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2024 DIGILAW 771 (AP)

Veerisetty Krishna v. Dane Srinivasa Rao

2024-07-12

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/defendant challenging the Decree and Judgment, dated 20.12.1999, in O.S. No. 19 of 1998 passed by the learned Principal Senior Civil Judge, Ongole [for short 'the trial Court']. The Respondent herein is the plaintiff in the said Suit. 2. The respondent/plaintiff filed the Suit for recovery of a sum of Rs.3,33,450/- being the principal and interest due on a promissory note dated 07.05.1995 executed by the defendant in favour of plaintiff for Rs.2,00,000/- 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. 19 of 1998, are as under: Plaintiff and defendant are related to one another and are businessmen and the defendant borrowed an amount of Rs.2,00,000/- from the plaintiff on 07.05.1995 for acquiring property and for construction of business complex and executed a promissory note on the same day in favour of plaintiff agreeing to repay the same with interest at 24% 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 all the averments mentioned in the plaint and further contended as under: This defendant did not execute the suit promissory note and it is a fabricated and forged document. The defendant purchased business complex which was constructed, from one Katakam Imam Hussain of Proddatur town, but not vacant site. His wife and the wife of plaintiff were the partners of a partnership firm and that his wife invested Rs.3,00,000/- in the said business and purchased the interest of another partner Konidena Indira and that the plaintiff actually managed the business and his wife has to get Rs.4,12,500/- towards her share including the investment and profit of the partnership business and when he insisted the plaintiff for the account and for dissolving the business, the plaintiff grew wild and wrongfully confined him, under those circumstances, he got issued a lawyer notice to the plaintiff. After receipt of notice, without giving any reply, the plaintiff forged the suit pronote with the help of his men and filed this suit. After completion of evidence on behalf of both sides, the defendant amended his written statement as per orders in I.A. No. 1565 of 1999, dated 29.10.1999. The contents of which in brief as follows: The plaintiff is running a number of unauthorized chits and he was one of the subscriber to the 5 chits conducted by the plaintiff and he was a prized bidder in all the chits and during the course of business of the plaintiff, they have obtained blank signed pronotes as additional security and the plaintiff might have created the suit pronote by using the one of the said blank pronote. 6. Based on the above pleadings, the trial Court framed the following issues: (i) Whether the suit pronote is true, valid and binding on the defendant? (ii) Whether the plaintiff is entitled for suit amount? (iii) 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 and Ex.A2 were marked. On behalf of the Defendant DW1 was examined and Ex.B1 to Ex.B4 were marked and Ex.C1 and Ex.C2 were marked through Court. 8. After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit with costs vide its judgment, dated 20.12.1999, against which the present appeal is preferred by the appellant/defendant in the Suit questioning the Decree and Judgment passed by the trial Court. 9. Heard Sri Raja Reddy Koneti, learned counsel for appellant/defendant and Sri Syed Ghouse Basha, learned counsel for respondent/plaintiff. 10. The learned counsel for appellant would contend that the suit pronote dated 07.05.1995 is a fabricated one and no consideration was passed, but the learned trial Judge came to wrong conclusion and decreed the suit and the decree and judgment passed by the trial Court is contrary to law and the appeal may be allowed by setting aside the decree and judgment passed by the learned trial Judge. 11. Per contra, the learned counsel for respondent would contend that on appreciation of entire evidence on record, the learned trial Judge rightly decreed the suit and there is no need to interfere with the finding given by the learned trial Judge. 12. 11. Per contra, the learned counsel for respondent would contend that on appreciation of entire evidence on record, the learned trial Judge rightly decreed 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 the suit promissory note is true, valid and binding on the defendant and the plaintiff is entitled the suit claim? 2. Whether the decree and judgment passed by the trial court needs any interference? If so, to what extent? 13. Point Nos. 1 and 2: The case of the plaintiff is that the defendant borrowed a sum of Rs.2,00,000/- on 07.05.1995 and agreed to pay the same with interest at 24% p.a. and executed a suit promissory note on the aforesaid date in favour of the plaintiff and subsequently the defendant failed to discharge the pronote debt and that the plaintiff is constrained to file the suit. 14. At the initial stage in the written statement, the defendant pleaded that the suit promissory note is a rank forgery and he never borrowed any amount under the suit promissory note. The material on record reveals that after completion of evidence on behalf of both sides the defendant filed a petition vide I.A. No. 1565 of 1999 to amend the written statement which was filed at initial stage, that petition was allowed vide order dated 29.10.1999, in the amended written statement, the defendant pleaded that plaintiff is running a number of unauthorized chits and he was one of the subscriber to the 5 chits conducted by the plaintiff and he was a prized bidder in all the chits and during the course of business of the plaintiff, they have obtained blank signed pronotes as additional security and the plaintiff might have created the suit pronote by using the one of the said blank pronote. 