Madras High Court
V.Kannan vs G.Ramesh on 10 December, 2021
S.A.No.104 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 10.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.104 of 2021
V.Kannan, S/o.Veersamy,
No.2, Saraswathi nagar,
Periyaganangkuppam,
Cuddalore TK, Cuddalore District,
Pincode 607001 ... Appellant
.Vs.
G.Ramesh,
S/o.Govindaraj,
No.62-B, Ovvaiyar Street,
Kamaraj Nagar, Manjakuppam,
Alpet, Cuddalore District,
Pincode 607 001 ... Respondent
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code against the Decree and Judgment dated 26.02.2020 passed
A.S.No.28 of 2017 on the file of I Additional District and Session Judge,
Cuddalore as against the Decree and Judgment passed in O.S.No.72 of
2016 dated 07.03.2017 by the learned Principal Subordinate Judge,
Cuddalore.
For Appellants : Mr.K.S.Jayaganeshan
for Mr.S.Muralikrishnan
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S.A.No.104 of 2021
JUDGMENT
The Second Appeal is filed challenging the Judgment and Decree
dated 26.02.2020 passed A.S.No.28 of 2017 by the learned I Additional
District and Session Judge, Cuddalore, confirming the Decree and
Judgment passed in O.S.No.72 of 2016 dated 07.03.2017 by the learned
Principal Subordinate Judge, Cuddalore.
2.Respondent filed the suit for recovery of sum of Rs.1,35,667/-
from the Appellant with the interest at the rate of 12% per annum from
the date of Plaint till the date of Decree and thereafter at the rate of 6%
per annum till the date of realization and for costs.
3.The brief case of the Respondent is that Appellant borrowed a
sum of Rs.1,00,000/- from the Plaintiff on 31.03.2013 for his family
expenses and executed a promissory note in favour of the Respondent,
undertaking to repay the principal amount with interest at the rate of 12%
per annum. Appellant has not paid any amount either towards principal
or interest, despite repeated oral demand and inspite of causing a legal
notice dated 02.03.2016. Appellant received the notice, but did not send
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S.A.No.104 of 2021
any reply, no payment was also made. Therefore, Suit was filed.
4.Appellant filed written statement denying borrowal of
Rs.1,00,000/- from the Plaintiff on 31.03.2013 and execution of
promissory note. The specific case of the Appellant is that Appellant has
no acquiescence with the Respondent. The so called promissory note is a
fabricated and forged one. Appellant lodged complaint on 18.03.2016
before the Inspector of Police at Reddichavadi Police Station against
Respondent and his brother Rajendra Prasad. The police after elaborate
enquiry warned the Respondent. Appellant borrowed a sum of
Rs.1,00,000/- from Respondent's brother Rajendra Prasad and executed a
promissory note on the even date, agreeing to repay the same with
interest. The matter was amicably settled before Lok Adalat on
29.01.2015 at Cuddalore in Case No.49/2014. Rajendra Prasad has
created forged and fabricated promissory note and the same was filed by
the Respondent. Appellant sent reply dated 30.03.2016 to the notice
dated 02.03.2016. The suit was illegally filed. Therefore, Respondent is
not entitled for any relief.
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S.A.No.104 of 2021
5.On the basis of this pleadings, the trial Court framed the
following issues:
(i)Whether the Plaintiff is entitled to the suit amount with
subsequent interest?
(ii)What relief the Plaintiff is entitled to?
Following additional issues also framed by the trial Court:
(i)Whether the suit pronote is a forged one?
6.During the trial, PW1 to 3 were examined and Ex.A1 to A3 were
marked on the side of the Respondent/Plaintiff and DW1 was examined
and Ex.B1 to B8 were marked on the side of the Appellant/Defendant.
7.On considering the oral and documentary evidence, the learned
trial Judge found that the Appellant had admitted the signature in Ex.A1,
promissory note and the plea of forgery was not true. Therefore, found
that the suit transaction was true and decreed the suit. Appellant
preferred an Appeal in A.S.No.28 of 2017. The learned Appellate Judge
has gone through the evidence, considered the submissions of the parties,
perused the judgment of the trial Court and ultimately came to the
conclusion that there is no infirmity in the judgment of the trial Court,
warranting interference. In this view of the matter, learned first Appellate
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S.A.No.104 of 2021
Judge confirmed the judgment of the trial Court and dismissed the
Appeal. Challenging the judgment of the first Appellate Court, Appellant
has preferred the Second Appeal before this Court.
8.Learned counsel for the Appellant submitted that there is specific
pleading in the written statement that Appellant has no acquaintance
with the Respondent and never borrowed any amount from the
Respondent. The fact of the matter is that Appellant borrowed a sum of
Rs.1,00,000/- from Respondent's brother Rajendra Prasad and blank
promissory note was given to Rajendra Prasad, at the time of borrowal.
It is now used for filing suit in the name of Respondent. In this regard,
he gave a police compliant, police enquired Respondent's brother &
others and warned them. In the previous Suit in O.S.No.49 of 2014,
Appellant had a specific plea that he has handed over five signed blank
promissory note to Rajendra Prasad and one of those promissory notes is
now used for filing this Suit. These facts were elicited through Ex.B1 to
B8 documents, from the evidence of DW1 and by cross examining PW1
to 3. Both the Courts below have not considered the evidence of
Appellant and decreed the Suit. Therefore, he prayed for setting aside the
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S.A.No.104 of 2021
judgment of the Courts below and for dismissing the Suit by allowing the
Second Appeal.
