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THE HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO APPEAL SUIT No.159 OF 2016 JUDGMENT: 1. Aggrieved by the Decree and Judgment dated 15.09.2014 in O.S.No.40 of 2010 passed by the learned VI Additional Senior Civil Judge, Visakhapatnam (for short "the trial Court"), the appellants/defendants preferred this appeal questioning the correctness of the Decree and Judgment passed by the trial Court. 2. For the sake of convenience, the parties will hereinafter be referred to as arrayed in the Original Suit. 3. The plaintiff‟s claim is that the defendants 1 and 2, who are the husband and wife, jointly borrowed Rs.4,00,000/- from the plaintiff on 15.12.2007 for their business purpose and to purchase of lands and they jointly executed promissory note in favour of the plaintiff, agreeing to repay the same with interest at 24% per annum. In spite of repeated demands made by the plaintiff, the defendants failed to repay the said amount. Later, the plaintiff got issued legal notice on 30.11.2009 to the defendants, having received the same neither they give reply nor discharged the said debt. 4. The 1st defendant filed written statement and the same is adopted by the 2nd defendant by filing an adoption memo. The 1st defendant denying the allegations made in the plaint and contending that he is an Advocate by profession and also a Notary. The plaintiff approached the 1st defendant
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in the year 2007,to acquire lands in NGR Puram Village from various Ryots by purchasing an extent of Ac.8.00 at the rate of Rs.4900/- per cent. The plaintiff paid some amounts as advance to the land owners. Subsequently, due to downfall in real estate business, there is a short fall of value of the lands; the plaintiff was unable to pay the remaining balance sale consideration, insisted the land owners for refund of advance amount, but they did not pay the amount. Later, the plaintiff approached the 1st defendant to exercise his influence, but the 1st defendant expressed his inability to interferein the matter. Then, the plaintiff bore grudge against 1st defendant and fabricated the suit pronote, and also other pronotes by forging the signatures of the defendants and filed the suit. 5. Based on the above pleadings, the Trial Court framed the issues as well as additional issue, which are as under:- 1) Whether the plaintiff is entitled to recover the suit amount or not? 2) Whether the suit pronote is true, valid and binding on the defendants or not?
3) To what relief? Additional Issue:
Whether the suit promissory note is not supported by consideration?
On behalf of the plaintiff, P.Ws.1 to 3 were examined and marked Exs.A1to A4 and on behalf of the defendants D.Ws.1 to 4 were examined and Exs.C.1 to C.12 were exhibited through an expert/D.W.4 on behalf of the defendants.
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After considering the evidence on record, the trial Court decreed the suit with costs for Rs.5,95,467/- with interest @ 12% per annum from the date of suit till the date of decree and thereafter @ 6% per annum from the date of decree till the date of realization on principal amount of Rs.4,00,000/-. 8. I have heard the arguments of learned counsel for both parties. 9. Sri Aravala Rama Rao, learned counsel for the appellants/defendants, contends that the attestors and scribe are the followers of the plaintiff and that the appellants never executed any promissory notes in favour of the plaintiff and there was no necessity to borrow such amount. He further contended that the trial Court failed to see that the respondent/plaintiff developed grudge against the 1st appellant and fabricated the suit pronote and other pronotes by forging his signatureHe further contended that there is no possibility to the plaintiff to claim much amount and no possibility to lend much amount on various pronotes (12) in number; there are no Income Tax returns filed by the respondent/plaintiff and therefore the plaintiff has no capacity to lend such amount to the appellants. He further contended that the trial Court failed to see that the 1st appellant acted as a mediator and obtained sale agreement from him and other Ryots, later the plaintiff did not come forward to pay the balance sale consideration and insisted to return the advance but the Ryots did not accept. The trial Court erred in holding that once execution of pronote is proved, the Court shall presume that the suit pronote is supported by consideration, though there is no evidence adduced to prove the sale consideration and the trial Court
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failed to see that the evidence of P.W.1 is not corroborated with the evidence of P.Ws.2 and 3. The trial Court ought to have seen that normally the courts awarded interest at 6% per annum instead of awarding 12% per annum. 10. Per contra, Sri P.V.Ramana, learned Counsel for the respon- dent/plaintiff would contend that the trial Court correctly appreciated the facts of the case and reached a correct conclusion. The reasons given by the trial Court do not require any modifications. 11. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of the rival contentions and submissions made before this Court, the points that would arise for determination are: (1) Whether the trial Court is justified in holding that the suit promissory note is true, valid and supported by consideration?
