Andhra Pradesh High Court - Amravati
Sri Gunji Adi Seshu vs Sri Bandaru Veerabhadra Rao on 13 December, 2022
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.788 of 2022
Between:
Sri Gunji Adi Seshu, S/o late Venkata Subbayya,
aged 61 years, Occ: Business, R/o Plot No.216,
D.No.10-150, Visalakshinagar, presently residing
at Flat No.401, Renuka Nivas, Chaitanya Nagar,
Maddilapalem, Visakhapatnam.
... Petitioner/Plaintiff.
Versus
Sri Bandaru Veeerabhadra Rao, s/o late
Bandaru Brahma Raju, aged 65 yers, R/o
D.No.29-9-22, Mandapativari Street, Kakinada,
East Godavari District.
... Respondent/Defendant.
Counsel for the petitioner : Sri V.V.Satish
Counsel for respondent : Sri V.V.Ravi Prasad
ORDER
Plaintiff in the suit filed the above revision against the order dated 15.03.2022 in I.A.No.29 of 2022 in O.S.No.766 of 2014 on the file of IV Additional District Judge, Visakhapatnam.
2. Plaintiff filed suit O.S.No.766 of 2013 against the defendant for recovery of an amount of Rs.35,23,800/- basing on promissory note dated 06.02.2022.
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3. Defendant filed written statement and is contesting the suit. Defendant while admitting signature however pleaded fabrication, interpolation of words etc., In the written statement defendant elaborated the circumstances and would contend that in those circumstances and in all probabilities the promissory note could have been brought into existence. While explaining the other contents, defendant pleaded as follows:
"One Lakshmana Rao, who blindly believed the plaintiff fell into his trap, gave the said blank promissory note with the top amount column filled up to this plaintiff. Plaintiff fabricated the same and filed the suit. The trickery he played in fabricating the promissory note is he got the digit "1" interpolated between "2"and "0"and made the amount from Rs.2,00,000/- to Rs.21,00,000/- and that is why a clear difference in writing, alignment of digits is clearly seen even to a naked eye."
4. Trial in the suit was commenced, plaintiff examined himself as P.W.1 and scribe of promissory note was examined as P.W.2. The scribe during the chief examination admitted scribing of Ex.A-1. During the cross examination, defendant‟s counsel put questions to P.W.2, which runs as follows:
"I suggest you that you or plaintiff or both of you put digit „1‟ in the gap between the „2‟ and the comma? P.W.2 answered by seeing Ex.A-1 stated that he did not scribe Ex.A-1 and he scribe promissory note which 3 is bigger than Ex.A-1. He further stated that "I have not seen the promissory note which I scribed, after scribing the same".
5. In view of the said deposition of P.W.2, plaintiff filed I.A.No.29 of 2022 under Section 154 of the Indian Evidence Act r/w Section 151 of CPC seeking permission to cross examine P.W.2.
6. In the affidavit filed in support of the petition, it was contended interalia that the scribe confirmed scribing of document in chief examination and when he was confronted Ex.A-1 during cross examination, he deposed that he did not sign Ex.A-1 and he scribed it on a long white paper; that he had every suspicion that P.W.2 was won over by other side, as such he gave such answers and hence, filed this application to permit the plaintiff to cross examine P.W.2.
7. Respondent filed counter and opposed the application.
8. Trial Court by order dated 15.03.2022 dismissed the application. Aggrieved by the same, the present revision is filed.
9. Heard Sri V.V.Satish, learned counsel for petitioner and Sri V.V.Ravi Prasad, learned counsel for respondent. 4
10. Learned counsel for petitioner would submit that P.W.2 having admitted in the chief examination about scribing of Ex.A-1, denied scribing of Ex.A-1 when it was confronted to him. He further deposed that he scribed promissory note, which is bigger than Ex.A-1. He would submit that since P.W.2 denied the very scribing of Ex.A-1, this application is filed to cross examine P.W.2 and the trial Court without considering the same erroneously dismissed the application.
