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2024 DIGILAW 760 (AP)

K. Venkateswara Rao v. V. Satyavatamma

2024-07-10

V.GOPALA KRISHNA RAO

body2024
JUDGMENT : V. Gopala Krishna Rao, J. 1. This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellant/plaintiff challenging the Decree and Judgment, dated 26.03.1999, in O.S. No. 16 of 1997 passed by the learned Senior Civil Judge, Rajam [for short 'the trial Court']. The Respondent herein is the defendant in the said Suit. 2. The appellant/plaintiff filed the Suit for recovery of a sum of Rs. 1,52,160/- being the principal and interest due on a promissory note dated 25.01.1996 executed by the defendant in favour of plaintiff for Rs. 1,20,000/- and for costs. 3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court. 4. The brief averments of the plaint, in O.S. No. 16 of 1997, are as under: The defendant borrowed an amount of Rs. 1,20,000/- from the plaintiff on 25.01.1996 for the purpose of purchasing cattle and constructing house at Rajam and executed a promissory note on the same day in favour of plaintiff agreeing to repay the same with interest at 18% per annum. But, inspite of several demands made by the plaintiff, defendant did not choose to pay any amount and has been postponing the same on one pretext or other. Hence, the plaintiff is constrained to file the suit. 5. The defendant filed a written statement by denying the averments mentioned in the plaint and further contended as under: This defendant has no necessity to borrow money from anybody much less from the plaintiff and the plaintiff is not a man having capacity to lend money and he has no capacity even to lend Rs. 10/- to anybody. The defendant further pleaded that the purpose for borrowing the loan is for completion of the construction of the house is nothing but false as the husband of the defendant alone constructed the house with his exertions by 1994 itself. Therefore, when the husband of the defendant has already completed the construction of the house in 1994 itself, this defendant has no necessity to borrow amount from anybody for completion of construction of the house. Therefore, when the husband of the defendant has already completed the construction of the house in 1994 itself, this defendant has no necessity to borrow amount from anybody for completion of construction of the house. So the recitals of the pronote itself indicates that the pronote was a created one with a view to harass the defendant due to enmity existing between the husband of the defendant and the plaintiff due to the misappropriation committed by the plaintiff during the chit business run by the husband of the defendant and the plaintiff. 6. Based on the above pleadings, the trial Court framed the following issues: (i) Whether the suit pronote is true, valid and supported by consideration? (ii) To what relief? 7. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 to PW4 were examined and Ex.A1 was marked. On behalf of the Defendant DW1 to DW3 were examined and Ex.B1 to Ex.B4 were marked. 8. After completion of the trial and on hearing the arguments of both sides, the trial Court dismissed the suit vide its judgment, dated 26.03.1999, against which the present appeal is preferred by the appellant/plaintiff in the Suit questioning the Decree and Judgment passed by the trial Court. 9. Heard Smt. K. Rajya Lakshmi, learned counsel for appellant/plaintiff through virtual hearing and Sri P. Ajay Babu, learned counsel, representing Sri M.V.S. Suresh Kumar, learned counsel for respondent/defendant. 10. The learned counsel for appellant would contend that the Court below failed to observe that the evidence of PW1 to PW4 clearly proves that the defendant borrowed the amount under Ex.A1 promissory note and she would further contend that instead of decreeing the suit the Court below dismissed the suit. She would further contend that the Court below should have seen that in view of the admission of the defendant about the signature on Ex.A1, the burden lies on the defendant to prove the Ex.A1 is not supported with consideration. She would further contend that the defendant failed to establish that the appellant obtained blank signed papers only with a view to create the suit promissory note. She would further contend that the learned trial Judge instead of decreeing the suit dismissed the suit and that the appeal may be allowed and the suit may be decreed. 11. She would further contend that the defendant failed to establish that the appellant obtained blank signed papers only with a view to create the suit promissory note. She would further contend that the learned trial Judge instead of decreeing the suit dismissed the suit and that the appeal may be allowed and the suit may be decreed. 11. Per contra, the learned counsel for respondent would contend that on appreciation of entire evidence on record, the learned trial Judge rightly dismissed the suit and there is no need to interfere with the finding given by the learned trial Judge. 12. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this Court, the following points would arise for determination: 1. Whether the trial Court is justified in holding that Ex.A1 suit pronote is not true, valid and binding on the defendant? 2. Whether the decree and judgment passed by the trial court needs any interference? 