15. Initially in the written statement, the defendant pleaded forgery and he also pleaded pronote is not supported by consideration. 15. Initially in the written statement, the defendant pleaded forgery and he also pleaded pronote is not supported by consideration. The plaintiff to discharge his burden, examined himself as PW1 and also examined two attestors in the suit pronote as PW2 and PW3 and also examined the scribe of pronote as PW4. The evidence of PW1 goes to show about the borrowing of Rs.2,00,000/- by the defendant on 07.05.1995 and also execution of Ex.A1 promissory note by the defendant in favour of the plaintiff. In cross examination when elicited by the learned counsel for defendant the plaintiff narrated that he is having sufficient capacity to lend that much amount of Rs.2,00,000/- on the date of promissory note. It is not the case of the defendant that the plaintiff has no means to lend money. On the other hand, there was a clear admission in his evidence in cross examination by the plaintiff that the defendant is a close friend to him, the same is not at all disputed by the defendant. 16. PW2 is none other than the one of the attestor in Ex.A1 pronote. PW3 is the second attestor of Ex.A1 pronote. The evidence of PW2 well established about the borrowing of Rs.2,00,000/- by the defendant and execution of Ex.A1 pronote in favor of plaintiff. PW3 second attestor in Ex.A1 also supports the evidence of PW2. It is not the case of the defendant that he is having enmity with PW2 and PW3 due to that enmity they deposed falsehood against him. 17. The plaintiff also examined the scribe of Ex.A1 promissory note as PW4, his evidence also goes to show about the borrowing of Rs.2,00,000/- by the defendant from the plaintiff on 07.05.1995 and also execution of Ex.A1 pronote in favour of the plaintiff. It is also not the case of the defendant that he is having enmity with the scribe, due to that he deposed falsehood against him. 18. The evidence of PW2 to PW4 clearly supports the case of the plaintiff. As stated supra, the defendant is not having enmity with the attestors and scribe of the pronote i.e. PW2 to PW4, the evidence of PW2 to PW4 is trustworthy and in cross examination, the evidence of PW2 to PW4 is not at all shattered on the material aspects of the case. 19. As stated supra, the defendant is not having enmity with the attestors and scribe of the pronote i.e. PW2 to PW4, the evidence of PW2 to PW4 is trustworthy and in cross examination, the evidence of PW2 to PW4 is not at all shattered on the material aspects of the case. 19. The material on record reveals that the suit pronote was sent to the expert for comparison of the signature on Ex.A1 pronote. The expert sent an opinion that the signature on Ex.A1 suit pronote is belongs to the defendant. No doubt, the opinion of the hand writing expert is not a conclusive proof, but the said report has to be read along with the other evidence available on record. The material on record also further reveals that after the expert sent a report, the defendant filed an Interlocutory Application vide I.A. No. 1565 of 1999 to amend the written statement and got amended the original written statement. In the amended written statement, he pleaded that the plaintiff used to do chit business and in the chit transaction, the plaintiff obtained a blank signed pronotes from him as a collateral security. The contents of the amended written statement itself clearly goes to show that the defendant is admitting the signature on the Ex.A1 promissory note. As stated supra, the evidence produced by the plaintiff clearly establishes the suit pronote is supported by consideration, though the defendant admitted his signature on the written statement at a later stage i.e. after completion of trial at the stage of arguments by way of amended written statement, the appellant failed to discharge his burden. 20. The Apex Court in a case of Bharat Barrel and Drum Manufacturing Company vs. Amin Chand Payrelal, 1999 INSC 69 : (1999) 3 SCC 35 held as follows: Once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non- existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard. Section 118 of the Negotiable Instruments Act deals with the presumptions as to the negotiable instruments. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard. Section 118 of the Negotiable Instruments Act deals with the presumptions as to the negotiable instruments. One of such presumptions is: “That every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.” This presumption is based upon a principle and is not a mere technical provision. The principle incorporated being inferring of a presumption of consideration in the case of a negotiable instrument. The Apex Court held in Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, 1959 INSC 118 : AIR 1960 SC 100 as follows: “The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail, where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic.” In the case on hand, the plaintiff discharged his burden by placing cogent and reliable evidence on record, to disprove the said evidence the defendant did not adduce any evidence, except examining himself as DW1, to prove his pleadings taken in the written statement, therefore, the finding of the learned trial Judge that the suit promissory note is true, valid and binding on the defendant is holds good and the decree and judgment passed by the trial Court is perfectly sustainable under law and it requires no interference. The point Nos.1 and 2 are answered accordingly. 21. In the result, the Appeal Suit is dismissed by confirming the decree and Judgment dated 20.12.1999, in O.S. No. 19 of 1998 passed by the learned Principal Senior Civil Judge, Ongole. Considering the circumstances of the case, each party do bearing their own costs. 22. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.