Andhra Pradesh High Court - Amravati
N.Manohar Chowdary vs G.Govardhan on 28 October, 2024
APHC010273042003
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
MONDAY ,THE TWENTY EIGHTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 3593/2003
Between:
N.manohar Chowdary ...APPELLANT
AND
G Govardhan ...RESPONDENT
Counsel for the Appellant:
1. P HEMACHANDRA
Counsel for the Respondent:
1. B ADINARAYANA RAO
The Court made the following:
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.3593 OF 2003
JUDGMENT:
-
This Appeal, under Section 96 of the Code of Civil Procedure [for short
„the C.P.C.‟], is filed by the Appellant/defendant challenging the Decree and
Judgment, dated 19.08.2003, in O.S. No.72 of 2000 passed by the learned
Additional Senior Civil Judge, Tirupati [for short „the trial Court‟]. The
Respondent herein is the plaintiff in the said Suit.
2. The respondent/plaintiff filed the suit for recovery of a sum of
Rs.1,49,400/- being the principal and interest due on a promissory note dated
25.06.1997 executed by the defendant in favour of plaintiff for Rs.90,000/- 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.72 of 2000, are as under:
The defendant borrowed an amount of Rs.90,000/- from the plaintiff on
25.06.1997 for his business necessities and executed a promissory note in
favour of the plaintiff with a promise to repay the same with interest at 24%
per annum and subsequently in spite of repeated demands made by the
plaintiff, the defendant has not paid the amount. Despite of issuance of legal
notice, dated 27.01.2000, the defendant did not choose to issue any reply and
did not pay any amount and that the plaintiff is constrained to file the suit.
5. The defendant filed a written statement by denying all the averments
mentioned in the plaint and further contended as under: -
The defendant and one Mori Suresh Babu jointly did a business in the
Cine field since 1991. During the said course of business, the defendant
signed on four blank promotes and four cheques and gave them to the said
Suresh Babu, for security in the year 1995. Later, the said business was
closed in the year 1996 due to heavy loss. Then the defendant settled the
accounts of the said Suresh Babu and demanded for return of the blank
promotes and cheques, but he informed that as they were misplaced and
promised him that he will be returned them whenever he traced out. Believing
the said representation, the defendant kept quite till 1997. Later, he received
legal notice on 29.05.1997 U/Sec.138 of the Negotiable Instruments Act for
dishonor of cheques. Immediately, he rushed to the said Suresh Babu on
10.06.1997 and questioned him before the well-wishers and mediators viz.,
the film Actor Sri Mohan Babu and others and asked to return the pronote and
cheques, but the said Suresh said that they were kept with the plaintiff, who is
a close associate to him. Immediately, the defendant and others went to
Tirupati to meet the plaintiff, but he was absent in his house. The said Suresh
Babu colluded with the plaintiff and one K. Subramanyam Yadav of Puttur and
fabricated the suit pronote. The defendant is disputing the genuineness of the
revenue stamps affixed on the suit pronote, as they were released in the year
1995 and not as in the year 1996 as alleged in the plaint. He contends that he
never received any such notice as alleged in the plaint. Hence, he prayed to
dismiss the suit with costs.
6. Based on the above pleadings, the trial Court framed the following
issues:
(i) Whether the suit promissory note is true?
(ii) To what relief?
7. During the course of trial in the trial Court, on behalf of the Plaintiff,
PW1 to PW3 were examined and Ex.A1 to Ex.A3 were marked. On behalf of
the Defendant, DW1 was examined, but no documents were marked.
8. After completion of the trial and hearing the arguments of both sides,
the trial Court decreed the suit with costs vide its judgment, dated 19.08.2003,
against which the present appeal is preferred by the appellant/defendant in
the suit questioning the Decree and Judgment passed by the trial Court.
9. Heard Sri N. Manikanta, learned counsel, representing Sri P.
Hemachandra, learned counsel for appellant and M/s.B. Bindu, learned
counsel, representing Sri B. Adinarayana Rao, learned counsel for the
respondent. .
10. Now the points for determination are:
1. Whether the trial Court is justified in holding that the plaintiff
proved the execution of suit pronote and the suit pronote is true,
valid and binding on the defendant?
2. Whether the decree and judgment passed by the trial court
needs any interference?
