Andhra Pradesh High Court - Amravati
M/S. Kishore Boiled Rice Mill vs Puvvada Pullaiah Died Per Lrs Rr 2 To 6 on 19 June, 2024
APHC010535462008
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
WEDNESDAY, THE NINETEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 147/2008
Between:
1. M/S. KISHORE BOILED RICE MILL, REP BY ITS MANAGING
PARTNER, DEVATHU MUSALA RAO G.N.T. ROAD, ONGOLE.
2. DEVATHU MUSALA RAO, S/O. SRI. RANGANADHAM
MANAGING PARTNER M/.S KISHORE BOILED RICE MILL,
G.N.T. ROAD, ONGOLE.
...APPELLANT(S)
AND
1. PUVVADA PULLAIAH, DIED PER LRS RR 2 TO 6, S/O. KOTAIAH
BUSINESS R/O. KOTHAPATNAM, ONGOLE.
2. PUVVADA SUJATHA, W/O. LATE PULLAIAH R/O. D.NO.39-4-52,
UPSTAIRS, ING VYSYA BANK, MAIN ROAD, GOPALNAGAR,
ONGOLE, PRAKASAM DIST-523001
3. B SYAMALA, W/O. NAGESH
4. PUVVADA SRINIVASA RAO, S/O. LATE PULLAIAH
5. PUVVADA KOTESWARA RAO, S/O. LATE PULLAIAH
2 VGKRJ
AS 147 of 2008
6. PUVVADA RAVI CHANDRA SEKHAR, S/O. LATE PULLAIAH,
JREP. BY GPA HOLDER PUVVADA SRINIVASA RAO
7. PUVVADA RAMAKRISHNA PRASAD, S/O. LATE PULLAIAH RR-
3 TO 7 ARE R/O. D.NO.39-4-52, UPSTAIRS, ING VYSYA BANK,
MAIN ROAD, GOPALNAGAR, ONGOLE, PRAKASAM DIST.-
523001 RR- 2 TO 7 ARE BROUGHT ON RECORD AS LRS OF
DECEASED R-1 AS PER HON'BLE C.O. DT.21/2/2013 IN ASMP-
465/2012
...RESPONDENT(S):
Counsel for the Appellant(S):
Sri M R S SRINIVAS
Counsel for the Respondent(S):
Sri E V V S RAVI KUMAR
This Court made the following:
JUDGMENT:
-
This Appeal, under Section 96 of the Code of Civil Procedure
[for short 'the C.P.C.'], is filed by the Appellants/defendants
challenging the Decree and Judgment, dated 28.01.2008, in O.S.
No.262 of 2002 passed by the learned Additional Senior Civil Judge,
Ongole [for short 'the trial Court']. The first Respondent herein is
the plaintiff in the said Suit.
3 VGKRJ
AS 147 of 2008
Sole respondent/ plaintiff died during the pendency of the
appeal, his legal representatives are brought on record as
respondent Nos.2 to 7.
2. The respondent/plaintiff filed a Suit for recovery of a sum of
Rs.7,32,394/- being the principal and interest due on a promissory
note dated 05.05.1996executed by the second defendant in favour
of plaintiff for Rs.3,50,000/- and for costs.
3. Both the parties in the Appeal will be referred to as they are
arrayed before the trial Court.
4. The brief averments of the plaint, in O.S. No.262 of 2002, are
as under:
The first defendant is a firm doing business in boiled rice mill
situated at Guntur Road, Ongole, second defendant is the managing
partner of the first defendant. The second defendant, being the
managing partner of the first defendant, borrowed an amount of
Rs.3,50,000/- from the plaintiff on 05.05.1996for business purpose
and executed a promissory note on the same day in favour of
plaintiff agreeing to repay the same with interest at 18% per annum.
On demand, the second defendant as a managing partner of the
4 VGKRJ
AS 147 of 2008
first defendant firm paid an amount of Rs.100/- on 04.05.1999 and
endorsed the same on the back of promissory note with his own
hand writing. The plaintiff came to know that the defendants are
diverting the funds for other purposes and thus avoiding to pay the
amount to the plaintiff. Inspite of repeated demands made by the
plaintiff, defendants did not choose to pay any amount and have
been postponing the same on one pretext or other. Hence, the
plaintiff is constrained to file the suit.