(2) Whether the decree and Judgment passed by the Trial Court needs any interference?
POINT Nos.1& 2:
The plaintiff is examined as P.W.1. The 1st defendant is examined as D.W.1. The 2nd defendant is the wife of 1st defendant. To prove the Ex.A1 suit transaction, the plaintiff also got examined P.W.2-Ch.Bhaskara Rao/Attestor, and P.W.3-V. Gowreswara Rao. P.Ws.1 to 3 deposed that both the defendants borrowed Rs.4,00,000/- from the plaintiff on 15.12.2007 and executed Ex.A1 promissory note on receipt of consideration amount thereunder. Evidently, the plaintiff got issued a legal notice [Ex.A2] to the defendants calling upon them to pay the amount
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payable under Ex.A1 promissory note with interest. To show the receipt of the legal notice, the plaintiff relied on Ex.A3 and Ex.A4 acknowledgements. It is the defendants' stand that the plaintiff forged the defendants' signatures and fabricated Ex.A1 promissory note. Evidently, P.W.1 and D.W.1 jointly carried on the coconut and cashew business for about 14 to 15 years as partners, and 1st defendant is an advocate by profession. P.W.1 was cross-examined regarding his financial capacity to lend the amount covered under Ex.A1. The evidence of P.W.1 shows that he owns Ac.2.00 of the land. The recordalso discloses that the plaintiff filed suits against the defendants based on the other six promissory notes. 13. P.W.2 testified in cross-examination that the defendants borrowed amounts from the plaintiff twelve times in 2007-2008 within a gap of one or two months. At eight times, the defendants borrowed amounts of Rs.5,00,000/- each and the remaining promotes concerned, D.1 and D.2 borrowed Rs.2,00,000/- each under two promissory notes and Rs.4,00,000/- under the remaining two promissory notes. The evidence of P.W.2 coupled with Ex.A1 shows that he attested the promissory note. 14. P.W.3, the Scribe of the promissory note, also deposed that D.1 and D.2 executed twelve promissory notes in 2007-2008. P.W.3 expressed ignorance as to whether there are suits filed by the plaintiff other than six suits. The cross-examination of P.Ws.1 to 3 appears to be regarding the other transactions also. It is not much relevant and proper to deal with the contentions regarding the other transactions.
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It is the defendants case that during the year 2007, the plaintiff approached D.1 to acquire lands in NGR Puram village from various ryots to the extent of Ac.8.00 @ Rs.4900/- per cent, and the 1st defendant acted as mediator; the plaintiff paid some amounts to land owners and subsequently there was a downfall in the real estate business; and the plaintiff was unable to pay the balance amount, and insisted the land owners refund the amount, but they did not pay the amount; plaintiff insisted 1st defendant to exercise his influence and 1st defendant expressed his inability and the 1st defendant advised the plaintiff to pay the balance amount, the plaintiff developed a grudge against D.1 and fabricated the pronote by forging the defendant‟s the signature. Having taken such pleas, defendants should not dispute the financial capacity. 16. To establish their case, the defendants got examined D.W.2-G.Chinna Rao and D.W.3-L.Appala Naidu. D.Ws.2 and 3 supported the defendant's stand in the chief examination. However, as noted correctly by the trial Court, their accounts diverged during cross-examination. In contrast to the earlier version, D.W.2‟s cross-examination revealed a completely different version. He testified that the transaction had occurred solely between himself and D.1 with no sale transaction taking place between him and the plaintiff in 2007. DW.2‟s testimony indicated that the plaintiff acquired approximately Ac.8.00 of the land from his six paternal uncles. Notably, D.1 has raised questions regarding the plaintiff‟s failure to pay the remaining sale amount. Additionally, D.W.2 revealed he had often enquired with D.1 due to the sale transaction between him and D.1. Upon cross
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examination, D.W.2‟s testimony did not align with the defendants‟ case as contended in the suit. 17. Regarding the DW.3‟s cross examination, he also affirmed that he lacked personal knowledge concerning the financial transactions involving the plaintiff and D.1. In contrast, the 1st defendant failed to show that the plaintiff entered into sale transactions with the farmers of NGR Puram accompanied by an advance payment to those farmers. If there is truth in the 1st defendant‟s version; he could have examined the farmers, who entered into agreement with the plaintiff. As such, this Court finds that the defendants failed to establish the plea of developing a grudge against him. Furthermore, the defendants have not provided a substantial basis for the alleged grudge against the plaintiff. Notably, the 1st defendant has not asserted that he has undertaken the responsibility of collecting amounts from the farmers. It becomes difficult to accept the defendants‟ contention that the plaintiff forged the promissory notes. Furthermore, there is no indication from the defendants that the disputes arose between them and the plaintiff concerning their coconut and cashew business. 18. Whenever a party disputes the signature on the particular document, two remedies are open to him either to request the Court to compare the signatures or to file an application to send the document to the expert for comparison. No doubt, the Handwriting Expert's opinion is not the final word on the issue and is not conclusive, but it can be taken as a corroborative piece of evidence. As there is a serious dispute about the
