Dontala Venkata Naga Ratna Kumari vs Appineni Vasantha Kumari
2023 Latest Caselaw 4528 AP

     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

                 Appeal Suit No.2098 OF 2018
JUDGMENT:-

     The Judgment, dated 08.08.2018 in O.S.No.28 of 2016 on

the file of XV Additional District Judge, Nuzvid ("Additional

District Judge" for short), is under challenge in the present

Appeal Suit filed by the unsuccessful defendant.

     2)      The parties to this Appeal Suit will hereinafter be

referred to as described before the learned Additional District

Judge for the sake of convenience.

     3)      The case of the plaintiff, in brief, according to the

averments in the plaint before the learned Additional District

Judge, is that on 06.06.2014 the defendant borrowed a sum of

Rs.12,00,000/- from the plaintiff for her family expenses by

agreeing to repay the same with interest @ 24% per annum on

demand either to the plaintiff or on her order.    The defendant

executed a demand promissory note accordingly in favour of the

plaintiff. Later, the defendant was unable to discharge the

promissory note debt along with interest agreed. As the

defendant failed to repay the amount due under the suit

promissory note, the plaintiff got issued a registered notice on

17.06.2016     demanding    the   defendant   to   discharge   the
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promissory note debt. The defendant received the said notice,

but kept quite. Hence, the suit.

     4)    The defendant before the learned Additional District

Judge got filed a written statement denying the case of the

plaintiff and her contention, in brief, according to the written

statement, is that she is a housewife. Her husband is an agent

in a transport company by name Bala Krishna. She got one son

and one daughter. She performed the marriage of her daughter

with a Constable.   Her son-in-law is a Constable. Her son is

working as a Software Engineer at Hyderabad. Her husband is

getting a commission of Rs.10,000/- per month which is more

than sufficient for the maintenance of their family. Her daughter

requested the defendant to send an amount of Rs.70,000/- for

paying donation for obtaining the seat in convent. The plaintiff

got acquaintance with the defendant. She requested the plaintiff

to advance an amount of Rs.70,000/-. The plaintiff informed to

the defendant that she would advance the amount, if she signed

on a blank promissory note and to pay interest at Rs.5/- per

hundred per month. Out of her necessity and due to confidence

in the plaintiff, the defendant agreed for the said terms.

Accordingly, the defendant put her signature on a promissory

note putting the borrowed amount in figure as Rs.70,000/- and

signed on the promissory note as D.V.N.R. Kumari. The said
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promissory note was not filed along with plaint. On the other

hand, another promissory note signed as D. Kumari was pressed

into service as per the wishes of the plaintiff. The plaintiff lent

only Rs.70,000/- to her. The allegations that she borrowed

Rs.12,00,000/- from the plaintiff      is absolutely false.    The

defendant has to pay only an amount of Rs.70,000/- together

with interest. At the time of the defendant putting her signature

on the blank promissory note, none of the attestors or the scribe

was present. The ball point pen with which the defendant signed

on the promissory note and the ball point pen used for the

signatures of the attestors and the scribe are entirely different.

It shows that subsequently the plaintiff filled up the same as she

wished. Thus the said suit promissory note is forged one. She

has no necessity to borrow huge amount of Rs.12,00,000/-. The

plaintiff has no capacity to advance Rs.12,00,000/-. The plaintiff

has no substantial properties to lend huge amount.        The suit

promissory note is not supported by consideration to the extent

of Rs.11,30,000/-. The defendant is ready and willing to deposit

Rs.70,000/- with interest @ 24% per annum. Hence, Court may

decree the suit for an amount of Rs.70,000/- with proportionate

costs together with subsequent interest @ 12% per annum and

dismiss the suit in respect of the rest of the claim together with

costs.
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      5)    On the basis of the above pleadings, the learned

Additional District Judge, settled the following issues for trial:

      (1) Whether the suit promissory note is true, valid and
      supported by consideration?

      (2) Whether the defendant borrowed only Rs.70,000/-, but not
      Rs.12,00,000/- as claimed by the plaintiff, but executed blank
      promissory note?

      (3) Whether the plaintiff is entitled to suit claim?

      (4) To what relief?

      6)    During the course of trial, on behalf of the plaintiff,

P.W.1 and P.W.2 were examined and Ex.A.1 to Ex.A.3 were

marked. The defendant examined herself as D.W.1.

      7)    The learned Additional District Judge on conclusion

of the trial and on hearing the arguments of both sides

answered the issues in favour of the plaintiff and against the

defendant. Aggrieved of the said judgment and decree, the

unsuccessful defendant filed the present Appeal Suit.

      8)    Now, in deciding the appeal, the points that arise for

consideration are as follows:

      (1) Whether the plaintiff before the learned Additional District
      Judge proved the execution of the suit promissory note by the
      defendant and that it is supported by consideration?