13. Point Nos. 1 and 2: The defendant has taken a plea in the written statement and deposed as DW1 disputing the execution of Ex.A1 promissory note by contending that her signatures are obtained on empty papers and she did not execute any pronote in favour of the plaintiff. She further pleaded that her husband and plaintiff are very close associates in connection with chit business and in that connection the plaintiff made believe the defendant and her husband to sign on the blank white papers containing stamps as a security in the money transactions of the chit and obtained her signatures on the stamps on blank white papers with a promise that their signatures are obtained formally for smooth running of chit business and by using the said blank signed papers, the plaintiff might have created the suit pronote. As seen from Ex.A1 pronote, the suit pronote contains the alleged thumb mark of the defendant only, the defendant is not a signatory. An overall reading of the written statement and evidence of defendant goes to show that the defendant is disputing Ex.A1 and execution of Ex.A1 is denied by the defendant. Therefore, the initial burden is on the plaintiff to establish the suit pronote is true and genuine transaction. 14. An overall reading of the written statement and evidence of defendant goes to show that the defendant is disputing Ex.A1 and execution of Ex.A1 is denied by the defendant. Therefore, the initial burden is on the plaintiff to establish the suit pronote is true and genuine transaction. 14. To substantiate the case of the plaintiff, the wife of the plaintiff is examined as PW1 and examined the second attestor in the pronote as PW2 and the scribe is examined as PW3 and third attestor is examined as PW4. Though PW1 is not an attestor or scribe of the suit pronote, her evidence goes to show that she was present at the time of execution of Ex.A1. PW2 to PW4 constantly stated in their evidence that the Ex.A1 transaction has taken place in their presence and it was attested by one Appalaraju, PW2 and PW4 and scribed by PW3 and in their presence the plaintiff lend an amount of Rs. 1,20,000/- to the defendant on 25.01.1996 and on receipt of the consideration, the defendant executed Ex.A1 promissory note. 15. The learned counsel for respondent would contend that the PW2 is son-in-law of PW1, therefore, his evidence cannot be taken into consideration. No doubt, PW1 admitted in her evidence in cross examination that PW2 is her son-in-law. PW2 deposed in his evidence about borrowing of Rs. 1,20,000/- by the defendant from the plaintiff and also execution of Ex.A1 promissory note and in his presence the defendant affixed her thumb mark on the suit pronote. His evidence further goes to show that the entire consideration of Rs. 1,20,000/- was passed from the plaintiff to the defendant in his presence. In cross examination the evidence of PW2 is not shattered on the material aspects of the case. It was suggested to PW2 in cross examination by the leaned counsel for defendant on account of the differences between the plaintiff and the husband of the defendant in chit fund business the suit pronote was fabricated and forged. The said suggestion is denied by PW2. It was not suggested to PW2 in cross examination by the learned counsel for defendant that in view of the relation with PW1, PW2 deposed falsehood. On the sole ground PW2 is son-in-law of PW1, the entire evidence of PW2 cannot be thrown out, the evidence of PW2 has to be scrutinized with due care and caution. It was not suggested to PW2 in cross examination by the learned counsel for defendant that in view of the relation with PW1, PW2 deposed falsehood. On the sole ground PW2 is son-in-law of PW1, the entire evidence of PW2 cannot be thrown out, the evidence of PW2 has to be scrutinized with due care and caution. The evidence of PW2 clearly supported the evidence of PW1, in cross examination nothing was elicited from PW2 to discredit the testimony of PW2. 16. PW3, who is the scribe of the pronote also stated in his evidence that the entire consideration of Rs. 1,20,000/- was passed in his presence and he scribed the promissory note. Furthermore, his evidence clearly goes to show that in his presence, the entire transaction was happened and the defendant put the thumb mark on the Ex.A1 pronote. It was contended by the learned counsel for respondent that PW3 is a convicted in a murder case and that his evidence cannot be considered. No doubt PW3 admitted in his evidence in cross examination that he was convicted in a Sessions Case, but he clearly admits that the appeal is pending against the judgment passed by the Sessions court. On the sole ground that PW3 was convicted in a murder case, his entire evidence cannot be thrown out. In cross examination, he admits that Prabhakar is the son-in-law of the plaintiff and Janardhan is working in telephone exchange and in his presence the entire pronote transaction was happened. It was suggested to PW3 in cross examination by the learned counsel for respondent that no consideration was passed under Ex.A1 and after receiving the money from the plaintiff he created the suit pronote. The said suggestion was denied by PW3. It is not the case of the defendant that after receiving money from the plaintiff PW3 created the suit pronote. It was not suggested to PW1 by the learned counsel for defendant that the plaintiff gave money to PW3 and that PW3 created the suit pronote. It was suggested to PW1 in cross examination by the learned counsel for defendant that the suit pronote was fabricated with cooperation and assistance of the some of their people, who acted as attestors and scribe. The said suggestion is denied by PW1. The third attestor in Ex.A1 pronote is examined as PW4. It was suggested to PW1 in cross examination by the learned counsel for defendant that the suit pronote was fabricated with cooperation and assistance of the some of their people, who acted as attestors and scribe. The said suggestion is denied by PW1. The third attestor in Ex.A1 pronote is examined as PW4. The learned counsel for respondent submit that PW4 is the friend of son-in-law of PW1. No doubt PW4 admits that he is the friend of son-in-law of PW1. It was suggested to PW4 in cross examination by the learned counsel for defendant that because he is the friend of son-in-law of the plaintiff he deposed falsehood. The said suggestion is denied by PW4. It is not the case of the defendant that due to his enimity with PW3 and PW4, they deposed falsehood against the defendant. 