Madugula Venkata Reddy vs Tappuri Balakka
2021 Latest Caselaw 2119 AP

      THE HON'BLE SRI JUSTICE M.VENKATA RAMANA

               SECOND APPEAL No.153 of 2021

JUDGMENT:

Heard Ms.P.Indu, learned counsel for Sri Madhava Rao

Nalluri, learned counsel for the appellant.

2. Having regard to the nature of this matter, since the

parameters referring to Section 100 C.P.C are required to be

considered at this stage and as the material on record did not

meet the same, the second appeal is being disposed of now at

the stage of admission.

3. The appellant is the unsuccessful defendant. The

respondent is the plaintiff. She laid the suit in O.S.No.14 of 2010

on the file of the Court of learned Senior Civil Judge, Markapur

for recovery of Rs.1,47,060/- with costs and future interest,

basing on a promissory note dated 08.01.2007 allegedly executed

by the appellant in her favour.

4. It was the case of the respondent before the trial Court

that the appellant did not repay the amount due thereunder

in spite of issuing a legal notice dated 07.01.2010, that

constrained to lay the suit.

5. The defence of the appellant broadly speaking is one of

the denial of execution of promissory note and that he did not

borrow any money from the respondent. He also alleged

political rivalry between his family and that of the respondent.

6. Basing on the pleadings, learned trial Judge settled the

appropriate issues. Thereupon the parties went to trial adducing

evidence in support of respective claims. However, disbelieving

the version of the appellant, learned trial Judge accepted the

claim of the respondent and decreed the suit as prayed.

7. The appellant preferred A.S.No.15 of 2017 on the file of

the Court of learned VI Additional District Judge, Prakasam

District at Markapur, where learned appellate Judge, after

reappraisal of the evidence, settling an appropriate point for

determination agreed with the view by the trial Court and

consequently, the appeal was dismissed with costs confirming

the judgment and the decree of the trial Court. It is, against the

same, the appellant sought to present this second appeal.

8. Ms.P.Indu, learned counsel for the appellant, strenuously

contended that both the Courts below improperly appreciated

the material on record and despite the fact that the scribe of the

suit promissory note supported the version of the appellant,

giving a different dimension to this transaction, decreeing the

suit is on account of erroneous appreciation of evidence.

Drawing the attention of this Court to the contents of the

judgments of both the Courts below, learned counsel strenuously

contended that in the backdrop of the facts and circumstances,

since Section 100 C.P.C is attracted, there is requirement of the

second appeal.

9. In this backdrop, it has to be seen whether the appellant

has made out substantial questions of law, as are pointed out in

ground No.6 of the memorandum of appeal, requiring

consideration and to admit this second appeal.

10. The dispute is based on Ex.A1-suit promissory note,

whereunder, according to the respondent, the appellant had

borrowed Rs.85,500/- agreeing to repay the same on demand

with future interest at 24% p.a. He further claimed that before

institution of the suit, the original of Ex.A2-legal notice dated

07.01.2010 was issued and that it was served on the appellant

vide Ex.A3-postal acknowledgment, who did not choose to send a

reply.

11. In view of denial of Ex.A1-promissory note as to its

execution and the transaction covered by it, necessarily the

burden is on the respondent to prove the same as well as the

transaction covered by it.

12. The respondent as PW.1, at the trial deposed covering the

suit transaction elaborating as to execution of Ex.A1-suit

promissory note by the appellant and steps taken thereon by him

for recovery of the amount due thereunder including the

demands demonstrated by Exs.A2 and A3. PW.2 and PW.3 are

the attestors to Ex.A1. They too deposed supporting the version

of the respondent as PW.1 at the trial.

13. Both the Courts below, upon consideration of such material

including the intrinsic worth of Ex.A1, held that this transaction

is proved and that Ex.A1-suit promissory note was executed by

the appellant, upon receiving consideration thereunder, agreeing

to the terms set out therein. When there are such findings

recorded by the Courts below on the disputed questions of fact,

this Court sitting in second appeal should necessarily be slow to

interfere in relation thereto.