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genuineness of signatures on the Ex.A1 promissory note, the Expert opinion would go a long way in resolving the controversy. An Expert is not a witness of fact, and his evidence is advisory.The defendants examined D.W.4-Narendra Singh, an Expert, whose evidence was recorded by an Advocate-Commissioner and Ex.C1 to Ex.C12 documents were marked through the Expert. The Expert gave his opinion, stating that the disputed signatures of Q.1 and Q.2 are quite similar to the admitted signatures available on Vakalat, Suit summons and specimen signatures obtained in open Court. In his opinion, the signatures were written freely in disputed signatures and do not show any sign of imitation or disguise. The similarities are seen in the formation of 'S', „m‟ 'h', 'l', and 'i', as well as habit of writing Simhachalam. The similar habit of the apex of „h‟, „k‟, execution of „m‟, as well as combination of „ha‟, „la‟, „Si‟. The Expert offered comprehensive reasoning to support his conclusion. No substantive evidence was brought forth to cast a doubt on the Expert‟stestimony. 19. In Ram Narain v. State of Uttar Pradesh1, the Hon‟ble Apex Court considered Section 45 of the Evidence Act and the circumstances under which the evidence of an expert can be accepted by the Court and concluded as under: “…But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. If after comparison of the disputed and admitted writings by the Court itself, when the presiding officer is familiar with that lan-
1 AIR 1973 SC 2200
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guage, it is considered safe to accept the opinion of the expert then the conclusion so arrived at cannot be assailed on special leave on the mere ground that comparison of handwriting is generally consi- dered as hazardous and inclusive and that the opinion of the handwriting expert has to be received with consideration caution.” 20. In Vadrevu Annapurnamma v. Vadrevu Bhima Sankara Rao and Others2, the Composite High Court of Andhra Pradesh at Hyderabad observed thus: "There are many factors which have to be taken into consideration in effecting a comparison of the two signatures, and although a Court could apply its own eyes and its own mind to determine whether a particular signature is resembling another it would be going beyond the ordinary limits of the capacity of a Court to consti- tute itself as a Handwriting Expert and try to compare the signature without all the gadgets and devices which are available to a Handwriting Expert, besides the lack of expert knowledge which a Handwriting Expert possesses." The above legal position makes it clear that the expert's opinion is not excluded from the purview of examination and it was opined that it will help the Court in exercis- ing power of comparison under Section 73 of the Evidence Act.
At this stage, it is apposite to refer to State of Maharashtra v. Sukhdev Singh3, wherein it was held as follows: “In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted.” “It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of Handwriting is an imperfect and frail one as compared to the science of identification of fingerprints.”
21960 AIR (AP) 359 3(1992) 3 SCC 700
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“No hard and fast rule can be laid down in this behalf but the Court has to decide in each case of its own merits what weight it should attach to the opinion of the expert.“ 22. In order to satisfy myself, I have seen the admitted and disputed signatures of the defendants. I have no reason to doubt the Expert‟s opinion, as the signatures appear similar. The evidence of DW.4–Expert, therefore, is duly corroborated by the evidence of PWs.2 and 3. 23. The Expert opinion does not conflict with the evidence of P.Ws.1 to 3 regarding the execution of the promissory note by the defendants. The reasons for the opinion are convincing, and there is no reliable evidence throwing doubt. The report of the Expert cannot be overlooked by taking into consideration that the science of identification of Handwriting is an imperfect and frail one. This Court finds no valid reason to differ the Expert opinion. There was no acceptable direct testimony which was destructive of the Expert‟s opinion. There were no features also which made the Expert‟s opinion unreliable. 24. The evidence of PW.1 to PW.3 clearly shows that the defendants have subscribed their signatures on the Ex.A.1-promissory note and received the consideration. Once those materials were available, naturally, the presumption under section 118 of the Negotiable Instruments Act would come into play.
