Andhra Pradesh High Court - Amravati
Guthikonda Viswanatham vs Guthikonda Venugopal Naidu on 5 November, 2024
1
APHC010207672008
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
TUESDAY,
DAY, THE FIFTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY
TWENTY-FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
SECOND APPEAL NO: 1116/2008
Between:
Guthikonda Viswanatham ...APPELLANT
AND
Guthikonda Venugopal Naidu ...RESPONDENT
Counsel for the Appellant:
1. C.H. C KRISHNA REDDY
Counsel for the Respondent:
1. T C KRISHNAN
The Court made the following JUDGMENT:
1. This Second Appeal has been filed by the Appellant / Appellant /
Defendant against the Decree and Judgment dated 17.09.2007,, in A.S.No.
A.S.No.82
of 2006 on the file of Principal District Judge, Nellore (for short, 'the 1st
Appellate Court')
') confirming the decree and Judgment dated 15.02.2006,
15.02.2006 in
O.S.No.90 of 2001 on the file of Senior Civil Judge, Gudur (for short, 'the trial
Court').
2. The Respondent/Respondent is the Plaintiff, who filed the suit in
O.S.No.90 of 2001 seeking recovery of Rs.1,63,865/-
Rs. being the principal and
interest from the Defendant based on the promissory note, dt.
dt.05.05.1999
05.05.1999.
3. Referring to the parties as they are initially arrayed in the suit is
expedient to mitigate any potential confusion and better comprehend the case.
4. The factual matrix, necessary and germane for adjudicating the
contentious issues between the parties inter se, may be delineated as follows:
Defendant borrowed Rs.1,00,000/- from Plaintiff on 05.05.1999 for
business purposes, agreeing to repay the amount with interest at
24% per annum, either to Plaintiff or to his order, upon demand. A
promissory note was executed on the same date. Despite repeated
demands for repayment, the Defendant failed to fulfil his obligation.
Consequently, the Plaintiff issued a legal notice dated 01.12.2001,
which the Defendant received. In response, the Defendant sent a
reply on 18.12.2001, containing false allegations.
5. In the written statement, the Defendant refuted the averments in the
plaint, asserting that he never borrowed any amount from the Plaintiff, let
alone Rs.1,00,000/- under the promissory note dated 05.05.1999, which he
described as a blatant forgery. He claimed there were disputes with the
Plaintiff's father-in-law, Vadapalli Nageswara Rao, who allegedly fabricated
the promissory note with the assistance of his associates. The Defendant
asserted that the Plaintiff lacks the financial capacity to lend such a substantial
sum. He emphasized that his reply presented the true facts of the matter,
contending that there is no truth or bona fides in the Plaintiff's claims, and
therefore, the suit should be dismissed with costs.
6. Based on the above pleadings, the trial Court has framed the following
issues:
i. Whether the suit promissory note is a rank forgery?
Ii. Whether the Plaintiff is entitled to suit claim as prayed for?
iii. To what relief?
7. During the trial, PWs.1 to 3 were examined and marked Exs.A.1 to A.4
on behalf of the Plaintiff. Conversely, on behalf of the Defendant, DWs.1 and 2
were examined and marked Ex.X.1.
8. After completing the trial and hearing the arguments of both sides, the
trial Court decreed the suit with costs as prayed for against the Defendant with
subsequent interest at 6% per annum from the date of suit till realization on
the principal amount of Rs.1,00,000/-.
9. Aggrieved by the same, the Defendant filed an Appeal in A.S.No.82 of
2006 on file of the 1st Appellate Court. The 1st Appellate Court, being the final
fact-finding Court, framed the following points for consideration:
i. Whether the Defendant has borrowed money and executed
promissory note as claimed by the Defendant?
ii. Whether the Judgment and decree passed by the learned
Senior Civil Judge is legal and sustainable?
10. The 1st Appellate Court, after scrutinizing oral and documentary
evidence adduced on behalf of both sides, dismissed the Appeal with costs by
its Judgment and Decree, dated 17.09.2007. Assailing the same, the
Defendant preferred the present Second Appeal.
11. Heard Sri. Ch.C.Krishna Reddy, learned Counsel representing the
Appellant / Defendant, and Sri. T.C.Krishnan learned Counsel for the
Respondent / Plaintiff.
