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PSS, J.
A.S.No.631 of 2009
HONOURABLE SMT. JUSTICE P. SREE SUDHA
APPEAL SUIT No.631 OF 2009
JUDGMENT:
The present appeal suit is filed by the appellant/defendant against the judgment and decree dated 21.04.2009 passed in O.S.No.392 of 2004 on the file of V Additional Senior Civil Judge, Rangareddy District.
2. The suit vide O.S.No.392 of 2004 was filed by the respondent/plaintiff against the appellant/defendant for recovery of Rs.6,50,000/- (Rupees Six lakhs fifty thousand only), basing on the promissory note dated 07.01.2003. The trial Court examined PWs.1 and 2 and marked Exs.A1 to A5 on behalf of the plaintiff and also examined DWs.1 and 2 on behalf of the defendant. The trial Court after considering arguments of both sides and evidence on record, decreed the suit in favour of respondent/plaintiff. Aggrieved by the said Judgment, the defendant therein preferred the present appeal.
3. The learned counsel for the appellant/defendant mainly contended that appellant/defendant had purchased 2 PSS, J.
A.S.No.631 of 2009 the poultry feed from respondent/plaintiff and there is no transaction of taking loan from respondent/plaintiff, but the same was not considered by the trial court. He also contended that the trial court has erred in concluding that the writing and signature on the promissory note was differing with the other documents and moreover the cheque was having two different writings and the respondent/plaintiff has not filed original promissory note along with plaint and there was no explanation for not filing the said document. He further contended that the trial court ought to have considered that the legal notice and plaint are not having the date of promissory note and the respondent/plaintiff is not fair, as in his chief-examination, he stated that the case under Section 138 of Negotiable Instruments Act, 1881 was dismissed, but in his cross- examination he stated that the said case was decreed in his favour. Therefore, requested the Court to set aside the Judgment of the trial court.
4. The parties herein are referred as plaintiff and defendant as arrayed in the trial court for the sake of convenience.
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A.S.No.631 of 2009
5. The brief facts of the case are that the plaintiff was a business man and supplying poultry feed and the defendant was also doing the same business and got acquaintance with the plaintiff. On such acquaintance, at the request of the defendant, the plaintiff advanced a hand loan of Rs.6,50,000/- (Rupees Six lakhs fifty thousand only) to the defendant on 07.01.2003 and the defendant also agreed to repay the same with interest at the rate of 12% per annum within 6 months and also executed promissory note in the presence of one Satyam and M.Ravinder. Though the defendant agreed to repay the amount within six (6) months from the date of receiving the hand loan i.e., 07.01.2003, he did not repay the said amount. The defendant issued a cheque bearing No.148896 dated 22.10.2003 for Rs.6,50,000/- drawn on Vysya Bank Limited, Vanasthalipuram Branch, Hyderabad to the plaintiff stating that he will pay the amount in cash and take back the cheque, as such plaintiff waited till November, but the defendant never turned-up and defendant also stated that he has 4 PSS, J.
A.S.No.631 of 2009 money in the bank and asked the plaintiff to present the cheque. When the plaintiff presented the cheque on 24.11.2003, it was dishonoured with an endorsement "account closed". Thereafter, he informed the same to the defendant and got issued legal notice dated 09.12.2003, but the defendant did not give any reply and thus plaintiff filed the suit. He did not file the original promissory note along with the plaint. He stated that it was not traceable at the time of filing the suit, and when it is traceable, it was filed. He filed a Photostat copy of the cheque with original endorsement letter of the Vysya Bank dated 25.11.2003, original postal receipt and acknowledgement before the trial Court. Plaintiff has also stated that defendant was running poultry farm business and other house-hold articles business to make the payment to the creditors and thus requested the Court to decree the suit along with interest.
6. The defendant filed the written statement, in which, he admitted that plaintiff was doing poultry business and he was also a businessman, farmer and running poultry farm 5 PSS, J.