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In G. Venkata Rama Subbaiah Vs. D. Rasool Naik4, the composite High Court of Andhra Pradesh held thus : “Once the execution of the promissory note is admitted or proved, then it is presumed to be supported by consideration unless contrary is proved. The burden is on the defendant to rebut the same by adducing convincing evidence. Unless the defendant rebuts the presumption by adducing convincing rebuttal evidence, the evidential burden would not shift back to the plaintiff who has legal burden only after adducing such convincing rebuttal evidence, it can be held that thereafter the presumption under Section 118 does not come to the rescue of the plaintiff.”
In a decision Bonalaraju V. S. Sarupula Srinivas5, the composite High Court of Andhra Pradesh held that: “once execution is proved the presumption under Section 118 of N.I. Act that it is supported by consideration automatically applies and the contention that the plaintiff is not only to establish the execution but also establish passing on the consideration is rejected”.
In a decision Abbisetti Krishnamoorthy V. Singasani Raghura- maiah (died) per L.R.s6, the composite High Court of Andhra Pradesh held that: "Section 118 of the N.I Act shows that the presumption attached to passage of consideration (as is the subject matter of this Appeal) just like other presumption also is clearly rebuttable and it is for the defendant to satisfy the Court that in a given case, the presumption cannot be drawn".
Having regard to the evidence, which is adverted to supra, this Court views that the defendants do not show satisfactory and reliable evidence or circumstance to disbelieve the evidence of PWs.1 to 3 regarding the execution of the Ex.A.1 promissory note by the defendants and passing of
42003 (4) ALT 414 5 2006(2) ALD 202 6 2011(5) ALT 143
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consideration. The evidence of PWs.1 to 3 is consistent regarding the execution of the Ex.A.1 promissory note by the defendants on receipt of the consideration amount. Though PWs.1 to 3 were subjected to lengthy cross- examination, nothing was elicited to discredit their evidence. The plaintiff and his witness have no reason to fabricate the suit promissory notes. PWs.2 and 3 have no reasons to depose falsehood against the defendants‟ interest. They gain nothing by supporting the plaintiff‟s case unless there is a truth. However, even the rebuttal could be given by direct evidence or by proving the preponderance of probabilities. 29. In the present case, the defendants have not rebutted the presump- tion, even by the preponderance of probabilities. The evidence of PWs.1 to 3 establishes the execution of Ex.A.1 promissory note. The burden lies on the defendants 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. Suppose the defendants have discharged the onus of proof showing that the existence of considera- tion was improbable or doubtful and the execution of the promissory note, the onus would be shifted to the plaintiff. Then they will be obliged to prove the existence of the consideration. 30. On studied scrutiny, it is seen that the defendants have not produced any evidence to discharge the onus on him. The defence taken by the defendants is not substantiated. The defendants have failed to prove their contention regarding non-passing of consideration under Ex.A.1 by leading cogent evidence. The presumption under section 118 of the Negotiable
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Instruments Act 1881 is a statutory one, and unless it is rebutted, it has to be presumed that consideration has passed. 31. For the reasons stated above, this Court is of the opinion that the plaintiff is able to establish the execution of the suit promissory note, in his favour, by the defendants after receipt of the consideration amount thereunder. 32. 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 am of the opinion that the findings arrived at by the trial Court are absolutely correct, and no justifiable reasons have been shown by the appellants/defendants for arriving at different conclusions. I agree with the conclusion reached at by the trial Court. 33. Accordingly, the Points are answered in favour of the plaintiff by holding that the Trial Court is justified in holding that the defendants executed the suit promissory note and received the consideration amount there under. Given the preceding discussion, the view taken by the trial court does not call for any interference and this Appeal fails and is hereby dismissed. The impugned Decree and Judgment passed by the trial court is upheld.
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As a result, the Appeal is hereby dismissed without costs by confirming the Decree and Judgment dated 15.09.2014 in O.S.No.40 of 2010, passed by the learned VI Additional Senior Civil Judge, Visakhapatnam. Consequently, miscellaneous petitions pending, if any, in this Appeal shall stand closed.
_________________________________ JUSTICE T. MALLIKARJUNA RAO
Date: 22.08.2023 MS
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THE HON’BLE SRI JUSTICE T. MALLIKARJUNA RAO
APPEAL SUIT NO.159 OF 2016 DATE: 22.08.2023