12. The learned Counsel for the Appellant/Defendant contends that the
evidence of DW.2, along with the Ex.X.1 report, clearly demonstrates that
Defendant did not execute the Ex.A.1 promissory note. He asserts that there
is no valid basis for disregarding the expert's opinion based solely on
speculation and conjecture. The burden of proving the validity of Ex.A.1 rests
with Plaintiff, who has failed to establish that Defendant executed Ex.A.1. The
Counsel further asserts that all of Plaintiff's witnesses are interested parties,
rendering their testimonies unreliable. The Plaintiff lacks the capacity to lend
the substantial sum of Rs.1,00,000/-. The Defendant, possessing landed
property, had no need to borrow such an amount from the Plaintiff.
13. Per contra, learned Counsel for the Respondent / Plaintiff contends that
both the trial Court and the 1st Appellate Court correctly evaluated the facts of
the case and reached the correct conclusions. The reasons given by both the
Courts do not require any modifications.
14. Based on the Appellant's contentions, the following substantial question
of law is involved in this Second Appeal:
i. Whether the Courts below are justified in observing that
the expert's opinion is of no avail when there is direct
evidence to prove the suit document?
ii. Whether there is any controversy in the judgments of the
Courts below?
15. Before delving into the matter, since the Appeal is filed under Sec.100
of C.P.C., this Court must see the scope of Section 100 of C.P.C.
16. In H.P.Pyarejan V. Dasappa (dead) by L.Rs. and others 1 , the
Hon'ble Supreme Court held that:
Under Section 100 of the Code (as amended in 1976), the
jurisdiction of the High Court to interfere with the judgments of
the Courts below is confined to hearing on substantial questions
of law. Interference with the finding of fact by the High Court is
not warranted if it involves re-appreciation of evidence (see
Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC
713) and Kshitish Chandra Purkait v. Santosh Kumar
Purkait (1997) 5 SCC 438)......
17. Considerations in Section 100 of C.P.C., arise only when there is a
substantial question of law and not mere such questions of law or one based
on facts. However, it has to be borne in mind that in case of misapplication of
law and improper appreciation of evidence on record, particularly the
documentary evidence, it is the bounden duty of the High Court sitting in
2006 (3) ALT 41 (SC)
Second Appeal to consider such questions which are substantial in terms of
law.
18. In the Second Appeal, while exercising jurisdiction under Section 100 of
the C.P.C., this Court must confine itself to the substantial question of law
involved in the Appeal. This Court cannot re-appreciate the evidence and
interfere with the findings of the Courts below, where the Courts below
recorded the findings judicially by appreciating both oral and documentary
evidence. Further, a substantial question of law is the sine qua non for the
exercise of jurisdiction. This Court cannot substitute its own opinion unless the
findings of the Courts below are manifestly perverse and contrary to the
evidence on record.
19. To support his claim regarding the suit transaction, Plaintiff testified as
PW.1. Defendant, in turn, testified as DW.1 and examined DW.2
(B.Varalakshmi). The Plaintiff's case is primarily based on Ex.A.1, a
promissory note dated 05.05.1999, which he asserts was executed by the
Defendant on receipt of consideration of Rs.1,00,000/- on 05.05.1999. Before
filing the suit, the Plaintiff issued a legal notice (Ex.A.2), which the Defendant
received (Ex.A.3), to which he responded with a reply notice (Ex.A.4). The
exchange of these notices before the filing of the suit is undisputed. Defendant
contests Plaintiff's claims, arguing that Plaintiff lacked the financial capacity to
lend such a significant amount and that a dispute exists between Defendant
and Plaintiff's father-in-law, alleging that the promissory note was fabricated.
Given this defence, the burden of proof lies with Plaintiff to establish the
execution of Ex.A.1 by Defendant and payment of the amount. To substantiate
his case, Plaintiff examined PW.2 (G. Venkata Ramanaiah) and PW.3 (V.
Subbarayudu), whose testimonies supported his case. Nothing from the cross-
examination of these witnesses undermined their credibility or the reliability of
their evidence.
20. The trial Court noted that Plaintiff is the junior paternal uncle's son of
Defendant; PWs.2 and 3 are related to both Plaintiff and Defendant. The
Defendant, testifying as DW.1, asserted that a dispute over wage payments
with PW.3 was the root cause for the alleged fabrication of Ex.A.1, the
promissory note. However, the trial Court observed that the Defendant did
not raise this plea in his written statement, nor was it mentioned in Ex.A.4,
the reply notice. Furthermore, DW.1 claimed that V. Nageswara Rao, the
Plaintiff's father-in-law, was responsible for creating the promissory note. The
trial Court observed that by giving a go-bye to the said plea taken in the
written statement, but he introduced a new plea by testifying that PW.3 had
taken away his account books due to non-payment of wages, which he
claimed led to the dispute and the fabrication of Ex.A.1.
