Andhra Pradesh High Court - Amravati

Paliki Govindababu, vs Nurikurthi Veera Venkata ... on 13 October, 2022

     THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

             SECOND APPEAL No.453 of 2022

JUDGMENT:

Defendant filed the above second appeal aggrieved by

the judgment and decree dated 18.02.2022 in A.S.No.195 of

2019 on the file of VIII Additional District & Sessions Judge-

cum-Special Court for Trial of Offences against Women, East

Godavari District, Rajamahendravaram, confirming the

judgment and decree dated 14.10.2019 in O.S.No.147 of

2017 on the file of Senior Civil Judge, Ramachandrapuram.

2. For the sake of convenience and brevity, parties to this

judgment are referred to as per their array in suit.

3. Plaintiff filed the suit O.S.No.147 of 2017 on the file of

Senior Civil Judge, Ramachandrapuram for recovery of an

amount Rs.6,27,750/-, principal being Rs.5,00,000/-.

4. In the plaint, it was contended interalia that defendant

borrowed an amount of Rs.5,00,000/- from the plaintiff on

03.01.2016 for the purpose of his family expenses and to

discharge sundry debts and executed promissory note

agreeing to repay the same with interest @18% per annum.

In spite of repeated oral demands, defendant failed to repay

the amount. Defendant started proclaiming to alienate his

agricultural land. Hence suit was filed for recovery of amount.

5. Defendant filed written statement and contended

interalia that he did not borrow any amount from the plaintiff

and he has no necessity to borrow money from the plaintiff;

that suit promissory note is not supported by consideration;

that plaintiff has no capacity to lend the amount; that brother

of defendant filed two suits O.S.Nos.143 of 2017 and 144 of

2017; that first attestor and second attestor in the suit

promissory note are relatives of defendants therein; that

defendant subscribed a chit with Kukkala Suryanarayana

and at the time of auction, said Suryanarayana obtained two

empty promissory notes from the defendant and the plaintiff

is close relative of the said person; that in view of disputes,

plaintiff obtained blank promissory note from Suryanarayana

and fabricated the same and filed the suit and thus, prayed

the Court to dismiss the suit.

6. Basing on the above pleadings, the trial Court framed

the following issues:

(1) Whether the suit promissory note is true, valid and binding on the defendant?

(2) To what relief?

7. During the trial, plaintiff examined himself as P.W.1

and got examined the attestor and scribe of promissory note

as P.Ws.2 and 3. Exs.A-1 to A-3 were marked. On behalf of

defendant, he examined himself as D.W.1 and no documents

were marked.

8. Trial Court on consideration of both oral and

documentary evidence and also legal aspects, decreed the

suit with costs vide judgment and decree dated 14.10.2019.

Aggrieved by the same, defendant filed appeal A.S.No.195 of

2019 on the file of VIII Additional District & Sessions Judge-

cum-Special Court for Trial of Offences against Women, East

Godavari District, Rajamahendravaram. Lower appellate

Court being the final fact finding Court, framed necessary

points for consideration as contemplated under Order 41

Rule 31 of CPC and on consideration of both oral and

documentary evidence, dismissed the appeal vide judgment

and decree dated 18.02.2022. Assailing the same, the present

second appeal is filed.

9. Heard Sri K.Ramakoteswara Rao, learned counsel for

the appellant/defendant.

10. Learned counsel for appellant would submit that no

consideration was passed under the suit promissory note Ex

A-1. He would submit that the Courts below failed to consider

the evidence of P.Ws.1 to 3 in a proper perspective. He would

also submit that the Courts below ought to have sent Ex.A-1

promissory note to the expert for comparison.

11. Basing on the pleadings, the following substantial

questions of law arise for consideration:

(1) Whether Ex.A-1 promissory note is supported by

consideration?

(2) Whether the defendant rebutted the presumption

under Section 118 of the Negotiable Instruments

Act, 1881 having admitted execution of Ex.A-1?

12. Suit was filed by the plaintiff for recovery of amount on

the strength of Ex.A-1 promissory note. Plaintiff, apart from

examining himself as P.W.1, got examined P.Ws.2 and 3,

attestor and scribe of Ex.A-1. The evidence of P.Ws.1 to 3 is

consistent regarding execution of Ex.A-1 promissory note and

passing of consideration.