A.S.No.631 of 2009 but he denied other material allegations regarding taking of hand loan and alleged that the plaintiff got forged and fabricated the promissory note with the help of one Satyam and Ravinder. He also stated that he never issued any cheque for Rs.6,50,000/- and he never received any legal notice. He mainly contended that he knows plaintiff as plaintiff was supplying poultry feed from the year 1991 till July, 2003. In the month of July, 2003, in the last consignment of poultry feed dated 29.07.2003 supplied by the plaintiff, it was found short supply of 10 Quintals of D.G.N.C Poultry Feed which was noticed on 03.08.2003. When the defendant got weighed the same in the presence of plaintiff one A.Jagpal Reddy, Karingu, Kushpal Reddy and others at Sri Sheshadri Weigh Bridge, Mangalampally X Roads, Ibrahimpatnam Mandal, he along with other farmers questioned the plaintiff regarding cheating made by him. Therefore, plaintiff keeping grudge against him, forged his signature and fabricated the promissory note and cheque and filed a false suit and thus requested the Court to dismiss the suit.
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A.S.No.631 of 2009
7. PW1 in his evidence reiterated the contents of plaint. In his cross-examination, he stated that he knows the defendant from the last 10 to12 years. Defendant was visiting the shop of plaintiff and got acquaintance with him, but he stated that plaintiff was not supplying poultry feed to the defendant regularly, only in case of emergency defendant used to purchase feed from plaintiff and at the time of purchase of feed defendant used to pay in cash and never issued any cheque. He denied the shortage in supply of poultry feed on 29.07.2003 as alleged by the defendant. It was suggested to him that in Ex.A1 promissory note, signature of the defendant was fabricated, but he denied it. It was also suggested that one Satyam and Ravinder were his friends and defendant has no friendship with them, but the same was denied by him and stated that defendant after giving the cheque, asked the plaintiff to present the same after one month and accordingly he presented the cheque on 24.11.2003. He also stated that he filed a cheque bounce case against the defendant and the same was ended in acquittal. It was suggested that he got prepared the legal notice by 23.11.2003 itself and presented the cheque for 7 PSS, J.
A.S.No.631 of 2009 collection purposefully on 24.11.2003 and to suit his convenience in the plaint, the date was corrected as 09.12.2023, but he denied the same.
8. PW2 is the attestor of the promissory note, in the cross-examination he stated that on 07.01.2003 defendant approached him and he in turn took the defendant to the house of the plaintiff and the plaintiff agreed to lend money and paid Rs.6,50,000/- to the defendant and the defendant after receiving money executed promissory note, signed on it and he signed on the promissory note as one of the witnesses. He further stated that when he met plaintiff after 1½ years from the date of transaction, plaintiff stated that the defendant has not repaid the said amount. PW2 admitted his signature on promissory note as attestor and also admitted that he was present at the time of execution of Ex.A1 and he went there at the instance of appellant/defendant.
9. DW1 in his evidence reiterated the contents of his written statement. In his cross-examination, he admitted that the signature shown to him on the Chief-examination belong to him. He was doing poultry business since 1982. 7 8 PSS, J.
A.S.No.631 of 2009 to 8 years after he started poultry business, plaintiff started supply of poultry feeds to him and he used to take poultry feed for every 5 to 6 days by paying cash and he has taken poultry feed from the plaintiff from 1991 to 2003. He admitted that he maintained account with Vysya Bank and the said bank issued a loan of Rs.15,00,000/- to him and stated that he did not remember when he received the loan amount and when he repaid the same to the bank. He admitted that Ex.A1 was the cheque issued by him to the plaintiff in the year 2003. Ex.A3 was the original endorsement of the Vysya Bank returned cheque memo dated 25.11.2003. He also admitted issuance of legal notice by the plaintiff and he got issued reply to the said legal notice. He also stated that he know Ravinder, who signed as an attestor on Ex.A1 and stated that attestor No.1 Satyam was the partner of plaintiff. He also admitted that he gave cheque to the plaintiff, but he denied that he issued the said cheque under Ex.A2 on the said date and further stated that he gave blank cheque only at the beginning of feed supply transaction between himself and plaintiff. 9
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A.S.No.631 of 2009
10. DW2 was examined on behalf of DW1 and he clearly admitted that plaintiff never supplied any poultry feed and he had no acquaintance with the signature of the defendant and he did not know anything about the suit claim between the plaintiff and the defendant and further admitted that he did not sign on any document at the time of weighing poultry feed.