5. The defendants filed a written statement by denying all the
averments mentioned in the plaint and further contended as under: -
The wife of second defendant i.e., Kusuma Kumari having 3
elder brothers and 1 elder sister and all of them constituted a Hindu
joint family, the plaintiff is a junior paternal uncle of the said Kusuma
Kumari. The wife of second defendant along with her sister filed a
suit for partition. Her brothers and the plaintiff forced her and the
second defendant to withdraw the suit, but they refused to do so, as
such they developed grudge and fabricated a pronote and filed this
5 VGKRJ
AS 147 of 2008
false case with a view to bound the second defendant and his wife
towards them.
6. Based on the above pleadings, the trial Court framed the
following issues:
(i) Whether the second defendant borrowed
Rs.3,50,000/- and executed suit promissory note on
05.05.1996?
(ii) Whether the payments shown in the promissory note
are made by the second defendant and whether the
suit claim is in time?
(iii) To what relief?
7. During the course of trial in the trial Court, on behalf of the
Plaintiff, PW1 to PW4 were examined and Ex.A1 and Ex.A2 and
Ex.X1 to Ex.X7 were marked. On behalf of the Defendants DW1 to
DW3 were examined and Ex.C1 was marked.
8. After completion of the trial and on hearing the arguments of
both sides, the trial Court decreed the suit with costs vide its
judgment, dated 28.01.2008, against which the present appeal is
preferred by the appellants/defendants in the Suit questioning the
Decree and Judgment passed by the trial Court.
6 VGKRJ
AS 147 of 2008
9. Heard Sri M.R.S.Srinivas, learned counsel for
appellants/defendants and Ms.Gnanusha, learned counsel, on
behalf of Sri E.V.V.S.Ravi Kumar, learned counsel for
respondents/plaintiffs.
10. Learned counsel for the appellants would contend that the suit
pronote is created on account of the disputes between the wife of
second defendant and plaintiff, who is none other than her junior
paternal uncle. He would further contend that the Court below erred
that the suit Ex.A1 pronote is the genuine by relying upon the
opinion of the hand writing expert. He would further contend that
Ex.A1 pronote and Ex.A2 part payment endorsement on Ex.A1
pronote were created by the plaintiff. He would further contend that
Ex.A2 part payment endorsement is created by the plaintiff with the
help of attestor to save the limitation in filing the suit.
11. Per contra, the learned counsel for respondents would
contend that on appreciation of the entire evidence on record, the
trial Court rightly decreed the suit and there is no need to interfere
with the finding given by the learned trial Judge.
7 VGKRJ
AS 147 of 2008
12. Having regard to the pleadings in the suit, the findings
recorded by the trial Court and in the light of rival contentions and
submissions made on either side before this Court, the following
points would arise for determination:
1. Whether the trial Court is justified in holding that
the plaintiff proved the execution of Ex.A1
pronote on receipt of consideration of amount by
the defendants and also Ex.A2 part payment
endorsement?
2. Whether the decree and judgment passed by the
trial court needs any interference? If so, to what
extent?
13. Point Nos.1and 2:
The case of the plaintiff is that the first defendant is a firm
doing business in boiled rice mill situated at Ongole and second
defendant is the managing partner of the first defendant, for
business purpose borrowed an amount of Rs.3,50,000/- from the
plaintiff by executing a suit pronote on 05.05.1996 at Ongole in
favour of the plaintiff and promised to repay the same with interest.
The plaintiff further pleaded that on demand, the second defendant,
8 VGKRJ
AS 147 of 2008
as a managing partner of the first defendant firm, paid an amount of
Rs.100/- on 04.05.1999 and endorsed the same on the back of the
promissory note with his own hand writing and subsequently the
defendants failed to discharge the suit debt and that the plaintiff is
constrained to file the suit.
14. The case of the appellants is that Ex.A1 is a rank forged and
Ex.A2 part payment endorsement is also fabricated one and not
genuine. Since there is a plea of forgery, denial of execution of
Ex.A1 pronote and Ex.A2 part payment endorsement, the burden is
on the plaintiff to prove the execution of Ex.A1 pronote and passing
of consideration under Ex.A1 pronote and part payment under
Ex.A2 part payment endorsement.