21. After a thorough appraisal of the evidence adduced, the trial Court
concluded that there was no reason for PWs.2 and 3 to provide false
testimony against the Defendant. Ex.A.1, the promissory note in question,
was examined by a handwriting expert, who testified as DW.2, with the
findings recorded in Ex.X.1. DW.2's testimony, coupled with the Ex.X.1
report, indicated that Ex.A.1 was indeed forged. In paragraph 16 of its
Judgment, the trial Court referenced various precedents, noting that when
the testimony of direct witnesses is deemed reliable, there is no need to rely
on expert evidence. The trial Court considered whether the direct evidence
adduced by PWs.2 and 3 outweighed that of DW.2, the handwriting expert. It
highlighted that the expert's opinion is inherently subjective and that the
science of handwriting comparison is not infallible. The expert had compared
the disputed signatures on Ex.A.1 with those on another promissory note
allegedly executed by Defendant on 16.07.2000. The Defendant contended
that he was compelled to sign the said promissory note due to PW.3's failure
to return his account books. The trial Court determined that the signature on
the promissory note, dated 16.07.2000, could not be considered
a standard signature for the Defendant, as it was claimed to have been
executed under duress.
22. It is undisputed that Plaintiff's father-in-law initiated the suit against
Defendant in O.S.No.11 of 2000 based on the promissory note dated
16.07.2000 and that this suit resulted in a decree. In evaluating the expert
opinion, the trial Court reasoned that both parties failed to provide the
Defendant's admitted signatures from the relevant period of Ex.A.1. This
omission led to the possibility that the expert could conclude the specimen
signatures did not match those on Ex.A.1 for various reasons. Furthermore,
the trial Court acknowledged that it was established that PW.3 used to scribe
the accounts for the Defendant, so his services might be taken in preparing
Ex.A.1 promissory note. Based on these considerations, the trial Court
determined that the testimony of DW.2, the handwriting expert, did not
outweigh the direct evidence provided by PWs.2 and 3.
23. The trial Court determined that it was difficult to accept the Defendant's
claim that the Plaintiff could not lend such a significant amount. The 1 st
Appellate Court also considered the arguments presented by both parties
and noted crucial aspects of the cross-examination. Specifically, PW.1
testified that PW.3's mother is the daughter of his senior paternal uncle and
that PW.2 is also related to him. Importantly, when the account books were
taken, DW.1 did not file any complaint against PW.3. Furthermore, the 1 st
Appellate Court highlighted that, despite the Defendant denying the validity
of the transaction favouring the father of PW.3, he later acknowledged that
after the decree, he sought to negotiate payment in instalments.
24. The 1st Appellate Court noted that the evidence adduced by DW.1 failed
to demonstrate any existing dispute with the Plaintiff's father-in-law, contrary
to what was claimed in the written statement. The Defendant's assertion that
PW.3 was antagonistic toward him and that the promissory note was
fabricated with PW.3's assistance was not articulated in the written
statement. The Appellate Court further observed that when credible evidence
from witnesses connected to the documents is available, an expert's opinion
loses significance. Notably, the expert did not compare the signatures of the
period of Ex.A.1. Upon going through the judgments from both the trial Court
and the 1st Appellate Court, this Court finds that both Courts provided clear
reasons for favouring the oral evidence of PWs.2 and 3 over the expert
opinion.
25. The Hon'ble Supreme Court in Chennai Jalapathi Reddy V. Baddam
Pratapa Reddy2, held as follows:
10. By now, it is well settled that the Court must be cautious while
evaluating expert evidence, which is a weak type of evidence and not
substantive. It is also settled that it may not be safe to solely rely upon
such evidence, and the Court may seek independent and reliable
corroboration in the facts of a given case. Generally, mere expert
evidence as to a fact is not regarded as conclusive proof of it. In this
respect, reference may be made to a long line of precedents that includes
Ram Chandra and Ram Bharosey v. State of Uttar Pradesh,
MANU/SC/0107/1956, .....................