      (2) Whether the judgment and decree in O.S.No.28 of 2016 on
      the file of learned Additional District Judge is sustainable under
      law and facts and whether there are any grounds to interfere
      with the same?
                                  5




      (3) To what relief?

Point Nos.1 and 2:

      9)    P.W.1, the plaintiff before the learned Additional

District Judge, got filed her chief examination affidavit adverting

to the plaint averments and through her examination Ex.A.1 to

Ex.A.3 were marked i.e., Ex.A.1 is the demand promissory note,

dated 06.06.2014 executed by the defendant in favour of the

plaintiff, Ex.A.2 is the office copy of notice sent on behalf of the

plaintiff to the defendant, dated 17.05.2016 and Ex.A.3 is the

returned   cover,    dated   24.05.2016.    Further   the   plaintiff

examined P.W.2, one of the attestors of Ex.A.1 and her chief

examination affidavit is that the defendant borrowed a sum of

Rs.12,00,000/- from the plaintiff on 06.06.2014 for her family

expenses, agreeing to repay the same with interest @ 24% per

annum either to the plaintiff or to her order on demand. By that

time one V. Venkata Rao, R. Durga Prasad and he (P.W.2) were

present.   R. Durga Prasad scribed the suit promissory note on

the instructions of the defendant. He (P.W.2) attested as second

attestor. The defendant subscribed her signature on the suit

promissory note after receiving amount of Rs.12,00,000/- from

the plaintiff and handed over the same to the plaintiff. Later, he

came to know that the defendant did not discharge the amount.
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      10)   Turning to the evidence of D.W.1, who is no other

than the defendant, her chief examination affidavit is nothing

but adverting to the contents of the written statement.

      11)   Sri N. Nagaraja Kapoor, learned counsel for the

appellant, would contend that the defendant took a plea of

forgery before the learned Additional District Judge. After cross

examining herself as D.W.1, she filed I.A.No.74 of 2018 to send

Ex.A.1 to the hand writing expert. It was dismissed by the

learned Additional District Judge instead of allowing the same.

The learned Additional District Judge took the previous character

of the defendant in the civil litigation to decide the suit which is

not in according to law. The erroneous findings were made as if

the defendant took inconsistent and contrary pleas. The learned

Additional District Judge did not consider the plea of the

defendant in the written statement in proper perspective. The

trial Court relied upon the admissions made by D.W.1 as if she

borrowed Rs.12,00,000/- from the plaintiff and executed Ex.A.1.

The recording of deposition regarding to the said admission was

not in accordance with real event. It was apparently a type

mistake. He would submit that the respondent remained exparte

in the present appeal and did not choose to contest, as such, the

Appeal Suit is liable to be allowed.

12) The learned counsel for the appellant placed a

citations memo in the Registry as if he relied upon 9 citations

without filing copies thereof. This Court got the copies from the

relevant sites which are as follows:

(1) Lalit Popli vs. Canara Bank and others1

(2) Jagjit Singh vs. State of Haryana and others2

(3) Thiruvengada Pillai vs. Navaneethammal and others3 (4) G. Someshwar Rao vs. Samineni Nageshwar Rao and others4

(5) S. Chinnathai vs. K.C. Chinnadurai5

(6) Ajay Kumar Parmar vs. State of Rajasthan6

(7) Saharban Beevi vs. S. Mumtaj7

(8) Perumal vs. Dhanalakshmi Ammal8 and

(9) Prahlad Singh vs. Syed Ali Musa Raza and others9

13) As per the proceedings sheet, the respondent/

plaintiff having received the notice in this appeal remained

exparte.

14) Turning to the evidence of P.W.1 in cross

examination, she deposed that she is a housewife, but she has

AIR 2003 SC 1796

(2006) 11 SCC 1

AIR 2008 SC 1541

(2009) 14 SCC 677

(2010) 3 MLJ 65

(2012) 12 SCC 406

2013 (2) CTC 394

(2020) 8 MLJ 43

1997(3) ALT562

immovable properties i.e., plots. She did not file any document

to show that she owns properties. Her husband is doing business

which is main source of income for her family. She has account

in Andhra Bank. She is not filing any income tax returns. She

deposed that in Ex.A.1 promissory note, the signature on the

revenue stamp is D. Kumari but she did not sign as D. Venkata

Naga Ratnakumari. As per the evidence affidavit the name of

the scribe is shown as R. Naga Prasad and in the promissory

note it is mentioned as Durga Prasad. The denomination of

consideration was Rs.500/- and Rs.1,000/- currency notes. She

denied that the defendant borrowed only Rs.70,000/- and

executed promissory note for Rs.70,000/- only, but she

suppressed the said document and created Ex.A.1 by forging the

signature of the defendant with the help of attestors as if

defendant borrowed Rs.12,00,000/-. She denied that the suit is

filed with false claim based on forged promissory note, as such,

it is liable to be dismissed. One week prior to Ex.A.1, they sold

away plot out of the sale proceeds amount and she paid the

consideration to the defendant.