15. In order to prove the case of the plaintiff, the plaintiff himself
was examined as PW1. He reiterated his stand as per his respective
pleadings. He testified that the second defendant, representing the
first defendant firm, borrowed Rs.3,50,000/- on 05.05.1996 and
executed Ex.A1 pronote and subsequently on demand, the second
defendant on behalf of first defendant paid part payment of Rs.100/-
on 04.05.1999 and also made an endorsement under Ex.A2 to that
9 VGKRJ
AS 147 of 2008
effect. In cross examination when elicited PW1 fairly admitted about
the pendency of the suit for partition and also filing of another suit
against the son of second defendant. PW1 admits in his evidence in
cross examination that he filed a suit in O.S.No.169 of 2004 on the
file of Principal Senior Civil Judge's court, Ongole against one
Kishore Kumar and the same was decreed and the said Kishore
Kumar is the son of the second defendant and he further admits the
wife of the second defendant Kusuma Kumari along with her sister
Padmavathi filed a suit for partition of their joint family properties in
O.S.No.95 of 1994 against their brothers and the said suit is still
pending in District Court. It was suggested to PW1 in cross
examination by the learned counsel for defendants that Ex.A1 and
Ex.A2 are forged documents, the said suggestion was denied by
PW1.
16. It is trite beyond the pale controversy that the burden rests on
the plaintiff's shoulders to prove the claim satisfactorily. Where both
the parties have chosen to advance their pleadings and adduce
evidence, the concept of burden of proof looses its paramount
significance. The totality of inputs will have to be reckoned by any
10 VGKRJ
AS 147 of 2008
prudent mind to decide whether the claim has been established and
the plaintiff is entitled for decree as prayed for.
17. As seen from the record the plaintiff in order to prove his case
examined the first attestor in the suit pronote as PW2 and second
attestor in the suit pronote as PW3. PW2 is also sole attestor in
Ex.A2 part payment endorsement. The scribe of the suit pronote
died and the son of the scribe of the suit pronote is examined as
PW4 to prove the signature on Ex.A1 pronote belongs to the scribe
of Ex.A1 pronote. PW2 and PW3 deposed in their evidence about
the borrowing of the amount of Rs.3,50,000/- by the second
defendant, representing the first defendant, on 05.05.1996 and also
execution of Ex.A1 pronote in favour of the plaintiff. They have
clearly stated in their evidence that they are the attestors in the
Ex.A1 pronote. Furthermore, PW2 deposed in his evidence about
the part payment of Rs.100/- made by the defendants under Ex.A2
endorsement and he is also the sole attestor to Ex.A2 part payment
endorsement. It was suggested to PW2 in cross examination by the
learned counsel for defendants that the present suit is filed by the
plaintiff only due to the family disputes in between both of them. The
11 VGKRJ
AS 147 of 2008
said suggestion is denied by PW2. It was suggested to PW2 by the
learned counsel for defendants that the second defendant is the
husband of his sister. The said suggestion is admitted by PW2. He
also further admits that the plaintiff and his father are brothers. The
above admissions clearly go to show that PW2 is a common relative
to the both the parties to the suit. In cross examination to PW3 by
the learned counsel for defendants, no enmity was attributed to
PW3 to depose falsehood against the defendants. It was simply
suggested to PW3 in cross examination by the learned counsel for
defendants that he colluded with the plaintiff and they created the
pronote. The said suggestion was denied by PW3. In cross
examination of PW2 and PW3 by the learned counsel for
defendants, their evidence is not shattered on the material aspects
of the case. Furthermore, the evidence of PW4 goes to show that
the scribe is his father and he knows the writing of his father and he
well acquainted with the hand writing of his father.