26. The Constitution Bench of the Hon'ble Supreme Court in Shashi
Kumar Banerjee V. Subodh Kumar Banerjee3, observed that:
The evidence of a handwriting expert can rarely be given precedence over
substantive evidence. In the said case, the Court chose to disregard the
handwriting expert's testimony as to the disputed signature of the testator
of a Will, finding such evidence inconclusive. The Court instead relied on
the clear testimony of the two attesting witnesses as well as the
circumstances surrounding the execution of the Will.
27. In light of the observations made in the decisions mentioned above, this
Court concludes that expert evidence is inherently weak and lacks
substantive value. It is well-established that such evidence should not be
relied upon as definitive proof, as mere expert testimony regarding a fact is
not considered conclusive. Moreover, this Court asserts that signatures
obtained after the filing of the suit cannot serve as a valid basis for
MANU/SC/1165/2019
MANU/SC/0278/1963
comparison, raising serious questions about the reliability of the expert's
report. The trial and 1st Appellate Court provided a clear rationale for
rejecting the expert testimony.
28. Upon examination of the entire deposition of the witnesses as
mentioned above, this Court arrives at the conclusion that the Defendant has
failed to present satisfactory and credible evidence or circumstances to
contradict the testimonies of PWs.1 to 3 regarding the execution of the
promissory note by the Defendant and the passing of consideration. The
version provided by PWs.1 to 3 exhibits a remarkable consistency in
affirming the execution of the promissory note in conjunction with the receipt
of the consideration amount. Despite the extensive cross-examination to
which PWs.1 to 3 were subjected, no substantial discrepancies were
unearthed to undermine their credibility. The Plaintiff and his witnesses
possess no motive to fabricate the suit promissory note; similarly, PWs.2 and
3 have no compelling reason to testify falsely against the Defendant's
interests, as they would derive no benefit from endorsing the Plaintiff's claim
unless there exists a kernel of truth within it. The evidence adduced by the
Plaintiff stands, by any measure, adequate to substantiate the veracity,
legitimacy, and binding nature of the suit promissory note denoted as Ex.A.1.
It is well-established that rebuttal may be proffered through direct evidence
or by establishing a preponderance of probabilities. In this instance,
however, the Defendant has not successfully rebutted the presumption, not
even by a preponderance of probabilities.
29. The Defendant's version does not effectively rebut the presumption
established under Section 118 of N.I.Act. In light of the defence presented
and the evidence submitted, the trial Court and the 1st Appellate Court
observed that the Defendant failed to discharge the initial burden of proof to
demonstrate the non-existence of consideration. Moreover, no other
evidence refutes the presumption provided under Section 118 of the N. I Act.
30. Thus, on an overall consideration of the facts and evidence in
juxtaposition, an inevitable and safe conclusion can be reached that the
plaintiffs discharged the legal burden as well and, therefore, it can safely be
held that the suit promissory note is true, valid and binding and is supported
by consideration.
31. The Hon'ble Supreme Court, in several cases, has held that the
exercise of powers under Section 100 of C.P.C., can interfere with the
findings of fact only if the same is shown to be perverse and based on no
evidence. Some of these judgments are Hajazat Hussain V. Abdul Majeed
& others4, Union of India V. Ibrahim Uddin5, and Vishwanath Agrawal V.
Sarla Vishwanath Agrawal6.
32. The findings of the trial Court and the 1st Appellate Court, which affirm
that Plaintiff has successfully established the execution of the promissory
note by Defendant after receiving the consideration amount, are neither
perverse nor a result of misinterpretation of documents or misreading of
evidence. After careful reading of the material on record, this Court finds that
the trial Court and the 1st Appellate Court concurrently decreed the Plaintiff's
suit by recording all the findings of facts against Defendant enumerated
above, and the findings were neither against the pleadings nor evidence nor
against any provisions of law. This Court considers that the conclusions of
the trial Court and the 1st Appellate Court are not subject to interference
under Section 100 of C.P.C. There is no question of law, let alone the
substantial questions of law, involved in this Second Appeal, and therefore,
the Second Appeal is liable to be dismissed.
33. Accordingly, the present second Appeal sans merit and is hereby
dismissed without costs for the reasons indicated above. Consequently,
2011 (7) SCC 189
2012 (8) SCC 148
2012 (7) SCC 288
the Judgment dated 17.09.2007 passed by the learned Principal District
Judge, Nellore, in A.S.No.82 of 2006, is hereby affirmed.
Miscellaneous applications pending, if any, in this Appeal shall stand
closed.
_____________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 05.11.2024
SAK
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
SECOND APPEAL NO.1116 OF 2008
Date: 05.11.2024
SAK