11. Point No.1 :
Whether the trial Court is justified in holding that the plaintiff
proved the execution of suit pronote and the suit pronote is true,
valid and binding on the defendant?
The case of the plaintiff is that the defendant borrowed an amount of
Rs.90,000/- on 25.06.1987 for his business necessities and executed a
promissory note by the defendant in favour of the plaintiff with a promise to
repay the same with interest at the rate of 24% per annum and subsequently
in spite of repeated demands made by the plaintiff, despite of issuance of
legal notice, dated 27.01.2000, the defendant did not choose to issue any
reply and also did not pay any amount and that the plaintiff is constrained to
file the suit.
12. The contention of the defendant is that himself and one Mori Suresh
Babu jointly did a business in the Cine field in the year 1995 by purchasing
film boxes and distributing the same and at that time he entrusted four blank
signed promissory notes and four blank signed cheques to one Suresh Babu
for the purpose of security of business to others and subsequently, the said
business was closed. The defendant further pleaded that though he asked the
Suresh Babu to return the blank promissory notes, but he did not give the
same and he replied that those are misplaced. He further pleaded that in the
mediation, Suresh Babu agreed that the blank promissory notes and blank
cheques were kept in the custody of the plaintiff and subsequently he
approached the plaintiff for return of blank promissory notes, despite of return
the promissory notes, the plaintiff filed the suit and he did not receive any
consideration in the suit promissory note, he is not at all signed in the
promissory note, and he had signed in the year 1995 for security of joint
business.
13. Since the defendant is disputing the suit transaction, the initial burden is
lies on the plaintiff to prove the suit transaction. In order to discharge his
burden, the plaintiff examined himself as P.W.1. The evidence of P.W.1 goes
to show about borrowing of amount of Rs.90,000/- and execution of Ex.A.1
promissory note in favour of plaintiff. Ex.A.2 goes to show that the plaintiff
issued a legal notice to the defendant to discharge the promissory note debt,
but the defendant having received the said legal notice under Ex.A.3
acknowledgement, kept quite without issuing any reply. If the defendant did
not borrow any amount from the plaintiff, then what prevent him for issuance
of reply notice to deny the contents in Ex.A.2 legal notice. Though P.W.1 was
cross examined, in cross examination nothing was elicited from P.W.1 to
discredit the testimony of P.W.1.
14. P.W.2, scribe of the promissory note. As per his evidence he is the
scribe of Ex.A.1 promissory note and the defendant having received the
amount under Ex.A.1 and also counted the cash and after verifying the cash,
defendant signed on Ex.A.1, promissory note. Though P.W.2 was cross-
examined, nothing was elicited from him in cross-examination by the learned
counsel for the defendant.
15. P.W.3 is one of the attestors in Ex.A.1 promissory note. His evidence
goes to show that he is the second attestor of the promissory note and in his
presence the entire promissory note transaction was happened and the
defendant having received the entire amount of Rs.90,000/- signed on the
promissory note in the presence of scribe, first attestor, plaintiff and himself.
In cross examination the evidence of P.W.3 is not at all disturbed on the
material aspects of the case.
16. The defendant to prove the defence examined himself as D.W.1 before
the trial Court. He reiterated the contents of written statement in his evidence
affidavit as D.W.1. In cross examination, he clearly admits that the signature
of the first attestor is belongs to Suresh Babu and he does not know the scribe
and second attestor signature. Furthermore, he admits that he did not issue
any notice to Suresh Babu that he has obtained his signature on the blank
promissory note. Furthermore, another admission made by him is that he has
not filed any document to show that he along with Suresh Babu did cine field
business.
17. The plaintiff to discharge his burden relied on the evidence of P.W.2,
scribe and second attestor, P.W.3. The evidence of P.W.1 to P.W.3 is
consistent and cogent with regard to borrowing amount of Rs.90,000/- by the
defendant from the plaintiff and also execution of Ex.A.1, promissory note.
The evidence on record further indicates that despite of receipt of legal notice,
the defendant kept quiet and did not issue any reply notice to deny the
contents in Ex.A.2, legal notice. The defence taken by the defendant in the
written statement is that Suresh Babu obtained his blank signed promissory
notes as a security purpose. There is no evidence on record to show that the
defendant handed over his blank signed promissory note to one Suresh Babu.