18. Apart from the above evidence of PW1 to PW4, the plaintiff
also relied on the evidence of DW2, who is hand writing expert, who
examined the Ex.A1 promissory note and Ex.A2 part payment
12 VGKRJ
AS 147 of 2008
endorsement. As per his evidence he has been working as Assistant
Director in Andhra Pradesh Forensic Science Laboratory,
Hyderabad and he is having more than 20 years' experience in the
field of document examination and he further deposed that their
department has received a requisition from the Court of Additional
Senior Civil Judge, Ongole along with certain documents for
examination and opinion and the same were entrusted to him for
examination and opinion. He further deposed that the disputed
signatures in pronote dated 05.05.1996 and endorsement dated
04.05.1999 marked by the Court as Ex.A1 and Ex.A2. As per his
evidence he marked the disputed signatures in the above exhibits
as Q6 to Q8 and the standard signatures purported to be of second
defendant in a Vakalat as S-25 and in the written statement as S-26
to S-29 and on a sheet of paper as S-30 to S-39. He further
deposed that after careful examination, the question and standard
signatures agree in all the writing characteristics. He further
deposed that as per his opinion the person who wrote the red
enclosed signatures marked S-1 to S-39 also wrote the red
enclosed signatures marked Q-6 to Q-8. No doubt, the opinion of
hand writing expert is not a basis to come to conclusion that Ex.A1
13 VGKRJ
AS 147 of 2008
and Ex.A2 are genuine. As stated supra, the evidence of PW1 to
PW3 clearly proves about the execution of Ex.A1 pronote and also
part payment endorsement under Ex.A2. The evidence of DW2 also
corroborates the evidence of PW1 to PW3. The evidence of PW1 to
PW3 is well corroborated by the evidence of DW2, who is a hand
writing expert in Andhra Pradesh Forensic Science Laboratory. It is
not the case of the defendants that they are having enmity with DW2
and that he deposed falsehood against them.
19. The second defendant reiterated his defense in his chief
examination affidavit as DW1. In cross examination, he admits that
on earlier occasion, the plaintiff filed O.S.No.118 of 2001 on the file
of Senior Civil Judge's Court, Ongole and in that suit his defense
was forgery and on full-fledged trial the said suit was decreed in
favour of the plaintiff and they preferred an appeal against the said
decree and the same was dismissed by the District Court and
Execution Petition was also filed against the decree passed in the
said suit. He further admits that one Devathu Srinivasulu filed
another pronote suit against him and his defense in the said suit is
he discharged the said debt and he also admits that one Bachala
14 VGKRJ
AS 147 of 2008
Balaiah filed another money suit against him and the same was
decreed on which he preferred an appeal. The above admissions of
DW1 clearly go to show that he is in the habit of borrowing money
and execution of pronotes and taking a plea of forgery in all the suits.
20. Another witness of defendants i.e., DW3 deposed in his
evidence that he is working as Income Tax Inspector. Ex.X1 to
Ex.X7 were marked through DW3. In cross examination he admits
that in Ex.X2 and Ex.X6, the plaintiff is one of the creditor and
nature of the loan was not mentioned in Ex.X2 and Ex.X6. He
further admits Ex.X2 and Ex.X6 are the self-statement of the first
defendant and no reference was made about the day book and
ledger in Ex.X2 and Ex.X6. He also further admits in Ex.X2 there is
no specific certificate that the ledger folio numbers which were given
for comparison with original. Another important admission made by
DW3 in his evidence is that they will scrutiny the assesse record
basing on the creditors list and there is a possibility of secreting
some creditors without furnishing them in the list. Ex.X7 is the
interest account for the year 1999-2000. In the said Ex.X7 the
15 VGKRJ
AS 147 of 2008
second defendant signed as a managing partner of the first
defendant firm. Here the suit transaction is relating to the year 1999.
21. The learned counsel for respondents placed a reliance of High
Court of Bombay, (Nagapur Division Bench) in Prakash
Madhukararao Desai Vs. Dattatraya Sheshrao Desai 1 . In that
decision, it was held as follows:
"....a transaction not reflected in the books of accounts and/or
Income Tax returns of the holder of the cheque in due course can
be permitted to be enforced by instituting proceedings under
Section 138 of the Act of 1881 in view of the presumption under
Section 139 of the Act of 1881 that such cheque was issued by the
drawer for the discharge of any debt or other liability, execution of
the cheque being admitted. Violation of Sections 269-SS and/or
Section 271-AAD of the Act of 1961 would not render the
transaction unenforceable under Section 138 of the Act of 1881".
