Andhra Pradesh High Court - Amravati
Tupakula Vasantha vs Kovvuri Srinivasa Reddy on 7 September, 2021
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
THE HON'BLE SRI JUSTICE M.VENKATA RAMANA
SECOND APPEAL No.429 of 2021
JUDGMENT:
Heard Sri C.Subodh, learned counsel for the appellant.
2. The respondent laid a suit for recovery of Rs.2,95,600/- on the foot of a promissory note against the appellant.
3. The case of the respondent is that the appellant borrowed Rs.2,00,000/- from the plaintiff on 29.11.2015 agreeing to repay the same with interest at 24% p.a. and executed the suit promissory note. It is further case of the respondent that in spite of repeated demands and in spite of legal notice dated 14.11.2017, since the appellant failed to repay the amount due, he was constrained to lay the suit.
4. The principal defence of the appellant, who had chosen to file only written statement, from which it would be culled out is that it is one of denial the entire transaction and borrowing money under the suit promissory note from the respondent. She pleaded forgery and fabrication of suit promissory note.
5. The trial Court settled the following issues on the pleadings.
1. Whether the suit pronote dt.29.11.15 for an amount of Rs.2,00,000/- is true, valid, supported by consideration and binding on the defendant or was it a forged and fabricated document as alleged by the defendant? 2
2. Whether the calculations made in the plaint are incorrect?
3. Whether the plaintiff is entitled for the suit claim as prayed for?
4. To what relief?
6. Trial went on in this matter, where the respondent had let in evidence examining himself as PW.1 and another witness, PW.2 who is the scribe of the suit promissory note. Exs.A1 to A3 were relied on at the trial for the respondent. The appellant did not choose to enter the witness box. Yet, learned trial Judge choose to dismiss the suit on the premise that the initial burden is on the respondent to prove the transaction holding the testimony of PWs.1 and 2 is unbelievable.
7. Appeal preferred there against ended in reversal of the decree and judgment and a decree was passed against the appellant making him liable to pay the amount due.
8. It is, in these circumstances, this second appeal is presented.
9. Substantial questions of law are raised in the grounds of appeal. They revolve around the burden of proof, which the plaintiff is expected to discharge and effect of Section 118 of the Negotiable Instruments Act. Once such burden is discharged, they also referred to effect of entering upon defence by the defendant.
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10. The burden of proof in a suit based on a promissory note with reference to application under Section 101 of the Evidence Act remains constant and when the transaction is proved basing on the evidence, it swings in tune with Section 102 of the Evidence Act. It was the predominant consideration for this Court in G.Vasu v. Syed Yaseen Sifuddin Quadri(AIR 1987 AP 139(FB)).
11. At the same time, when the nature of the defence is of denial of the entire suit transaction including execution of promissory note, abstract principles relating to burden of proof cannot hold sway, when such defence is not established. More particularly, when the party, who sets up such defence as the defendant did not enter the witness box to support the pleadings in the written statement, the evidence let in on behalf of the plaintiff should necessarily be considered in the light of such circumstance.
12. An adverse inference should necessarily be drawn against the defendant in these circumstances and to hold that purposely the defendant did not enter the witness box, since the defence is improper or false. When a party, who chooses to contest the matter setting up such pleadings, did not come forward to let in evidence, no premium as such in favour of a party can be extended basing on assumptions and presumptions as has been done in this case.
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13. Learned trial Judge in para 7.10 observed as under:
"Though the defendant failed to enter into the witness box to testify the facts, since the initial burden rests on the plaintiff to prove the transaction and thereby to draw the presumptions, it is the bounden duty of the plaintiff to prove his case through positive evidence. But, here in this case there are several infirmities in the testimonies of PWs.1 and 2, which raises a serious doubt about the transaction. When the plaintiff has failed to discharge his initial burden, the presumptions cannot be drawn in favour of the plaintiff. Though non-examination of defendant is a drawback to her case, the plaintiff failed to discharge the initial burden which rests on him."