11. On the other hand, learned counsel for respondent would submit that during the cross examination suggestions were put to P.W.2 and he deposed that he did not scribe Ex.A-1 and the promissory note scribed by him is bigger than Ex.A-1. He would submit that the very purpose of cross examination is to elicit truth and it is within the legal right to impeach the testimony of witness by such legally acceptable methods. He would also submit that when P.W.2 was cornered, he deposed as extracted supra and hence, P.W.2 cannot be treated as hostile witness and the plaintiff is not entitled to cross examine him and prayed the Court to dismiss the revision.
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12. Now, the point for consideration is:
Whether in the facts and circumstances of the case, application filed by the plaintiff under Section 154 of the Indian Evidence Act r/w Section 151 of CPC seeking permission to cross examine P.W.2 is permissible?
13. Section 4 of the Negotiable Instruments Act, 1881 deals with promissory note, which reads thus:
"A "Promissory note" is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument."
14. The maker of promissory note unconditional undertakes to pay the amount either to order or any person or the bearer of instrument. Unlike a Will, mortgage or Gift Deed, the promissory note is not a compulsorily attestable document. The scribing of promissory note is by promisor, promisee or by any third party. In the case on hand, scribe of the document having been testified in the chief affidavit regarding scribing of document, when confronted to the witness during the cross examination, denied scribing of Ex.A-1. When the scribe himself denied execution of document confronted to him i.e. Ex.A-1, 6 application was filed under Section 154 of the Indian Evidence Act r/w Section 151 of CPC to cross examine P.W.2.
15. Section 67 of the Indian Evidence Act, which is apt to the situation, reads thus:
67. Proof of signature and handwriting of person alleged to have signed or written document produced.--If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person‟s handwriting must be proved to be in his handwriting.
16. When the scribe himself denied qua scribing the instrument on confrontation to him during cross examination, the burden lies on the plaintiff to prove that the document was scribed by that person, who testified said fact in chief examination. In the case on hand, as stated supra, P.W.2 alleged scribe denied scribing of Ex.A-1 having been testified in the chief affidavit. Though Ex.A-1 is not compulsorily attestable document, since the scribe denied his signature, plaintiff is constrained to file the above application.
17. The defendant in fact admitted his signature on Ex.A-1 promissory note. However, defendant explained in the written statement under what circumstances, the promissory note 7 might have brought into existence. In fact, defendant specifically pleaded interpolation of numeral "1" in between numerals "2" and "0". When a question was put to scribe, about the interpolation, without giving answer, he denied execution itself. The scribe took somersault from the original sworn statement made on oath qua scribing of Ex.A-1.
18. Declaring a witness as hostile at the stage of his evidence does not arise. During the course of evaluation of evidence, the Court has to form an opinion as to declaring the witness as hostile or not. Section 154 (2) of the Indian Evidence Act would indicate that, that part of the evidence of witness can be considered. The Court while evaluating the evidence will consider the evidence of witness. If the Court comes to conclusion while evaluating the evidence that he turned hostile, then only the Court will declare that person as hostile.
19. The observation of the trial Court that P.W.2 might have afraid of prosecution for fabricating a document or he might have realized that Ex.A-1 was not the promissory note he scribed, is too early to come to such conclusion. Since P.W.2 denied scribing of Ex.A-1, that compelled the plaintiff to seek permission of the Court to cross examine him. As stated supra, 8 declaring particular person as hostile during the cross examination doesn‟t arise. The cross examination of that witness does not completely efface his evidence.
20. In view of above discussion, this Court is of the opinion that the trial Court failed to exercise the jurisdiction vested with it. The order of the trial Court suffers from illegality which warrants interference of this Court under Article 227 of the Constitution of India.
21. Accordingly, the Civil Revision Petition is allowed and the order dated 15.03.2022 in I.A.No.29 of 2022 in O.S.No.766 of 2014 on the file of IV Additional District Judge, Visakhapatnam is set aside. I.A.No.29 of 2022 is allowed. Trial Court shall permit the plaintiff to cross examine P.W.2. No costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 13th December, 2022 PVD