Andhra Pradesh High Court - Amravati

Tupakula Vasantha vs Kovvuri Srinivasa Reddy on 7 September, 2021

        THE HON'BLE SRI JUSTICE M.VENKATA RAMANA

                SECOND APPEAL No.429 of 2021

JUDGMENT:

Heard Sri C.Subodh, learned counsel for the appellant.

2. The respondent laid a suit for recovery of Rs.2,95,600/- on

the foot of a promissory note against the appellant.

3. The case of the respondent is that the appellant borrowed

Rs.2,00,000/- from the plaintiff on 29.11.2015 agreeing to repay

the same with interest at 24% p.a. and executed the suit

promissory note. It is further case of the respondent that

in spite of repeated demands and in spite of legal notice dated

14.11.2017, since the appellant failed to repay the amount due,

he was constrained to lay the suit.

4. The principal defence of the appellant, who had chosen to

file only written statement, from which it would be culled out is

that it is one of denial the entire transaction and borrowing

money under the suit promissory note from the respondent. She

pleaded forgery and fabrication of suit promissory note.

5. The trial Court settled the following issues on the

pleadings.

1. Whether the suit pronote dt.29.11.15 for an amount of

Rs.2,00,000/- is true, valid, supported by consideration

and binding on the defendant or was it a forged and

fabricated document as alleged by the defendant?

2. Whether the calculations made in the plaint are

incorrect?

3. Whether the plaintiff is entitled for the suit claim as

prayed for?

4. To what relief?

6. Trial went on in this matter, where the respondent had let

in evidence examining himself as PW.1 and another witness,

PW.2 who is the scribe of the suit promissory note. Exs.A1 to A3

were relied on at the trial for the respondent. The appellant did

not choose to enter the witness box. Yet, learned trial Judge

choose to dismiss the suit on the premise that the initial burden

is on the respondent to prove the transaction holding the

testimony of PWs.1 and 2 is unbelievable.

7. Appeal preferred there against ended in reversal of the

decree and judgment and a decree was passed against the

appellant making him liable to pay the amount due.

8. It is, in these circumstances, this second appeal is

presented.

9. Substantial questions of law are raised in the grounds of

appeal. They revolve around the burden of proof, which the

plaintiff is expected to discharge and effect of Section 118 of the

Negotiable Instruments Act. Once such burden is discharged,

they also referred to effect of entering upon defence by the

defendant.

10. The burden of proof in a suit based on a promissory note

with reference to application under Section 101 of the Evidence

Act remains constant and when the transaction is proved basing

on the evidence, it swings in tune with Section 102 of the

Evidence Act. It was the predominant consideration for this

Court in G.Vasu v. Syed Yaseen Sifuddin Quadri(AIR 1987 AP

139(FB)).

11. At the same time, when the nature of the defence is of

denial of the entire suit transaction including execution of

promissory note, abstract principles relating to burden of proof

cannot hold sway, when such defence is not established. More

particularly, when the party, who sets up such defence as the

defendant did not enter the witness box to support the pleadings

in the written statement, the evidence let in on behalf of the

plaintiff should necessarily be considered in the light of such

circumstance.

12. An adverse inference should necessarily be drawn against

the defendant in these circumstances and to hold that purposely

the defendant did not enter the witness box, since the defence is

improper or false. When a party, who chooses to contest the

matter setting up such pleadings, did not come forward to let in

evidence, no premium as such in favour of a party can be

extended basing on assumptions and presumptions as has been

done in this case.

13. Learned trial Judge in para 7.10 observed as under:

"Though the defendant failed to enter into the witness box to testify the facts, since the initial burden rests on the plaintiff to prove the transaction and thereby to draw the presumptions, it is the bounden duty of the plaintiff to prove his case through positive evidence. But, here in this case there are several infirmities in the testimonies of PWs.1 and 2, which raises a serious doubt about the transaction. When the plaintiff has failed to discharge his initial burden, the presumptions cannot be drawn in favour of the plaintiff. Though non-examination of defendant is a drawback to her case, the plaintiff failed to discharge the initial burden which rests on him."

Further observations in para 7.11 are as under:

"Mere holding of instrument is not sufficient to hold that the suit pronote was executed in favour of the plaintiff. Even though the defendant failed to prove that the signature and thumb impression on the suit pronote do not belong to her, the contents of the document have to be proved by the plaintiff. Since the defendant is an employee and if she has in need of amount, she can borrow the same from her working place or district nearest place and not from a place where she has no acquaintance at all and that too from an unknown person. In view of the above material and in view of the decisions referred above, the defendant can show the circumstances which improbabilises the case of the plaintiff. In light of above discussion, this court is of considered view that there are no bonafides on the part of the plaintiff, as such, this court is of the opinion that the plaintiff failed to prove his case. Accordingly, these issues are answered in favour of the defendant and against the plaintiff."

14. The evidence of PWs.1 and 2 was thus discarded holding

that it is unbelievable basing on certain minor discrepancies by

the learned trial Judge.

15. Ultimately, it is for the learned appellate Judge to

reappraise entire evidence and with reference to burden of

proof, which the plaintiff is expected to discharge, observed in

para-29 in his judgment as under:

"It is to be noted that the burden of proof will always be on the plaintiff, but the onus of proof will be shifted to the defendant whenever the plaintiff adduced evidence to prove his contention. Though, the defendant cannot adduce any evidence to prove the negative act of non- existence of consideration, it can be through the cross- examination of plaintiff side witnesses. In the present case the inconsistencies with regard to the number of persons present at the time of execution of Ex.A1 cannot be a material discrepancy to disbelieve the entire version of PWs.1 and 2. Moreover, the finding of trial court is that the defendant is a government employee and it is highly improbable to come over to Ramachandrapuram to borrow money from an unknown person. When the defendant counsel made a suggestion to the PW.1 that the Ex.A1 is a fabricated document and a blank signed promissory note was given by the defendant to a person by name Reddy of Nellore and by using the said promissory note, the present suit is filed, the non-examination of defendant herself as a witness is strengthening the case of plaintiff."

16. In para-35 of the appellate court judgement, it is further

observed as under:

" Under the aforesaid reasons, this Court is of opinion that by adducing the evidence of PWs.1 and 2 and by marking the documents Ex.A1 to A3, the plaintiff clearly established his case and the defendant failed to adduce any evidence to disprove the case of plaintiff and as such the plaintiff is entitled for the suit claim."

17. Relevant for the present purpose are the observations of

the learned appellate judge in para-36:

"The findings of trial Court are completely appears to be basing on assumptions and presumptions with regard to the distance in between the place of residence of defendant and the plaintiff and non-examination of brother-in-law of PW.2. Hence, this Court is of opinion that the findings of trial court are erroneous and not supported any substantive evidence and as such it is liable to be set aside."

18. When basing on the facts and material, when the learned

appellate Judge has chosen to record such findings, which it did

as a last Court of fact, this court, in the second appeal should be

slow to interfere. Particularly when the reasons assigned by the

learned appellate Judge are proper and in accordance with law,

as against erroneous findings of the learned trial Judge basing on

whims and fancies, it cannot be stated that there are such

substantial questions of law that require consideration in terms

of Section 100 C.P.C. by this Court. Consequently, the second

appeal has to be dismissed.

19. In the result, the Second Appeal is dismissed at the

admission stage confirming the decree and judgment of the court