Further observations in para 7.11 are as under:
"Mere holding of instrument is not sufficient to hold that the suit pronote was executed in favour of the plaintiff. Even though the defendant failed to prove that the signature and thumb impression on the suit pronote do not belong to her, the contents of the document have to be proved by the plaintiff. Since the defendant is an employee and if she has in need of amount, she can borrow the same from her working place or district nearest place and not from a place where she has no acquaintance at all and that too from an unknown person. In view of the above material and in view of the decisions referred above, the defendant can show the circumstances which improbabilises the case of the plaintiff. In light of above discussion, this court is of considered view that there are no bonafides on the part of the plaintiff, as such, this court is of the opinion that the plaintiff failed to prove his case. Accordingly, these issues are answered in favour of the defendant and against the plaintiff."5
14. The evidence of PWs.1 and 2 was thus discarded holding that it is unbelievable basing on certain minor discrepancies by the learned trial Judge.
15. Ultimately, it is for the learned appellate Judge to reappraise entire evidence and with reference to burden of proof, which the plaintiff is expected to discharge, observed in para-29 in his judgment as under:
"It is to be noted that the burden of proof will always be on the plaintiff, but the onus of proof will be shifted to the defendant whenever the plaintiff adduced evidence to prove his contention. Though, the defendant cannot adduce any evidence to prove the negative act of non- existence of consideration, it can be through the cross- examination of plaintiff side witnesses. In the present case the inconsistencies with regard to the number of persons present at the time of execution of Ex.A1 cannot be a material discrepancy to disbelieve the entire version of PWs.1 and 2. Moreover, the finding of trial court is that the defendant is a government employee and it is highly improbable to come over to Ramachandrapuram to borrow money from an unknown person. When the defendant counsel made a suggestion to the PW.1 that the Ex.A1 is a fabricated document and a blank signed promissory note was given by the defendant to a person by name Reddy of Nellore and by using the said promissory note, the present suit is filed, the non-examination of defendant herself as a witness is strengthening the case of plaintiff."6
16. In para-35 of the appellate court judgement, it is further observed as under:
" Under the aforesaid reasons, this Court is of opinion that by adducing the evidence of PWs.1 and 2 and by marking the documents Ex.A1 to A3, the plaintiff clearly established his case and the defendant failed to adduce any evidence to disprove the case of plaintiff and as such the plaintiff is entitled for the suit claim."
17. Relevant for the present purpose are the observations of the learned appellate judge in para-36:
"The findings of trial Court are completely appears to be basing on assumptions and presumptions with regard to the distance in between the place of residence of defendant and the plaintiff and non-examination of brother-in-law of PW.2. Hence, this Court is of opinion that the findings of trial court are erroneous and not supported any substantive evidence and as such it is liable to be set aside."
18. When basing on the facts and material, when the learned appellate Judge has chosen to record such findings, which it did as a last Court of fact, this court, in the second appeal should be slow to interfere. Particularly when the reasons assigned by the learned appellate Judge are proper and in accordance with law, as against erroneous findings of the learned trial Judge basing on whims and fancies, it cannot be stated that there are such substantial questions of law that require consideration in terms of Section 100 C.P.C. by this Court. Consequently, the second appeal has to be dismissed.
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19. In the result, the Second Appeal is dismissed at the admission stage confirming the decree and judgment of the court of learned Senior Civil Judge, Ramachandrapuram in A.S.No.31 of 2018 dated 02.03.2021. Consequently passing decree in O.S.No.309 of 2017 on the file of the Court of learned Principal Junior Civil Judge, Ramachandrapuram dated 02.07.2018 is upheld.
20. Registry is directed to forward a copy of this judgment to Sri M.Siva Kiran, Junior Civil Judge, wherever he is working in this State and report compliance. No costs.
21. Consequently, miscellaneous petitions pending if any, shall stand closed.
22. Interim orders granted earlier if any, stand vacated.
_____________________ M.VENKATA RAMANA, J Date: 07.09.2021 Pab