Telangana High Court
Kalyanam Srinivasa Rao vs Yanamaddi Rajesh on 12 November, 2025
THE HON'BLE SMT. JUSTICE RENUKA YARA
Second Appeal No.445 of 2025
JUDGMENT:
Heard Sri D. Shaila, learned counsel for the appellant on the question of admission. Perused the record.
2. The second appeal is preferred by the appellant/ appellant/defendant aggrieved by the judgment and decree passed by the learned VI Additional District Judge at Sathupally in A.S.No.6 of 2023, dated 02.05.2025 confirming the judgment and decree passed by the Senior Civil Judge at Sathupally in O.S.No.136 of 2012, dated 23.09.2022, wherein the suit filed for recovery of amount of Rs.9,96,200/- with interest has been decreed in favour of the respondent/respondent/plaintiff for Rs.9,96,200/- with costs and interest at 12% per annum from the date of suit till the date of realization.
3. For the sake of convenience, the parties are referred as they are referred before the Trial Court.
4. The brief facts of the dispute between the parties are that the plaintiff and defendant were acquainted with one another. Out of said acquaintance, the defendant borrowed an amount of 2 Rs.6,00,000/- on 29.12.2009 to meet his family and business necessities. After receiving the amount, the defendant executed a demand promissory note in favour of the plaintiff agreeing to repay the borrowed amount with interest at 24% per annum. The transaction took place in the presence of Y. Venkateswara Rao and Y. Satish Kumar who are attestors of the promissory note and Y. Ramesh Babu scribed the promissory note. Thereafter, when there is failure on the part of the defendant to pay the suit amount, the suit for recovery was filed.
5. The defendant opposed the suit claim alleging that the promissory note which forms basis for suit for recovery is a forged and fabricated document. The defendant claimed to be doing business in the name and style of Sri Srinivasa Fertilizers at Janakipuram Village of Bonaka Mandal which is situated near the house of the plaintiff. There is acquaintance between the parties as well as the family members. Intentionally, legal notice dated 21.10.2011 was sent to the defendant's native village at Mittagudem and it was served on a relative of defendant and suitable reply was given. It is the case of defendant that the alleged promissory note was scribed by the plaintiff's father, the plaintiff's brother stood as first attestor and his friend N. Sridhar 3 stood as second attestor. Reply notice was issued but false suit is filed. It is pleaded that the plaintiff is an unemployee with no income and therefore, had no financial capacity to lend the suit amount. It is pleaded that the suit is filed with malafide intention of the plaintiff and his family members and therefore, sought its dismissal.
6. The plaintiff got examined PWs 1 to 3 and got marked Exs.A1 to A4. The defendant got examined himself as DW1 and handwriting expert as CW1 and got marked Ex.C1/Expert opinion report. Upon examining the case of both the parties, the Trial Court decreed the suit and aggrieved by the same, the First Appeal has been preferred in A.S.No.6 of 2023. Said appeal was dismissed confirming the judgment and decree of the Trial Court leading to filing of the present Second Appeal.
7. In Second Appeal, the following substantial questions of law are proposed for consideration:
a. The substantial question of law that arises for consideration that the Ex.A1 promissory note is a forged and fabricated one, burden of proof lies on the defendant as held by the First Appellate Court and the said findings is contrary to the well-established 4 principles of law that the burden of proof lies on the plaintiff as held by the Hon'ble Supreme Court in catena of decisions ?
b. Whether the promissory note scribed and witnessed by the father and two sons who are interested witnesses and in the absence of any independent witnesses, the Ex.A1 promissory note can be treated as proved?
c. Whether the experts opinion (Ex.C1) can be discarded by comparing the signatures of the Ex.A1, with admitted signatures of DW1 by the Trial Court and thereby held that the same was executed by DW.1 without assigning any cogent reasons is valid in law?
d. Whether the Ex.A1 promissory note alleged executed in favour of PW1, who is the son of the PW2 scribe/witness and another witness PW3 who is the brother of PW1, who are the interested witnesses and in the absence of any independent witness can Ex.A1 can be treated as validly executed?
8. Among the above substantial questions of law, the question at 'a' is misconceived as the burden of proof with respect to execution of promissory note lies upon the plaintiff but not proof of forgery which is an allegation made by the defendant. It is the plaintiff who approached the Court alleging that the defendant 5 has borrowed an amount of Rs.6,00,000/- to be repaid with interest at 24% per annum and in proof of the said transaction, executed Ex.A1 promissory note. To prove its genuineness, the plaintiff got himself examined as PW1 and its attestor and scribe as PWs 2 and 3 respectively. Once there is evidence on behalf of the plaintiff to prima facie show that there is execution of Ex.A1 promissory note dated 29.12.2009, the onus of proof with respect to forgery shifts to the defendant. On this aspect, there is no deviance on the part of the Trial Court as it gave opportunity to the defendant to send the promissory note to a handwriting expert and permitted examination of the handwriting expert as CW1. Clearly, the burden of proof of forgery was placed on the shoulders of the defendant and therefore, the evidence of DW1/defendant himself and CW1/handwriting expert were permitted on behalf of the defendant but not the plaintiff and therefore, there is no substance in the first substantial question of law.