15) Coming to the evidence of P.W.2 in cross

examination, he deposed that on 06.06.2014 the consideration

under suit promissory note was paid by the plaintiff to the

defendant. He, plaintiff, defendant and scribe and one more

witness V. Venkata Rao were present. The cash consideration

was paid in Rs.500/- and Rs.1,000/- denominations. He did not

count the amount, but plaintiff and defendant verified the

amount. He denied that no transaction took place in his

presence and no consideration was passed and that Ex.A.1 was

not executed in his presence.

16) Turning to the evidence of D.W.1 in cross

examination, she deposed that it is true that previously there

was a criminal case filed against her on the file of Assistant

Sessions Judge, Machilipatnam, on the allegation that she run a

private chits and committed acts of cheating several people. It

is true that the said case is still pending. It is true that several

persons filed civil suits against her for recovery of money. It is

true that the present suit is also one of such suit. "It is true that

she borrowed Rs.12,00,000/- from the plaintiff in this suit and

executed suit promissory note, Ex.A.1 in her favour. It is true

that the plaintiff requested her number of times to repay the

debts. It is true that legal notice was issued on her but she did

not repay the debt". She denied that she is liable to pay suit

claim of Rs.17,71,200/- together with interest on the principal

sum of Rs.12,00,000/-. She says that she borrowed only

Rs.70,000/- but executed the promissory note as demanded by

the plaintiff. She denied that she is deposing false by taking up

false pleas.

17) At the outset, I would like to deal with as to whether

there was proper pleading made by the defendant with regard to

the plea of forgery as canvassed by her. At one breath the plea

of the defendant in the written statement is that she borrowed

only Rs.70,000/- and put her signature by showing Rs.70,000/-

and signed it as D.V.N.R. Kumari and the said promissory note

was not filed by the plaintiff. According to her, another

promissory note signed as D. Kumari was pressed into service.

Her plea is that at the time the defendant put her signature on

the blank promissory note, none of the attestors were present

and the ball point pen with which the defendant signed on the

promissory note and the ball point pen used by the attestors

and scribe are entirely different and that this circumstance

shows that the plaintiff obtained a blank promissory note and

subsequently filled up. The above said narration is nothing but

referring to Ex.A.1. The categorical pleading as if another

promissory note signed as D. Kumari was pressed into service

means that the defendant at one breath did not dispute the

signature as D. Kumari on Ex.A.1. In that view of the matter,

another contention that the promissory note is forged is nothing

but contra to her earlier pleading admitting that another

promissory note was signed as D. Kumari. It is a fact that the

defendant filed I.A.No.74 of 2018 to send Ex.A.1 to the hand

writing expert and it was dismissed by the learned Additional

District Judge with reasons. He took into consideration that the

defendant made inconsistent pleadings and further did not file

the contemporary signature of her and she sought to compare

her signature only with written statement and Vakalat and there

might be a deliberate effort to sign on the Vakalat and written

statement in a different manner.

18) Now coming to the admissions made by D.W.1, the

crucial admissions as referred to by the Court are to the effect

that virtually she admitted that she borrowed Rs.12,00,000/-

from the plaintiff and executed the suit promissory note. It is

true that plaintiff requested her number of times to repay the

debt. It is to be noticed that the vehement argument of the

appellant is that her evidence was not recorded in a proper

manner and the deposition was recorded as if she admitted but

in fact she denied the borrowing of Rs.12,00,000/- and

execution of Ex.A.1 and the word „not‟ in the suggestion was not

added. It is to be noticed that the deposition of D.W.1 reveals

that it was read over to the witness and acknowledged by her to

be correct. As evident from the judgment of the learned

Additional District Judge, this plea was never raised. So, for the

first time in the appeal, the appellant wanted to dispute the

manner of recording of the deposition which is not at all tenable.

Apart from this, when a suggestion was put to her that she is

liable to pay the suit claim of Rs.17,71,200/-, she denied and

volunteers that "I borrowed only Rs.70,000/-, but executed

promissory note as demanded by the plaintiff". Hence, at the

time of cross examination, her contention is that she borrowed

only Rs.70,000/- but executed the promissory note as

demanded by the plaintiff. It shows that she did not dispute her

signature on Ex.A.1. As pointed out earlier the contents of the

written statement are nothing but inconsistent i.e., at one hand

admitting her signature on the suit promissory note and at

another hand she took a single line plea that it is forged.