In the case on hand, though the Income Tax returns were
marked as Ex.X1 to Ex.X7, the Income Tax Inspector DW3 clearly
admits in his evidence in cross examination that there is a possibility
of secreting some creditors without furnishing them in the list by the
debtors. He further admits that they will scrutiny the assesse records
12023(5) Mhlj 709
16 VGKRJ
AS 147 of 2008
basing on the creditors list and there is a possibility of screening
some creditors by the debtors.
In a civil suit, rival contentions and rival evidence will have to
be considered, assessed, evaluated and weighed to conclude
whether the burden on the plaintiff has been discharged.
22. In the case of M.Narsinga Rao Vs. State of Andhra
Pradesh2, the Apex Court held as follows:
The word "proof" need be understood in the sense in which it is
defined in the Evidence Act because proof depends upon the
admissibility of evidence. A fact is said to be proved when, after
considering the matters before it, the court either believes it to exist,
or considers its existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the
supposition that it exists. This is the definition given for the word
"proved" in the Evidence Act. What is required is production of such
materials on which the court can reasonably act to reach the
supposition that a fact exists. Proof of the fact depends upon the
degree of probability of its having existed. The standard required for
reaching the supposition is that of a prudent man acting in any
important matter concerning him. Fletcher Moulton L.J.
in Hawkins v. Powells Tillery Steam Coal Co. Ltd. [(1911) 1 KB 988 :
1911 WN 53] observed like this:
2(2001) 1 SCC 691
17 VGKRJ
AS 147 of 2008
"Proof does not mean proof to rigid mathematical
demonstration, because that is impossible; it must mean
such evidence as would induce a reasonable man to come
to a particular conclusion."
The said observation has stood the test of time and can now be
followed as the standard of proof. In reaching the conclusion the
court can use the process of inferences to be drawn from facts
produced or proved. Such inferences are akin to presumptions in
law. Law gives absolute discretion to the court to presume the
existence of any fact which it thinks likely to have happened. In that
process the court may have regard to common course of natural
events, human conduct, public or private business vis-à-vis the facts
of the particular case. The discretion is clearly envisaged in Section
114 of the Evidence Act.
23. In the case of R.Puthunainar Alhithan and others vs.
P.H.Pandian and others3, the Apex Court held that an inference
from the proved facts must be so probable that if the Court believes,
from the proved facts, that the facts do exist, it must be held that the
fact has been proved. The inference of proof of that fact could be
drawn from the given objective facts, direct or circumstantial.
1996 (3) SCC 624
18 VGKRJ
AS 147 of 2008
24. In the case of Pottem Subbarayudu and another vs.
Kothapalli Gangulu Naidu and others4, the composite High Court
of Andhra Pradesh held as follows:
There can be no straightjacket formula for the appreciation of oral
evidence of the witnesses. The credibility of the witness is the
paramount consideration for the Court. After passing the three legal
tests viz., relevancy, admissibility, and competence of the witness,
while considering the credibility of the witness, the Court has to
consider various parameters so as to appreciate the oral evidence on
the point by testing the same on the touch stone of two important
yardsticks viz., the probabilities and surrounding circumstances
among various other parameters. Even when no rebuttal is adduced
by the adversary the ocular testimony of the witnesses examined on
the side of the party on whom the burden lies, cannot implicitly be
relied upon without testing the same with reference to the
probabilities and surrounding circumstances. The judgments of the
Apex Court in Govinda v. Champa Bai, AIR 1965 SC 354
and Chaturbhuj Pande v. Collector, Raigarh, AIR 1969 SC 255,
would lend support to my above view. Let us therefore see the
voluminous oral evidence: on the side of the defendants and that of
P.Ws. 1 and 2 on the side of the plaintiffs: how far and to what extent
stands the judicial scrutiny.