9. Coming to the substantial question of law at 'b', it pertains to examination of father and son of the beneficiary-plaintiff as scribe and attestor to Ex.A1 promissory note and whether their evidence can be considered in proof of the execution of 6 promissory note. On this count, the Trial Court has bestowed its attention and made observations about all the parties being relatives i.e. the beneficiary being plaintiff, the scribe being father of the plaintiff and attestor being brother of the plaintiff. This fact is not disputed in their cross examination. The relationship between the parties is not in question. However, when money is borrowed within the relatives with family members as attestor and scribe, it need not always be a ground for rejecting their evidence unless there are compelling circumstances to disbelieve the same. The mere factum of examination of family members cannot be a ground to discard their evidence as being interested witnesses. Therefore, this Court does not see any substantial question of law arising from the fact situation of father and brother being scribe and attestor to promissory note on behalf of the lendor in favour of another close relative.
10. Coming to the substantial question of law at 'c' which is about Ex.C1 Expert opinion and the Trial Court discarding the same to arrive at a conclusion that the defendant indeed has executed the promissory note and whether such a finding is allowed in law. It is well settled principle of law that an expert's 7 opinion is a mere opinion which need not be relied upon when there is oral evidence to contradict the same.
11. In the instant case, the expert opinion is contradicted by the witnesses PWs 2 and 3. To consider the evidence of an expert over and above the evidence of oral witnesses, the Trial Court has examined the fact situation wherein it has discussed that all the parties are family members and in case, there is forgery and fabrication of documents to file false suits, what prevented the defendant from giving a police complaint. The silence of the defendant in the face of creation of forged and fabricated document for filing false suit for recovery of money is held against the defendant. In addition to the aforementioned situation, the Trial Court itself examined the disputed signatures and found them to be uncannily similar to the admitted signatures of the defendant. Thus, the Trial Court has taken into consideration the oral evidence of PWs 2 and 3, the failure of defendant to give police complaint against the plaintiff for forgery and fabrication coupled with its own scrutiny of the disputed signature to arrive at a finding that the defendant has signed Ex.A1 promissory note. In that context, the learned counsel for the appellant relied upon judgment of the High Court of Andhra 8 Pradesh at Hyderabad in case between G. Vasu v. Syed Yaseen Sifuddin Quadri 1, wherein, it is held as follows:
"32. ......... in a suit on a promissory note, the case of the defendant as to the circumstances, under which the promissory note was executed is not accepted, it is open to the defendant to prove that the case Set up by the plaintiff on the basis of the recitals in the promissory note, or the case set up in suit notice or in the plaint is not true and rebut the presumption under Section 118 by showing a preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration what so ever. The words "until the contrary is proved" in S.118 do not mean that the defendant must necessarily show that the document is not supported by any form of consideration but the defendant has the option to ask the Court to consider the non-existence of consideration so probable that a prudent man ought, under the circumstances of the Case, to act upon the supposition that consideration did not exist. Though the evidential burden is initially placed on the defendant by virtue of S.118 it can be rebutted by the defendant by showing a preponderance of probabilities, that such consideration as stated in the pronote, or in the suit 1 1986 SCC OnLine AP 147 9 notice or in the plaint does not exist and I once the presumption is so rebutted, the said presumption 'disappears'. For the purpose of rebutting the initial evidential burden, the defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convincing rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities the evidential burden shifts back to the plaintiff who has also the legal burden. Thereafter, the presumption under S. 118 does not again come to the plaintiff's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof looses all its importance."
12. The judgments of the Trial Court and the First Appellate Court show that the burden of proof as well as onus of proof have been considered and a finding is given in favour of the plaintiff and against the defendant. When both the Trial Court and the First Appellate Court have applied their mind to the fact situation as well as evidence on record and arrived at a similar conclusion, this Court does not see any reason to give a finding contrary to the said findings by adopting an alternative view. 10
13. Coming to the substantial question of law at 'd', it is similar to that of substantial question of law at 'b' and the same is rationale is applicable to said question.
14. The scope of Second Appeal under Section 100 of CPC is limited wherein interference can be made into the findings of the Trial Court only when there is consideration of evidence that is not admissible or disregarding of evidence which is relevant. In the instant case, both the Trial Court and the First Appellate Court have considered the entire evidence adduced by both the parties and arrived at concurrent findings with respect to liability of the defendant.
15. The Hon'ble Supreme Court of India in Hemavathi v. V. Hombegowda 2 held that High Court can entertain a regular second appeal purely on a 'substantial' question of law not even a question of law or a question of fact. Further, this Court in case between Syed Abdul Quddus v. K. Vijaya Laxmi 3 has referred to the judgment of the Apex Court in Gurdev Kaur v. Kaki 4, wherein, it is held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court 2 (2025) 5 SCC 442 3 2024 SCC OnLine TS 186 4 (2007) 1 SCC 546 11 and the power under Section 100 CPC is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration. In view of the said decisions, this Court cannot interfere with the factual findings of the Trial Court and First Appellate Court by adopting a different view though a different view is also possible.
16. In view of the foregoing discussion, this Court does not see any reason to interfere with the findings given by the Trial Court and the First Appellate Court by taking a different view of the evidence available on record. Thus, the Second Appeal is liable to be dismissed.
17. In the result, the Second Appeal is dismissed at the stage of admission. No costs.
Miscellaneous applications, if any, pending in this second appeal, shall stand closed.
___________________ RENUKA YARA, J Date: 12.11.2025 GVL 12 THE HON'BLE SMT. JUSTICE RENUKA YARA Second Appeal No.445 of 2025 Date: 12.11.2025 gvl