Visakhapatnam (For Short "The ... vs "Once The Execution Of The ...
2023 Latest Caselaw 3906 AP

        THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                    APPEAL SUIT No.238 OF 2016

JUDGMENT:

1. Aggrieved by the Decree and Judgment dated 15.09.2014 in

O.S.No.79 of 2010 passed by the learned VI Additional Senior Civil Judge,

Visakhapatnam (for short "the trial Court"), the appellants/defendants

preferred this appeal questioning the correctness of the Decree and

Judgment passed by the trial Court.

2. For the sake of convenience, the parties will hereinafter be referred to

as arrayed in the Original Suit.

3. The plaintiff‟s claim is that the defendants 1 and 2, who are the

husband and wife, jointly borrowed Rs.5,00,000/- from the plaintiff on

22.06.2008 for their business purpose and to purchase of lands and they

jointly executed promissory note in favour of the plaintiff, agreeing to repay

the same with interest at 24% per annum. In spite of repeated demands

made by the plaintiff, the defendants failed to repay the said amount.

Later, the plaintiff got issued legal notice on 30.11.2009 to the defendants,

having received the same neither they give reply nor discharged the said

debt.

4. The 1st defendant filed written statement and the same is adopted by

the 2nd defendant by filing an adoption memo. The 1st defendant denying

the allegations made in the plaint and contending that he is an Advocate

by profession and also a Notary. The plaintiff approached the 1st defendant

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in the year 2007, to acquire lands in NGR Puram Village from various

Ryots by purchasing an extent of Ac.8.00 at the rate of Rs.4900/- per cent.

The plaintiff paid some amounts as advance to the land owners.

Subsequently, due to downfall in real estate business, there is a short fall

of value of the lands; the plaintiff was unable to pay the remaining balance

sale consideration, insisted the land owners for refund of advance amount,

but they did not pay the amount. Later, the plaintiff approached the 1st

defendant to exercise his influence, but the 1st defendant expressed his

inability to interferein the matter. Then, the plaintiff bore grudge against

1st defendant and fabricated the suit pronote, and also other pronotes by

forging the signatures of the defendants and filed the suit.

5. Based on the above pleadings, the Trial Court framed the issues as

well as additional issue, which are as under:-

1) Whether the plaintiff is entitled to recover the suit amount or not?

2) Whether the suit pronote is true, valid and binding on the defendants or not?

3) To what relief?

Additional Issue:

Whether the suit promissory note is not supported by consideration?

6. On behalf of the plaintiff, P.Ws.1 to 3 were examined and marked

Exs.A1 to A4 and on behalf of the defendants D.Ws.1 to 4 were examined

and Exs.C.1 to C.12 were exhibited through an Expert/D.W.4 on behalf of

the defendants.

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7. After considering the evidence on record, the trial Court decreed the

suit with costs for Rs.6,82,000/- with interest @ 12% per annum from the

date of suit till the date of decree and thereafter @ 6% per annum from the

date of decree till the date of realization on principal amount of

Rs.5,00,000/-.

8. I have heard the arguments of learned counsel for both parties.

9. Sri Aravala Rama Rao, learned counsel for the appellants/defendants,

contends that the attestors and scribe are the followers of the plaintiff and

that the appellants never executed any promissory notes in favour of the

plaintiff and there was no necessity to borrow such amount. He further

contended that the trial Court failed to see that the respondent/plaintiff

developed grudge against the 1st appellant and fabricated the suit pronote

and other pronotes by forging his signatureHe further contended that there

is no possibility to the plaintiff to claim much amount and no possibility to

lend much amount on various pronotes (12) in number; there are no

Income Tax returns filed by the respondent/plaintiff and therefore the

plaintiff has no capacity to lend such amount to the appellants. He further

contended that the trial Court failed to see that the 1st appellant acted as a

mediator and obtained sale agreement from him and other Ryots, later the

plaintiff did not come forward to pay the balance sale consideration and

insisted to return the advance but the Ryots did not accept. The trial Court

erred in holding that once execution of pronote is proved, the Court shall

presume that the suit pronote is supported by consideration, though there

is no evidence adduced to prove the sale consideration and the trial Court

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failed to see that the evidence of P.W.1 is not corroborated with the

evidence of P.Ws.2 and 3. The trial Court ought to have seen that normally

the courts awarded interest at 6% per annum instead of awarding 12% per

annum.

10. Per contra, Sri P.V.Ramana, learned Counsel for the respon-

dent/plaintiff would contend that the trial Court correctly appreciated the

facts of the case and reached a correct conclusion. The reasons given by

the trial Court do not require any modifications.