13. Defendant admitted execution of Ex.A-1, however

pleaded that no consideration was passed under Ex.A-1. He

further pleaded that he scribed promissory note in

connection with a chit transaction with one Kukkala

Suryanarayana and due to disputes, plaintiff obtained the

said promissory note and fabricated the same.

14. The relevant portion in cross examination of D.W.1 is

extracted below:

"I have verified the documents filed by the plaintiff to show his properties.

It is true that the plaintiff filed certificate showing that he is working as mill driver in Chaitanya Rice Mill, Pasalapudi and as per the said certificate, the plaintiff is getting an income of Rs.18,000/- per month.

The plaintiff also filed certificate issued by the M.R.O. I do not know whether there are disputes between my brother and the plaintiff. There are no cases in between plaintiff and my brother.

I have not issued any notice nor filed any case against Suryanarayana by demanding him to return the blank promissory note.

The signature and thumb impression on Ex.A-1 belong to me. The averments of Ex.A-1 show that I borrowed an amount of Rs.5,00,000/- from the plaintiff on 03.01.2016."

15. The above evidence of D.W.1 coupled with averments in

written statement would manifest that defendant admitted

execution of Ex.A-1 and passing of consideration.

16. Plaintiff having filed suit for recovery of money on the

strength of promissory note, as stated supra, discharged legal

burden regarding execution of Ex.A-1 and passing of

consideration to the defendant. In view of the admission

made by the defendant regarding execution, defendant had to

rebut the presumption available to the plaintiff under Sec

118 of N.I.Act. Apart from since the plaintiff proved passing of

consideration under Ex A-1, the onus shifts to defendant, to

disprove that no consideration was passed under Ex A-1.

However, except the self-serving statement of defendant, he

did not place any cogent evidence to prove that Ex.A-1

promissory note is not supported by consideration.

17. In Bharat Barrel and Drum Manufacturing Company

Vs. Amin Chand Payrelal1, the Hon'ble Apex Court was held

thus:

"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. 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 disentitle 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

(1999) 3 SCC 35

probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."

18. In G.Venkata Rama Subbaiah Vs. D.Rasool Naik2, the

composite High Court of Andhra Pradesh held thus:

"Once the execution of the promissory note is admitted or proved, then it is presumed to be supported by consideration unless contrary is proved. The burden is on the defendant to rebut the same by adducing convincing evidence. Unless the defendant rebuts the presumption by adducing convincing rebuttal evidence, the evidential burden would not shift back to the plaintiff who has legal burden only after adducing such convincing rebuttal evidence, it can be held that thereafter the presumption under Section 118 does not come to the rescue of the plaintiff."

19. Though Ex.A-1 is not compulsorily attestable document

in view of defense taken by defendant, plaintiff also examined

attestor and scribe of Ex.A-1. P.Ws.1 to 3 in one voice stated

about execution of Ex A-1 and passing of consideration under

Ex.A-1. In view of specific defense, plaintiff also marked

Exs.A-2 and A-3 show that he got capacity to lend the

amount. However, as observed supra, defendant failed to

prove his contention regarding non passing of consideration

under Ex.A-1 by leading cogent evidence.

2003 (4) ALT 414

20. Defendant in this second appeal for the first time, filed

application to send Ex.A-1 promissory note for expert

opinion. But the appellant-defendant ought to have taken

steps to send Ex.A-1 for expert, however, no steps were taken

by the defendant. In fact, defendant admitted his signature

on Ex A-1.

21. Regarding scope of Section 100 CPC, the Hon'ble Apex

Court in Hero Vinoth Vs. Seshammal3, held that:

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

AIR 2009 SC 1481

(i) ...

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."

22. The Hon'ble Apex Court in Randhir Kaur Vs. Prithvi

Pal Singh and Ors.4, held thus:

"16. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact."

23. The findings of the facts recorded by the Courts below

are based on appreciation of both oral and documentary

(2019) 17 SCC 71

evidence. Unless, the appellant demonstrates that substantial

question of law involved in the second appeal, interference of

this Court with the judgments rendered by the Courts below

in exercise of jurisdiction under Section 100 of CPC is not

warranted. In this case on hand, as observed supra, no

questions of law much less substantial questions of law arose

in the appeal. Hence, the second appeal is liable to be

dismissed, however, without costs.

24. Accordingly, the second appeal is dismissed at