9.Considered the submissions of the learned counsel for the
Appellant and perused the records.
10.The facts narrated above show that the case of the Respondent
is that Appellant borrowed a sum of Rs.1,00,000/- on 31.03.2013 and
executed Ex.A1 Promissory note. Later Appellant has not repaid any
money towards Principal or interest and therefore, notice dated
02.03.2016 was issued to the Appellant. Even after receipt of notice,
Appellant has not paid the amount, necessitating the filing of the Suit. As
already stated, it is the specific case of the Appellant that he had no prior
acquaintance with the Respondent and had not borrowed any money
from the Appellant. He borrowed Rs.1,00,000/- from Respondent's
brother Rajendra Prasad and executed a promissory note on the even
date. This matter had been settled before the Lok Adalat on 29.01.2015
in O.S.No.49 of 2014.
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S.A.No.104 of 2021
11.It can be gathered from the written statement of the Appellant
that he had specifically stated that he borrowed a sum of Rs.1,00,000/-
from Appellant's brother Rajendra Prasad and executed a promissory
note on the even date, agreeing to repay the amount with interest. There
is no specific pleading in the written statement that Appellant handed
over multiple promissory notes in blank form with this signature.
However, it appears during the course of his evidence, he stated that he
borrowed a sum of Rs.85,000/- from Rajendra Prasad and gave him five
signed blank promissory notes. When it is stated in the written statement
that he borrowed a sum of Rs.1,00,000/- from Rajendra Prasad, during
the course of his evidence, he contradicts this version and claims that he
borrowed only a sum of Rs.85,000/- from Rajendra Prasad. He made
improvement that he handed over five blank promissory notes to
Rajendra Prasad. This aspect, that is, handing over five blank
promissory notes to Rajendra Prasad is not specifically pleaded either in
the complaint given before police on 18.03.2016 or in the written
statement. It is the further evidence of the Appellant that he admitted
that the signature in Ex.A1 Promissory note is his signature, but continue
to say that he made his signature, when it was in a blank form. The
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S.A.No.104 of 2021
Learned trial Judge drew reference to Section 118 of Negotiable
Instruments Act and concludes that the Section 118 of Negotiable
Instruments Act comes to the rescue of Respondent. It was also found
that when a plea of forgery is taken in written statement and when
Appellant admitted in the course of evidence that signature in Ex.A1 is
his signature, the plea of forgery falls to the ground.
12.It is seen from the documents produced on the side of the
Appellant, Exs.B1 and Ex.B8 Compact Discs, allegedly contain the
recording of phone conversation between Appellant and PW2 & 3. It is
claimed by the Appellant that PW2 & 3 also admitted that Appellant
signed in blank promissory note, for the Court to draw presumption that
suit promissory note was not executed as claimed by the Respondent.
Admittedly, it is an electronic evidence. Electronic evidence requires
certificate under Section 65(B) of Indian Evidence Act for being admitted
as evidence. Not only that it appears no efforts have been taken to show
that the conversation recorded in Ex.B1 & B8 was really between
Appellant and PW2 & 3. No voice analysis test was undertaken before
the Court below. Therefore, Ex.B1 and B8 cannot be relied by the
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Courts.
13.Section 118 of the Negotiable Instruments Act reads as follows:
“118 Presumptions 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;
(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 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 contained from its
lawful owner, or form any person in lawful custody thereof, by means
of an offence or fraud, or for unlawful consideration, the burden of
proving that the holder is a holder in due course lies upon him.”
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14.As per this Section, presumption regarding consideration, date,
time of acceptance, time of transfer, order of indorsement, as to stamp,
the holder is the holder in due course had drawn until the contrary is
proved. Thus from the analysis of the oral and documentary evidence
produced, it has to be necessarily concluded that Appellant has given
evidence without pleading and in fact contrary to the pleading. The plea
of forgery is contradicted by his own admission of his signature in Ex.A1
promissory note. On the other hand, Pw1 to 3 have given evidence
cogently and convincingly in support of borrowal of Rs.1,00,000/- by the
Appellant on 31.03.2013 and execution of Ex.A.1 promissory note, in
support of borrowal. Therefore, both the Courts have concurrently found
the case of the Respondent acceptable and decreed the suit. This Court
also after going through the evidence and submissions of the learned
counsel for the Appellant found no reason to differ from the view taken
by the Courts below. There is no substantial question(s) of law involved
in this Second Appeal.
15.Therefore, this Court confirms the Decree and Judgment dated
26.02.2020 passed in A.S.No.28 of 2017 on the file of the learned I
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S.A.No.104 of 2021
Additional District and Session Judge, Cuddalore, confirming the Decree
and Judgment passed in O.S.No.72 of 2016 dated 07.03.2017 on the file
of the learned Principal Subordinate Judge, Cuddalore. Accordingly,
dismisses the Second Appeal with the costs to the Respondent.
10.12.2021
Speaking Order/Non Speaking Order
Index : Yes
Internet : Yes
sai
To
The learned I Additional District and Session Judge,
Cuddalore.
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S.A.No.104 of 2021
G.CHANDRASEKHARAN, J.
sai
S.A.No.104 of 2021
Dated: 10.12.2021
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