The trial Court accepted the evidence of PW1 to PW3 and
DW2 regarding the execution of Ex.A1 pronote and also part
2000 (5) ALT 759
19 VGKRJ
AS 147 of 2008
payment endorsement under Ex.A2, I am of the considered view
that undoubtedly, when a question of fact the decision depends
upon the appreciation of oral evidence in the case. The appellate
Court has to bear in mind that it does not have the advantage that
the trial Judge had in having the witness before him and observing
how they deposed in Court. A finding that a witness is telling the
truth is of the greatest value when made by a judge who saw all the
witnesses or atleast the important ones on each side. The legal
position is thus clear that ordinarily weight should be attached to the
trial judge's opinion regarding the credibility of witness, and the
appellate Court should not lightly brush aside the opinion of the trial
Judge about the opinion of credibility of witness.
25. The contention of the second defendant is that he did not
made any part payment and he did not execute the suit pronote and
Ex.A2 part payment endorsement is created to save the limitation.
Section 18 of the New Limitation Act (corresponding to Section 19 of
old Act) deals with the effect of acknowledgment in writing, the
relevant portion of which read thus:
Effect of acknowledgement in writing:
20 VGKRJ
AS 147 of 2008
1. When before the expiration of the prescribed period for a
suit or application in respect of any property or right, an
acknowledgment of liability in respect of such property or
right has been made in writing signed by the party against
whom such property or right is claimed or by any person
through whom he derives his title or liability, afresh period of
limitation shall be completed from the time when the
acknowledgment was so signed.
26. Thus, it is clear as per Section 18 of Limitation Act, the
limitation of years starts from the date of signing the
acknowledgment, a fresh period of limitation shall be completed
from the time when the acknowledgment was so signed. As the part
payment amount was paid to be made within 3 years, it is not open
to the defendants to contend that the suit claim is not within the
limitation period, it is subject to establishing part payment
endorsement. As stated supra, the evidence of PW1 coupled with
the evidence of PW2 clearly goes to show about the part payment of
Rs.100/- made by the second defendant under Ex.A2 part payment
endorsement. To rebut the said evidence, the defendants did not
21 VGKRJ
AS 147 of 2008
choose to adduce any evidence to show that Ex.A1 pronote and
Ex.A2 part payment endorsement are forged documents. Here, in
the case on hand, Ex.A1 suit pronote is dated 05.05.1996 and
Ex.A2 part payment endorsement is dated 04.05.1999. The learned
counsel for respondents would contend that since in view of the
summer vacation in the month of May 2002, the suit is filed on the
very re-opening day of the Civil Courts i.e., on 01.06.2002 and that
the suit is filed within a period of limitation. The decree passed by
the trial Court clearly goes to show that the suit is filed by the
plaintiff on 01.06.2002, for the aforesaid reasons, the suit is filed
within a period of limitation.
27. The learned counsel for appellants relied on the judgment in
Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel
and others5. In that case, the High Court of Gujarat held as follows:
"118. Presumption as to negotiable instruments.- Until the contrary
is proved, the following presumptions shall be made:--
(a) of consideration--that every negotiable instrument was made or
drawn for consideration, and that every such instrument, when it
has been accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for consideration;
2022 SCC online Guj 1643
22 VGKRJ
AS 147 of 2008
(b) as to date--that every negotiable instrument bearing a date was
made or drawn on such date;
(c) as to time of acceptance--that every accepted bill of exchange was
accepted within a reasonable time after its date and before its
maturity;
(d) as to time of transfer--that every transfer of a negotiable instrument
was made before its maturity;
(e) as to order of indorsements--that the indorsements appearing upon
a negotiable instrument were made in the order in which they
appear thereon;
(f) as to stamps-- that a lost promissory note, bill of exchange or
cheque was duly stamped;
(g) that holder is a holder in due course--that the holder of a
negotiable instrument is a holder in due course;
Provided that, where the instrument has been obtained from its
lawful owner, or from any person in lawful custody thereof, by
means of an offence or fraud, or has been obtained from the maker
or acceptor thereof by means of an offence of fraud, or for unlawful
consideration, the burden of proving that the holder is a holder in
due course lies upon him."