19) There is evidence of P.W.2, one of the attestors

under Ex.A.1, corroborating the testimony of P.W.1. There

remained nothing in the cross examination of P.W.2 so as to

disbelieve his evidence. To conclude to this extent, there was

no proper foundation much less consistent foundation that the

defendant disputed the signature of her on Ex.A.1 and during

cross examination of D.W.1, she admitted execution of Ex.A.1

and borrowing of Rs.12,00,000/-, but whispered that she

borrowed Rs.70,000/- only but executed the promissory note as

demanded. It is to be noticed that according to her, legal notice

was served on her, but she did not repay the amount.

Therefore, even she did not care to issue any reply. Thus, to

discharge the burden, plaintiff examined P.W.2 and further there

are admissions of D.W.1 with regard to the suit transaction. At

this juncture, I would like to deal with the decisions cited by the

learned counsel for the appellant.

20) Turning to citations in Jagjit Singh's case (1 supra)

and Sardar Prahladsingh's case (9 supra), they are virtually

nothing to do with the present situation and they are misquoted

to the present situation. Turning to the citations in Lalit Popli's

case (2 supra), Thiruvengada Pillai's case (3 supra), G.

Someshwar Rao's case (4 supra), S. Chinnathai's case(5 supra),

Ajay Kumar Parmar's case (6 supra), Saharban Beevi's case (7

supra) and Perual's case(8 supra), they are all to deal with the

opinion relating to hand writing expert and power of the Court to

make comparison under Section 73 of the Indian Evidence Act,

as the case may be. By relying on the above, the appellant

cannot boost the contention in any way. As pointed out, the

appellant miserably failed to make a proper pleading

consistently in written statement that Ex.A.1 is forged. Apart

from this, as pointed out, D.W.1 admitted in cross examination

absolutely the signature of her on the suit promissory note and

this Court dealt with the same elaborately.

21) Under the circumstances, the plea of forgery

canvassed by the defendant cannot stands to any reason. In

the light of the above, citations mentioned by the learned

counsel for the appellant in the citations memo are of no use to

his case.

22) By relying upon the above decisions, the contention

of the learned counsel for the appellant appears to be that this

Court may make comparison of the disputed signature on Ex.A.1

with that of the admitted signatures on the written statement

and Vakalat. It is to be noted that the learned Additional District

Judge dismissed the prayer in I.A.No.74 of 2018 on the ground

that the defendant did not chose to file the contemporary

signatures and that it is unsafe to look into the signature on

Vakalat and written statement as there was a possibility to put

those signatures in a different manner.

23) As this Court already pointed out that there is no

merit in the contention of the defendant with regard to her plea

of forgery. In the set of circumstances, it is dangerous to make

a comparison of the signature on Ex.A.1 with that of the

signature on written statement and Vakalat. Hence, absolutely,

it is not a case where this Court can make exercise of the

comparison of the signature on Ex.A.1 with that of the signature

on written statement and Vakalat.

24) It is a fact that the respondent/plaintiff remained

exparte and did not choose to contest this appeal. The

respondent/plaintiff on merits got the decree before the learned

Additional District Judge. Here, when the defendant challenged

the same before this Court, this Court has to decide the appeal

on merits. Simply because the respondent/plaintiff remained

exparte, it would not enable the appellant to seek to allow the

appeal automatically.

25) Though previous character of the defendant is not

relevant in the civil suit, but it is not that the trial Court decreed

the suit looking into the above aspect. There is a clear admission

from D.W.1 in cross examination that several money suits were

filed against her and the present suit is one of such suit. In fact

in the above admissions made by the defendant as D.W.1, she

did not clarify as to whether in those suits she was shown as

D.V.N.R. Kumari. So, merely because the defendant put her

signature in Ex.A.1 as D.V.N.R. Kumari instead of D. Kumari is

not strengthening her case in any way especially when there

was an admission on the part of D.W.1 voluntarily about the

execution of the suit promissory note, but with a contention that

she was compelled to do so. No man of reasonable prudent by

just borrowing Rs.70,000/- would sign blank promissory note as

demanded.

26) Viewing from any angle, I am of the considered view

that the contention of the appellant that she signed blank

promissory note only for Rs.70,000/- is not at all tenable. The

plaintiff before the trial Court categorically proved the execution

of Ex.A.1 and passing of consideration there under and the

defendant failed to prove contrary. Hence, the judgment under

challenge is sustainable under law and facts, as such, there are

no merits in the appeal.

Point No.3:

27) In view of the findings as referred to above, the

Appeal Suit is to be dismissed.

28) In the result, the Appeal Suit is dismissed confirming

the judgment, dated 08.08.2018 in O.S.No.28 of 2016, on the

file of XV Additional District Judge, Nuzvid, but, under the

circumstances, no order as to costs.

________________________ JUSTICE A.V. RAVINDRA BABU Dt.26.09.2023.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

Appeal Suit No.2098 of 2018

Date: 26.09.2023

PGR