17. In the case of Pottem Subbarayudu and another v. Kothapalli Gangulu Naidu and others, 2000 (5) ALT 759 , the composite High Court of Andhra Pradesh held as follows: 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 touch stone 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. The judgments of the Apex Court in Govinda (sic Ramchandra Rambux) v. Champa Bai, 1964 INSC 37 : AIR 1965 SC 354 and Chaturbhuj Pande v. Collector, Raigarh, 1968 INSC 159 : AIR 1969 SC 255 , would lend support to my above view. Let us therefore see the voluminous oral evidence: on the side of the defendants and that of PWs. 1 and 2 on the side of the plaintiffs: how far and to what extent stands the judicial scrutiny. Let us therefore see the voluminous oral evidence: on the side of the defendants and that of PWs. 1 and 2 on the side of the plaintiffs: how far and to what extent stands the judicial scrutiny. In the case on hand, the evidence on record amply proves that the suit pronote was executed by the defendant and the entire consideration was passed under Ex.A1 promissory note. It is the contention of the respondent's counsel that the learned trial Judge held in its judgment that the suit pronote is not genuine and the learned trial Judge clearly held that the pronote is fabricated by incorporating one word. The learned trial Judge held in its judgment that “with regard to interpellation of probably Ex.A1 might be only taken for Rs. 20,000/- but with a view to made it Rs. 1,20,000/- the letter is interpelated, the same is not attested and the same is detected with the assistance of magnifying glass observing minutely. Here it is not the case of the defendant that she borrowed an amount of Rs. 20,000/- and the figure of Rs. 20,000/- is altered as Rs. 1,20,000/-. It is not the finding of the learned trial Judge that the word or the number 1' is added to the words of Rs. 20,000/- or the words of mentioned in the amount in the pronote. The finding of the trial Judge is that the work is interpleated in Ex.A1 and the same is not attested. If really the word is added the entire meaning of sentence in the Pronote will not be changed. 18. The defendant pleaded in the written statement that the husband of the defendant and plaintiff are very close in connection with chit business and in that connection the plaintiff made believe the defendant and her husband to sign on blank papers containing stamps as a security in money transactions of the chit and obtained her signatures on the stamps on a blank white paper with a promise that their signatures are obtained formally for the smooth running of the said business. She further pleaded that taking advantage of the white blank paper containing the signature of the defendant due to subsequent dispute arose between husband of the defendant and the plaintiff in connection with the chit business, the plaintiff created and fabricated the pronote. 19. She further pleaded that taking advantage of the white blank paper containing the signature of the defendant due to subsequent dispute arose between husband of the defendant and the plaintiff in connection with the chit business, the plaintiff created and fabricated the pronote. 19. As seen from the written statement and the deposition of the defendant, she is not a signatory and she used to affix her thumb mark only, in such a case it has to explain by the defendant how the plaintiff will obtain her signatures on empty stamp papers and white papers, there is no explanation on the aforesaid aspect. It was suggested to PW1 in cross examination by the learned counsel for defendant that the plaintiff obtained the signatures of the defendant on some blank papers containing revenue stamps and also the signatures of Venkata Ramana Murthy Raju and by using the same, Ex.A1 is brought into existence. The said suggestion is denied by PW1. The above circumstances clearly goes to show that the defendant has taken a bald allegations that the plaintiff obtained signatures of defendant on empty white papers and also on stamp papers to create Ex.A1 promissory note, though the defendant is not a signatory. It was stated by the defendant in her evidence in chief examination that plaintiff obtained blank pronote with thumb mark on the revenue stamp affixed thereon at about 6 years ago, but this plea of obtaining her thumb mark on the empty stamp paper is not at all stated by the defendant in the earlier occasion i.e., in the written statement. It was also not suggested to PW1 by the learned counsel for defendant that the plaintiff has obtained her thumb marks on the empty papers. As stated supra, it was suggested to PW1 in cross examination by the learned counsel for defendant that her signature was obtained on empty