11. Now it is for this Court to see whether the Judgment of the trial court is on proper appreciation of facts or not?
12. The main contention of the appellant/defendant herein is that the date of the promissory note was not mentioned in the plaint and the original promissory note was not enclosed with the plaint and the reason for not enclosing the same was also not stated. Perusal of the plaint shows that defendant received hand loan from the plaintiff and executed promissory note with an assurance to repay the same within six (6) months. So also, it is clearly stated that the original promissory note was not traced out, as such it could not be filed along with plaint. Later, it was marked through PW1, therefore the argument of the appellant's/defendant's counsel is not tenable and another contention of the 10 PSS, J.
A.S.No.631 of 2009 appellant/defendant is that he was supplied poultry feed by the plaintiff and during the last consignment, when it was question by him and other farmers regarding the shortage of 10 quintals of poultry feed, plaintiff bore grudge against him and forged the document. Plaintiff was examined as PW1 and the attestor as PW2 and original promissory note was filed under Ex.A1 and the cheque issued by the appellant/defendant was marked as Ex.A2. Ex.A3 is the original endorsement of the Vysya Bank returned cheque memo dated 25.11.2003. Ex.A4 is the original copy of legal notice dated 09.12.2003 and Ex.A5 is the original postal receipt and acknowledgement dated 09.12.2003. Defendant clearly admitted that he issued cheque for Rs.6,50,000/- and the said cheque was issued for the supply of poultry feed but he has not filed any document to substantiate his version. Whereas, the plaintiff contended that defendant executed promissory note under Ex.A1, but did not repay the amount. When he repeatedly requested him, he issued cheque under Ex.A2, but it was also returned under Ex.A3, as such he got issued legal notice, even then the amount was not paid, he filed suit for recovery of amount. Though 11 PSS, J.
A.S.No.631 of 2009 the defendant stated that he got issued reply to the legal notice, he has not filed the same before the Court. Ex.A2 bears the signature of the defendant. The trial court raised presumption under Section 118 of the Evidence Act and 188 of Negotiable Instruments Act in favour of plaintiff, as the defendant received a considerable amount as mentioned in the promissory note and executed Ex.A1 and Ex.A2. Though the presumption is a rebuttable presumption, defendant failed to rebut the same by adducing cogent and convincing evidence. Though the defendant contended that the plaintiff has fabricated the promissory note, he failed to send the same to hand writing expert. As the defendant failed to send the same for expert opinion his argument is not tenable. The trial Court also observed that defendant has not filed weigh slip of poultry feed to substantiate his version. The trial court dealt with all the issues in detail and rightly decreed the suit in favour of the plaintiff. This Court finds no reason to interfere with the Judgment of the trial court and the present appeal is liable to be dismissed.
13. In the result, the appeal suit is devoid of merits and is dismissed confirming the Judgment and decree 12 PSS, J.
A.S.No.631 of 2009 dated 21.04.2009 in O.S.No.392 and 2004 passed by the learned V Additional Senior Civil Judge, (Fast Track Court) Rangareddy District. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
____________________________ JUSTICE P. SREE SUDHA Dt.02-11-2023.
krl 13 PSS, J.
A.S.No.631 of 2009 HONOURABLE SMT. JUSTICE P. SREE SUDHA A.S.No.631 OF 2009 Dt.02.11.2023 krl