As per his own admissions he did not issue any notice to Suresh Babu to
return the blank promissory notes. Another contention taken by the defendant
is that the revenue stamps used on the promissory note are printed in the year
1995 and that it clearly goes to show that it is old promissory notes. As seen
from the material on record, the learned trial Judge sent the promissory note
to the India Security Press, Nashik. They in turn sent a report to the trial Court
that two revenue stamps in question found genuine and those are printed on
27.05.1995 and they were dispatched from Central Stamp Depot on
17.06.1995 for sale to the general public. Here the date of execution of the
promissory note is 25.06.1997. The revenue stamps on the promissory note
were released on 17.06.1995. It is to be noted that nothing prevent the
general public to use the revenue stamps released in the year 1995 to use the
same in the year 1997. In general, those stamps were released from India
Security Press, Nashik on 17.06.1995, in general it is to be used subsequent
to that date only. Furthermore, the defendant to discharge his burden except
examined himself, he did not choose to examine any other independent
witnesses on his behalf to prove the defence taken by him in the written
statement.
18. In a civil case, 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. In the case of R.Puthunainar
Alhithan etc., vs. P.H.Pandian and others1, 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, direct or circumstantial".
19. To prove the passing of consideration from the plaintiff, the plaintiff
made an attempt to examine the scribe of Ex.A1 pronote as PW2 and also
examined one of the attestors in Ex.A1 pronote as PW3. PW2 and PW3
testified about the passing of consideration of Rs.90,000/- from the plaintiff to
the defendant under Ex.A1 pronote. It is not the case of the defendant that he
1996(3) SCC 624
is having enmity with PW2 and PW3, due to that they deposed falsehood
against him. I see no reason to disbelieve the evidence of PW2 and PW3.
20. In the case of Pottem Subbarayudu vs. Kothapalli Gangulu Naidu2,
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 vs. Champa Bai (AIR 1965
SC 354) and Chaturbhuj Pande vs. Collector, Raigarh, would lend
support to my above view".
In the case of Pratap Singh vs. Rajinder Singh and another 3, the
Apex Court held as follows:
"....There is no presumption, either in this country or anywhere else, that
a witness, deposing on oath in the witness box, is untruthful unless he is
shown to be, indubitably, speaking the truth. On the other hand, the
ordinary presumption is that a witness deposing solemnly on oath before
a judicial tribunal is a witness of truth unless the contrary is shown.
11. It is not required by our law of evidence that a witness must be
proved to be a perjurer before his evidence is discarded. It may be
2000(5)ALT 759
1975 AIR (SC) 1045
enough if his evidence appears to be quite improbable or to spring from
such tainted or biased or dubious a source as to be unsafe to be acted
upon without corroboration from evidence other than that of the witness
himself...."
21. In the case on hand, the defendant received a legal notice under Ex.A3.
Ex.A3 acknowledgment supports the same. The defendant, who received
such notice before filing of the suit, did not even choose to send reply denying
the borrowing and execution of Ex.A1 pronote. The defendant has not
explained the reason for not responding the legal notice, this circumstance
goes a long way in showing that the suit debt is true and that the defendant
had chosen to come up with a belated and false theory both about the
borrowing of amount and execution of Ex.A1 pronote.
22. 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 believe the findings
arrived by the trial Court are correct and no justifiable reasons have been
shown by the appellant/defendant for arriving at different conclusion. For the
foregoing reasons, I do not find any illegality in the said decree and judgment
passed by the trial Court and it requires no interference.
23. Point No.2:
Whether the decree and judgment passed by the trial court needs
any interference?
In view of my findings on point No.1, I do not find any illegality in the
decree and judgment passed by the trial Court and the decree and judgment
passed by the trail Court is perfectly sustainable under law and it requires no
interference.
24. In the result, the Appeal Suit is dismissed confirming the decree and
Judgment dated 19.08.2003, in O.S. No.72 of 2000 passed by the learned
Additional Senior Civil Judge, Tirupati. Each party do bear their own costs.
As a sequel, miscellaneous petitions, if any, pending in the Appeals
shall stand closed.
_________________________
V. GOPALA KRISHNA RAO, J
Date: 28.10.2024
PGR
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.3593 OF 2003
Date: 28.10.2024
PGR
