant did not pay back the amount. It is a case where the plaintiff instituted the Suit in the month of March, 2012 when she lent the amount to the defendant on 6/3/2009 which was stipulated to be paid in two months but the evidence on record reveals that the defendant did not pay back the amount. Considering the same, this Court does not see any ground to disallow the plaintiff from claiming the interest. 22. A perusal of the judgment of learned Principal Senior Civil Judge reveals that he duly considered the evidence available on record and rightly upheld the claim of the plaintiff. The defendant, in my considered view, put up an improbable defence and he failed to probabilize his defence with any consistent evidence. Hence, I am of the considered view that the judgment, dtd. 16/12/2016, in O.S. No.280 of 2012 is sustainable under law and facts and there are no grounds to interfere with the same. 23. In the result, Appeal Suit is dismissed with costs confirming the decree and judgment, dtd. 16/12/2016 in O.S. No.280 of 2012 on the file of the Court of Principal Senior Civil Judge, Guntur. Consequently, Miscellaneous Applications pending, if any, shall stand closed.