11. Having regard to the pleadings in the suit, the findings recorded by

the trial Court and in the light of the rival contentions and submissions

made before this Court, the points that would arise for determination are:

(1) Whether the trial Court is justified in holding that the suit promissory note Ex.A1 is true, valid and supported by consideration?

(2) Whether the decree and Judgment passed by the Trial Court needs any interference?

POINT Nos.1& 2:

12. The plaintiff is examined as P.W.1. The 1st defendant is examined as

D.W.1. The 2nd defendant is the wife of 1st defendant. To prove the Ex.A1

suit transaction, the plaintiff also got examined P.W.2-Ch. Bhaskara

Rao/Attestor, and P.W.3-V. Gowreswara Rao. P.Ws.1 to 3 deposed that

both the defendants borrowed Rs.5,00,000/- from the plaintiff on

22.06.2008 and executed Ex.A1 promissory note on receipt of

consideration amount thereunder. Evidently, the plaintiff got issued a legal

notice [Ex.A2] to the defendants calling upon them to pay the amount

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payable under Ex.A1 promissory note with interest. To show the receipt of

the legal notice, the plaintiff relied on Ex.A3 and Ex.A4 acknowledgements.

It is the defendants' stand that the plaintiff forged the defendants'

signatures and fabricated Ex.A1 promissory note. Evidently, P.W.1 and

D.W.1 jointly carried on the coconut and cashew business for about 14 to

15 years as partners, and 1st defendant is an advocate by profession.

P.W.1 was cross-examined regarding his financial capacity to lend the

amount covered under Ex.A1. The evidence of P.W.1 shows that he owns

Ac.2.00 of the land. The recordalso discloses that the plaintiff filed suits

against the defendants based on the other six promissory notes.

13. P.W.2 testified in cross-examination that the defendants borrowed

amounts from the plaintiff twelve times in 2007-2008 within a gap of one

or two months. At eight times, the defendants borrowed amounts of

Rs.5,00,000/- each and the remaining promotes concerned, D.1 and D.2

borrowed Rs.2,00,000/- each under two promissory notes and

Rs.4,00,000/- under the remaining two promissory notes. The evidence of

P.W.2 coupled with Ex.A1 shows that he attested the promissory note.

14. P.W.3, the Scribe of the promissory note, also deposed that D.1 and

D.2 executed twelve promissory notes in 2007-2008. P.W.3 expressed

ignorance as to whether there are suits filed by the plaintiff other than six

suits. The cross-examination of P.Ws.1 to 3 appears to be regarding the

other transactions also. It is not much relevant and proper to deal with the

contentions regarding the other transactions.

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15. It is the defendants case that during the year 2007, the plaintiff

approached D.1 to acquire lands in NGR Puram village from various ryots

to the extent of Ac.8.00 @ Rs.4900/- per cent, and the 1st defendant acted

as mediator; the plaintiff paid some amounts to land owners and

subsequently there was a downfall in the real estate business; and the

plaintiff was unable to pay the balance amount, and insisted the land

owners refund the amount, but they did not pay the amount; plaintiff

insisted 1st defendant to exercise his influence and 1st defendant expressed

his inability and the 1st defendant advised the plaintiff to pay the balance

amount, the plaintiff developed a grudge against D.1 and fabricated the

pronote by forging the defendant‟s the signature. Having taken such pleas,

defendants should not dispute the financial capacity.

16. To establish their case, the defendants got examined D.W.2-G.Chinna

Rao and D.W.3-L.Appala Naidu. D.Ws.2 and 3 supported the defendant's

stand in the chief examination. However, as noted correctly by the trial

Court, their accounts diverged during cross-examination. In contrast to the

earlier version, D.W.2‟s cross-examination revealed a completely different

version. He testified that the transaction had occurred solely between

himself and D.1 with no sale transaction taking place between him and the

plaintiff in 2007. DW.2‟s testimony indicated that the plaintiff acquired

approximately Ac.8.00 of the land from his six paternal uncles. Notably,

D.1 has raised questions regarding the plaintiff‟s failure to pay the

remaining sale amount. Additionally, D.W.2 revealed he had often enquired

with D.1 due to the sale transaction between him and D.1. Upon cross

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examination, D.W.2‟s testimony did not align with the defendants‟ case as

contended in the suit.

17. Regarding the DW.3‟s cross examination, he also affirmed that he

lacked personal knowledge concerning the financial transactions involving

the plaintiff and D.1. In contrast, the 1st defendant failed to show that the

plaintiff entered into sale transactions with the farmers of NGR Puram

accompanied by an advance payment to those farmers. If there is truth in

the 1st defendant‟s version; he could have examined the farmers, who

entered into agreement with the plaintiff. As such, this Court finds that the

defendants failed to establish the plea of developing a grudge against him.

