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PSS, J.
S.A.No.1588 of 2004
HONOURABLE SMT. JUSTICE P. SREE SUDHA
SECOND APPEAL No.1588 OF 2004
JUDGMENT:
This Second Appeal is filed against the Judgmenrt and decree passed in A.S.No.17 of 2003 dated 18.08.2004 on the file of II Additional District Judge, (FTC), Adilabad District confirming the Judgment and decree passed in O.S.No.47 of 2000 dated 17.04.2003 one the file of Junior Civil Judge, Adilabad.
2. The respondent/plaintiff filed a Suit in O.S.No.47 of 2000 for recovery of an amount of Rs.50,000/- (Rupees Fifty thousand only) against the appellant/defendant basing on the promissory note dated 25.01.1999. The trial Court examined PWs.1 and 2 and marked Exs.A1 to A4 on behalf of the plaintiff. DWs.1 and 2 were examined on behalf of the defendant and marked Exs.B1 and B2 on his behalf. The trial Court after considering the arguments of both sides decreed the Suit with interest @12% per annum from the date of filing of the suit till the date of realization. Aggrieved by the said Judgment and decree, defendant therein preferred an appeal before the first appellate 2 PSS, J.
S.A.No.1588 of 2004 Court, but the same was dismissed by confirming the Judgment of the trial Court. Aggrieved by the concurrent findings of both the Courts, appellant/defendant preferred the present Second Appeal on the following substantial questions of law:-
1 Whether in the absence of any receipt showing the amount paid to the appellant, will the presumption under Section 118 of Negotiable Instruments Act available in favour of the respondent/plaintiff.
2 Whether the finding of the first appellate Court and trial Court are perverse.
3 Whether the burden lies upon the Appellant/Defendant to disprove the case, in case no receipt is filed by the plaintiff regarding the payment of money.
4 Whether both the Courts failed to appreciate that the promissory note alleged to be executed on 25-01-1999 is sufficiently stamped and is admissible in evidence.
5 Whether a pure question of law, which does not require any re-appreciation of evidence, can be permitted to be urged even for the first time in Second Appeal.
6 The Appellant crave leave of this Court to raise the other grounds at the time of hearing.
3. Heard both sides and perused the material available on record.
4. The parties herein are referred as plaintiff and defendant as arrayed before the trial Court for the sake of convenience. 3
PSS, J.
S.A.No.1588 of 2004
5. In the written statement filed by the defendant, he simply denied the execution of the promissory note and stated that he is no way concerned with the said promissory note. He also stated that he has no business transaction with the plaintiff and he has no friendship with the plaintiff. He mainly contended that plaintiff has no capacity to lend the amount of Rs.50,000/- to him. The defendant in his evidence stated that he is having Ac.34.00 cents of land and raising crops like Cotton, Jawar and red-gram etc. As and when required, he used to take Rs.5,000/- or Rs.6,000/- from PW2 by signing on a stamp paper and was repaying the said amount after selling out the crop. As there was no cordial relationship between him and PW2, at the instance of PW2, PW1 got created false promissory note and filed a suit against him.
6. Plaintiff had filed original promissory note under Ex.A1, Ex.A2 Postal receipt, Ex.A3 Legal notice and Ex.A4 returned postal cover in support of his contention and stated that defendant executed the promissory note for a sum of Rs.50,000/- for his personal needs to perform the marriage of his son and 4 PSS, J.
S.A.No.1588 of 2004 daughter and he admitted his signature on Ex.A1. When once the signature is admitted, execution of promissory note is accepted and passing of the consideration is presumed under Section 118 of the Negotiable Instruments Act, 1881, whereas defendant disputed the signature and also stated that his signature was forged. When once he takes the plea of forgery, onus shifts upon the defendant and it is for him, to prove the same by sending the promissory note to the hand writing expert, but he failed to do so.
7. PW2 stated that plaintiff has Ac.15.00 cents of land. Apart from that, he also owned land to an extent of Ac.6.00 cents under Ex.B1 and B2, as such, the contention of the defendant that plaintiff has no capacity to lend money cannot be accepted. As the defendant simply denied the promissory note in his written statement and came up with several versions in his evidence, the evidence without pleadings cannot be considered. Though the defendant denied his signature in the written statement, he admitted his signature in his cross-examination. The first appellate Court gave a detailed reasoning while confirming the judgment of the trial Court. Therefore, this Court 5 PSS, J.
S.A.No.1588 of 2004 finds no reason to interfere with the Judgment of the trial Court as well as the First Appellate Court. There are no merits in the Second Appeal.
8. In the result, the Second Appeal is dismissed as devoid of merits, confirming the concurrent findings of both the Courts. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand disposed of.
____________________________ JUSTICE P. SREE SUDHA Dt.10-10-2023.
krl 6 PSS, J.
S.A.No.1588 of 2004 HONOURABLE SMT. JUSTICE P. SREE SUDHA SECOND APPEAL No.1588 OF 2004 Dt. 10.10.2023 krl