14. The appellant as DW.1 at the trial deposed of his case.

The thurst of the entire defence and to support the same is

based on the testimony of DW.2-Sri M.Venkataswamy Reddy, who

is stated to be the scribe of Ex.A1-suit promissory note. Such

fact, as recorded by the appellate Court in its judgment is

proved by PWs.2 and 3. However, both the Courts below

recorded the fact that Ex.A1-suit promissory note did not bear

the signature of the scribe.

15. According to the appellant, DW.2-Sri M.Venkataswamy

Reddy, completely gave a different version of Ex.A1-suit

promissory note, denying his participation in such transaction

and thus, supported the version of the appellant.

16. The appellate Court observed that DW.2-Sri

M.Venkataswamy Reddy, is related to the appellant either as a

brother or cousin brother and thus, he is closely related to the

appellant. It must be the obvious factor for him to disown the

transaction covered by Ex.A1-suit promissory note and it is but

natural that he supported his brother namely the appellant, at

the trial. Rightly, both the Courts below did not attach credence

to the testimony of DW.2-Sri M.Venkataswamy Reddy. The

predominant consideration that weighed with both the Courts

below in this context is the nature of evidence of PWs.2 and 3

relating to the suit promissory note transaction being the

attestors to have primacy over the testimony of the scribe. It is

true that in given circumstances, the testimony of the scribe

cannot be elevated to the status of an attestor. Attestor would

prove the transaction under a document, though he is not a party

to it. However, in case of the scribe, similar is not the situation.

Right reasons are stated in the judgments of both the Courts

below in relegating the testimony of DW.2 to the back in

preference to the testimony of PWs.2 and 3 namely, the

attestors.

17. If at all the defence of the appellant is certain and true,

nothing prevented him from subjecting Ex.A1-suit promissory

note for examination by a competent handwriting expert. It

appears that the respondent made such an attempt and when the

trial Court had forwarded Ex.A1-suit promissory note to Forensic

Science Laboratory, Hyderabad, it was returned on the ground

that there are no admitted signatures of the appellant for

comparison. Nonetheless, it is not for the plaintiff in such

circumstances to take such a step and in the event of denial of

execution of such document, it is for the party to set out such

material including the opinion of the expert in support of his

defence. Obviously, there is failure on the part of the appellant,

in this context.

18. The view of the appellate Court is that it did not agree

with the attempt of the trial Court in terms of Section 73 of the

Indian Evidence Act in resorting to comparison of signatures of

the appellant, admitted or disputed. Rightly, the appellate

Court took a view that such course adopted by the learned trial

Judge is not safe. It is quite hazardous.

19. Another circumstance to consider in this context is failure

of the appellant to reply to the legal notice under Ex.A2 and the

appellate Court also considered that the version of the appellant

in this context is not believable, rejecting his version that he got

issued a reply to it. No copy of the reply notice was produced

during the trial.

20. Thus, when these findings recorded by both the Courts

below stare at the appellant, it is rather difficult to accept his

version that there are substantial questions of law for this Court

to consider at this stage. What all available is only fact

situation, which need not be considered, particularly, when it is

the settled proposition that the findings recorded by the learned

appellate Judge as last Court of fact, are binding on this Court,

when considering the matter in the second appeal.

21. Therefore, finding that this matter did not remain within

the purview of Section 100 C.P.C and that there are no

substantial questions of law to determine, this Second Appeal has

to be dismissed at the stage of admission.

22. In the result, this Second Appeal is dismissed at the

admission stage and consequently, the decrees and judgments of

both the Courts stand confirmed. No costs.

23. Interim orders granted earlier if any, stand vacated.

24. Miscellaneous applications pending if any, shall stand

closed.

_____________________ M.VENKATA RAMANA, J Date: 24.06.2021 Pab