papers, the said suggestion is denied by PW1. The defendant relied on Ex.B1 to Ex.B4. Ex.B1 is the proceedings issued by the Gram Panchayat, Rajam, dated 21.07.1994, Ex.B2 is the approved plan dated 21.07.1994, it does not mean that the defendant has completed her house construction in the year 1994. The defendant also relied on Ex.B3 electricity charges receipt dated 14.02.1995, Ex.B4 is the notice given by the Vysya Bank, Rajam dated 25.07.1997. Ex.B1 is the proceedings issued by the Gram Panchayat, Rajam, dated 21.07.1994, Ex.B2 is the approved plan dated 21.07.1994, it does not mean that the defendant has completed her house construction in the year 1994. The defendant also relied on Ex.B3 electricity charges receipt dated 14.02.1995, Ex.B4 is the notice given by the Vysya Bank, Rajam dated 25.07.1997. In Ex.A1 it was specifically mentioned that the defendant borrowed money for completion of house construction, since house construction was stopped in the middle stage and also to purchase she-buffaloes, therefore no importance can be given to Ex.B1 to Ex.B4, furthermore, there was an admission by the defendant in her evidence in cross examination that herself and her husband are living together and her husband property and her property is their ancestral property. 20. The defendant also relied on the evidence of DW2. DW2 deposed in his evidence that the defendant's husband is running a tea stall and defendant's husband and plaintiff used to do chit business and the defendant's husband demanded the plaintiff to return the blank pronote, but the plaintiff told that he would return the same at later stage. In cross examination, he admits that he paid Rs. 500/- per month through DW1 to PW1. It seems that he is having close acquaintance with DW1. Another witness of the defendant i.e., DW3 stated in his evidence itself that the defendant's husband and plaintiff used to do chit business since 1992. In cross examination, he admits that he got acquaintance with DW1 from 13 years and he used to take tea at DW1 tea staff and DW2 is his relation. Furthermore, he pleaded ignorance whether the defendant took money from PW1 and constructed a house. The evidence of DW2 and DW3 is confined with regard to the alleged chit transaction in between the plaintiff and defendant's husband. It is the case of the defendant from the beginning itself, the plaintiff obtained her signatures and her husband's signatures on empty pronotes and on empty papers and by using the same, the pronote is brought into existence. As stated supra, the defendant is not a signatory and she used to affix her thumb mark, therefore, no importance will be given to the defense put forth by the defendant in the written statement. 21. In the case on hand, the evidence on record clearly proves that after borrowing money of Rs. As stated supra, the defendant is not a signatory and she used to affix her thumb mark, therefore, no importance will be given to the defense put forth by the defendant in the written statement. 21. In the case on hand, the evidence on record clearly proves that after borrowing money of Rs. 1,20,000/- by the defendant, the defendant affixed her thumb mark and executed pronote after receiving consideration. The evidence of PW1 to PW4 is consistent and cogent with regard to borrowing of amount of Rs. 1,20,000/- by the defendant from the plaintiff under Ex.A1 pronote, therefore, the plaintiff discharged his burden. Then the burden shifts to the defendant to rebut the evidence adduced by the plaintiff. In the case on hand, the existence of consideration mentioned in the pronote was denied by the defendant with reference to the circumstance, which according to her, but the defendant failed to prove her defense, she simply stated bald allegations that her signatures are obtained on empty papers though she is not a signatory, the same is supported by her written statement and her deposition. Though she relied on Ex.B1 to Ex.B4, as stated supra, no importance will be given to Ex.B1 to Ex,B4, the purpose of borrowing money under Ex.A1 is to purchase the she buffaloes and completion of remaining house construction which was stopped in the middle stage, therefore, in view of the aforesaid reasons, the suit pronote is true, valid and supported by consideration and the plaintiff is entitled the suit claim, but the learned trial Judge failed to appreciate the evidence on record in a correct manner and came to wrong conclusion and dismissed the suit, therefore, the decree and judgment passed by the trial court is liable to be set aside. Consequently, the suit in O.S. No. 16 of 1997 on the file of Senior Civil Judge's Court, Rajam is decreed with costs for an amount of Rs. 1,52,160/- with subsequent interest at 12% p.a. on the principal amount of Rs. 1,20,000/- from the date of suit till the date of decree and thereafter at 6% p.a. on Rs. 1,20,000/- till the date of realization, accordingly, the point Nos. 1 and 2 are answered. 22. In the result, the Appeal Suit is allowed by setting aside the decree and judgment passed by the learned Senior Civil Judge, Rajam in O.S. No. 16 of 1997, dated 26.03.1999. 1,20,000/- till the date of realization, accordingly, the point Nos. 1 and 2 are answered. 22. In the result, the Appeal Suit is allowed by setting aside the decree and judgment passed by the learned Senior Civil Judge, Rajam in O.S. No. 16 of 1997, dated 26.03.1999. Considering the circumstances of the case, each party do bear their own costs. 23. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.