28. The learned counsel for appellants relied on a decision of
Apex Court in Rangappa vs. Sri Mohan6, in that decision it was
held as follows:
"17. Under Section 118(a) of the Negotiable Instruments Act, the
court is obliged to presume, until the contrary is proved, that the
promissory note was made for consideration. It is also a settled
6(2010) 11 SCC 441
23 VGKRJ
AS 147 of 2008
position that the initial burden in this regard lies on the defendant 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 either by direct evidence or by
preponderance of probabilities showing that the existence of
consideration was improbable, doubtful or illegal."
29. The learned counsel for appellants relied on a decision of
Apex Court in Roop Kumar vs. Mohan Thedani7, in that decision it
was held as follows:
Section 91 relates to evidence of terms of contract, grants and other
disposition of properties reduced to form of document. This section
merely forbids proving the contents of a writing otherwise than by
writing itself; it is covered by the ordinary rule of law of evidence,
applicable not merely to solemn writings of the sort named but to
others known some times as the "best evidence rule". It is in reality
declaring a doctrine of the substantive law, namely, in the case of a
written contract, that of all proceedings and contemporaneous oral
expressions of the thing are merged in the writing or displaced by it.
In the case on hand, the material on record clearly proves that
the Ex.A1 pronote is supported by consideration and to discharge
his liability the second defendant represented by the first defendant
made part payment of Rs.100/- under Ex.A2 endorsement and the
7AIR 2003 SC 2418
24 VGKRJ
AS 147 of 2008
suit is also filed within the period of limitation. To rebut the said
evidence, the defendants did not adduce any evidence to prove that
the suit pronote is a forged document and not supported by
consideration, the defendants also failed to prove that Ex.A2 part
payment endorsement is created by the plaintiff to save the
limitation.
30. The learned counsel for appellants placed another reliance in
the case of Rohitbhai Jivanlal Patel vs. State of Gujarat and
another8, the facts in the cited decision relates to the Section 138 of
Negotiable Instruments Act filed in a criminal case before the
learned Magistrate, whereas the subject matter of the present case
is civil suit filed by the plaintiff for recovery of amount under suit
pronote.
31. In civil cases, the preponderance of probability constitutes a
sufficient ground for decision if the facts and circumstances are such
that no reasonable man would draw a particular inference from them
or if the decree of possibility in the case is such that as to include
any hypothesis besides the one to be proved then the party who
8(2019) 18 SCC 106
25 VGKRJ
AS 147 of 2008
relies on a particular theory cannot be said to have discharged the
onus of proof of establishing that theory. But, if the evidence is
strongly prepondering in favour of any of the two theories set up, the
Court is entitled to act on it.
32. As stated supra, the plaintiff discharged his burden to prove
Ex.A1 pronote and also part payment endorsement under Ex.A2.
The defendants failed to prove their contentions regarding non
payment of consideration by leading cogent evidence, the
defendants were not successful in showing the improbability of the
consideration. Therefore, the defense taken by the defendants is not
sustainable under law.
33. After careful consideration the trial Court adequately
appreciated the evidence and there is no reason for this Court to
arrive at different conclusion than the one arrived at by the trial
Court. I am of the considered view that the findings arrived at by the
trial Court are correct and no justifiable reasons have been shown
by the appellants/ defendants for arriving at different conclusions.
Therefore, the decree and judgment passed by the trial Court is
perfectly sustainable under law.
26 VGKRJ
AS 147 of 2008
34. Accordingly the point Nos.1 and 2 are answered in favour of
the plaintiff by holding that the trial Court is justified in holding that
the second defendant representing the first defendant executed the
suit pronote and also received the amount under Ex.A1 pronote and
also made part payment under Ex.A2 endorsement. In view of the
aforesaid reasons the view taken by the trial Court does not call for
any interference and this appeal is liable to be dismissed. The
impugned decree and judgment passed by the trial Court is holds
good.
35. In the result, the Appeal Suit is dismissed without costs, by
confirming the decree and Judgment dated 28.01.2008, in
O.S.No.262 of 2002 passed by the learned Additional Senior Civil
Judge, Ongole.
As a sequel, miscellaneous petitions, if any, pending in the
Appeal shall stand closed.
_________________________
V.GOPALA KRISHNA RAO, J
Date: 19.06.2024
sj
27 VGKRJ
AS 147 of 2008
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.147 OF 2008
Date: 19.06.2024
sj