Furthermore, the defendants have not provided a substantial basis for the

alleged grudge against the plaintiff. Notably, the 1st defendant has not

asserted that he has undertaken the responsibility of collecting amounts

from the farmers. It becomes difficult to accept the defendants‟ contention

that the plaintiff forged the promissory notes. Furthermore, there is no

indication from the defendants that the disputes arose between them and

the plaintiff concerning their coconut and cashew business.

18. Whenever a party disputes the signature on the particular document,

two remedies are open to him either to request the Court to compare the

signatures or to file an application to send the document to the expert for

comparison. No doubt, the Handwriting Expert's opinion is not the final

word on the issue and is not conclusive, but it can be taken as a

corroborative piece of evidence. As there is a serious dispute about the

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genuineness of signatures on the Ex.A1 promissory note, the Expert

opinion would go a long way in resolving the controversy. An Expert is not

a witness of fact, and his evidence is advisory.The defendants examined

D.W.4-Narendra Singh, an Expert, whose evidence was recorded by an

Advocate-Commissioner and Ex.C1 to Ex.C12 documents were marked

through the Expert. The Expert gave his opinion, stating that the disputed

signatures of Q.1 and Q.2 are quite similar to the admitted signatures

available on Vakalat, Suit summons and specimen signatures obtained in

open Court. In his opinion, the signatures were written freely in disputed

signatures and do not show any sign of imitation or disguise. The

similarities are seen in the formation of 'S', „m‟ 'h', 'l', and 'i', as well as

habit of writing Simhachalam. The similar habit of the apex of „h‟, „k‟,

execution of „m‟, as well as combination of „ha‟, „la‟, „Si‟. The Expert offered

comprehensive reasoning to support his conclusion. No substantive

evidence was brought forth to cast a doubt on the Expert‟s testimony.

19. In Ram Narain v. State of Uttar Pradesh1, the Hon‟ble Apex Court

considered Section 45 of the Evidence Act and the circumstances under

which the evidence of an expert can be accepted by the Court and con-

cluded as under:

"...But this opinion evidence, which is relevant, may be worthy of ac- ceptance if there is internal or external evidence relating to the docu- ment in question supporting the view expressed by the expert. If after comparison of the disputed and admitted writings by the Court itself, when the presiding officer is familiar with that language, it is consi-

AIR 1973 SC 2200

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dered safe to accept the opinion of the expert then the conclusion so arrived at cannot be assailed on special leave on the mere ground that comparison of handwriting is generally considered as hazardous and inclusive and that the opinion of the handwriting expert has to be received with consideration caution."

20. In Vadrevu Annapurnamma v. Vadrevu Bhima Sankara Rao and

Others2, the Composite High Court of Andhra Pradesh at Hyderabad

observed thus:

"There are many factors which have to be taken into consideration in effecting a comparison of the two signatures, and although a Court could apply its own eyes and its own mind to determine whether a particular signature is resembling another it would be going beyond the ordinary limits of the capacity of a Court to constitute itself as a Handwriting Expert and try to compare the signature without all the gadgets and devices which are available to a Handwriting Expert, besides the lack of expert knowledge which a Handwriting Expert possesses." The above legal position makes it clear that the expert's opinion is not excluded from the purview of examination and it was opined that it will help the Court in exercising power of comparison under Section 73 of the Evidence Act.

21. At this stage, it is apposite to refer to State of Maharashtra v.

Sukhdev Singh3, wherein it was held as follows:

"In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted."

"It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of Handwriting is an imperfect and frail one as compared to the science of identification of fingerprints."

1960 AIR (AP) 359

(1992) 3 SCC 700

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"No hard and fast rule can be laid down in this behalf but the Court has to decide in each case of its own merits what weight it should at- tach to the opinion of the expert."

22. In order to satisfy myself, I have seen the admitted and disputed

signatures of the defendants. I have no reason to doubt the Expert‟s

opinion, as the signatures appear similar. The evidence of DW.4-Expert,

therefore, is duly corroborated by the evidence of PWs.2 and 3.

23. The Expert opinion does not conflict with the evidence of P.Ws.1 to 3

regarding the execution of the promissory note by the defendants. The

reasons for the opinion are convincing, and there is no reliable evidence

throwing doubt. The report of the Expert cannot be overlooked by taking

into consideration that the science of identification of Handwriting is an

imperfect and frail one. This Court finds no valid reason to differ the Expert

opinion. There was no acceptable direct testimony which was destructive of

the Expert‟s opinion. There were no features also which made the Expert‟s

opinion unreliable.

24. The evidence of PW.1 to PW.3 clearly shows that the defendants have

subscribed their signatures on the Ex.A.1-promissory note and received

the consideration. Once those materials were available, naturally, the pre-

sumption under section 118 of the Negotiable Instruments Act would come

into play.

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25. In G. Venkata Rama Subbaiah Vs. D. Rasool Naik4, 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."

26. In a decision Bonalaraju V. S. Sarupula Srinivas5, the composite

High Court of Andhra Pradesh held that:

"once execution is proved the presumption under Section 118 of N.I. Act that it is supported by consideration automatically applies and the contention that the plaintiff is not only to establish the execution but also establish passing on the consideration is rejected".

27. In a decision Abbisetti Krishnamoorthy V. Singasani Raghura-

maiah (died) per L.R.s6, the composite High Court of Andhra Pradesh

held that:

"Section 118 of the N.I Act shows that the presumption attached to passage of consideration (as is the subject matter of this Appeal) just like other presumption also is clearly rebuttable and it is for the defendant to satisfy the Court that in a given case, the presumption cannot be drawn".

28. Having regard to the evidence, which is adverted to supra, this Court

views that the defendants do not show satisfactory and reliable evidence or

circumstance to disbelieve the evidence of PWs.1 to 3 regarding the execu-

2003 (4) ALT 414

2006(2) ALD 202

2011(5) ALT 143

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tion of the Ex.A.1 promissory note by the defendants and passing of con-

sideration. The evidence of PWs.1 to 3 is consistent regarding the execution

of the Ex.A.1 promissory note by the defendants on receipt of the consider-

ation amount. Though PWs.1 to 3 were subjected to lengthy cross-

examination, nothing was elicited to discredit their evidence. The plaintiff

and his witness have no reason to fabricate the suit promissory notes.

PWs.2 and 3 have no reasons to depose falsehood against the defendants‟

interest. They gain nothing by supporting the plaintiff‟s case unless there is

a truth. However, even the rebuttal could be given by direct evidence or by

proving the preponderance of probabilities.

29. In the present case, the defendants have not rebutted the

presumption, even by the preponderance of probabilities. The evidence of

PWs.1 to 3 establishes the execution of Ex.A.1 promissory note. The

burden lies on the defendants to prove the non-existence of consideration

by bringing on record such facts and circumstances, which would lead the

Court to believe the non-existence of the consideration. Suppose the

defendants have discharged the onus of proof showing that the existence of

consideration was improbable or doubtful and the execution of the

promissory note, the onus would be shifted to the plaintiff. Then they will

be obliged to prove the existence of the consideration.

30. On studied scrutiny, it is seen that the defendants have not produced

any evidence to discharge the onus on him. The defence taken by the

defendants is not substantiated. The defendants have failed to prove their

contention regarding non-passing of consideration under Ex.A.1 by leading

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cogent evidence. The presumption under section 118 of the Negotiable

Instruments Act 1881 is a statutory one, and unless it is rebutted, it has to

be presumed that consideration has passed.

31. For the reasons stated above, this Court is of the opinion that the

plaintiff is able to establish the execution of the suit promissory note in his

favour by the defendants after receipt of the consideration amount

thereunder.

32. After careful consideration, the trial Court had adequately

appreciated the evidence. There is no reason for this Court to arrive at a

different conclusion than the one arrived at by the trial Court. I am of the

opinion that the findings arrived at by the trial Court are absolutely

correct, and no justifiable reasons have been shown by the

appellants/defendants for arriving at different conclusions. I agree with the

conclusion reached at by the trial Court.

33. Accordingly, the Points are answered in favour of the plaintiff by

holding that the Trial Court is justified in holding that the defendants

executed the suit promissory note and received the consideration amount

there under. Given the preceding discussion, the view taken by the trial

court does not call for any interference and this Appeal fails and is hereby

dismissed. The impugned Decree and Judgment passed by the trial court is

upheld.

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34. As a result, the Appeal is hereby dismissed without costs by

confirming the Decree and Judgment dated 15.09.2014 in O.S.No.79 of

2010, passed by the learned VI Additional Senior Civil Judge,

Visakhapatnam.

Consequently, miscellaneous petitions pending, if any, in this Appeal

shall stand closed.

_________________________________ JUSTICE T. MALLIKARJUNA RAO

Date: 22.08.2023 MS

T.M.R.,J AS No.238 of 2016

THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

APPEAL SUIT NO.238 OF 2016

DATE: 22.08.2023

MS