OS 247 of 2014 1 SCJ/Kadiri
IN THE COURT OF THE SENIOR CIVIL JUDGE :: KADIRI
Present:- Sri.M.Venkateswara Rao,
Senior Civil Judge, Kadiri.
Tuesday, the 11th day of April, 2023
O.S.No.247 of 2014
Between: N.Muralikrishna S/o Nachu Pedda Obulesu, Aged about 44 years, Hindu, Hotel Business, residing at Door No.3-173, Kadiri, Kummaravandlapalli, Kadiri town and mandal …Plaintif
And
Allam Devi W/o A.Reddappa, Aged about 35 years, Hindu, Hotel Business, residing at Door No.8-259-A, Beside Vegetable market, Iqbal road, Kadiri town and mandal, Anantapur district …Defendant
This suit is coming on 28.03.2023 for final hearing before me in the presence of Sri N.S.Gupta, Advocate for the plaintiff and Sri K.Chowdappa, Advocate for the defendant and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1.The plaintif filed the suit against the defendant to recover the suit amount of Rs.3,38,213/- basing on four promissory notes dated 20.11.2011, 22.11.2011, 25.11.2011 and 28.11.2011 together with subsequent interest and costs of the suit.
2.The case of the plaintif, as projected in the plaint, is as follows:
(a)The defendant borrowed from the plaintif a sum of
Rs.49,000/- on 20.11.2011, another sum of Rs.49,000/- on 22.11.2011, another sum of Rs.49,000/- on 25.11.2011 and another sum of
Rs.50,000/- on 28.11.2011 in connection with her hotel business and
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legal necessities agreeing to repay the same with interest @ 24% per annum and executed the promissory notes on the respective dates stated above in favour of the plaintif.
(b)Thereafter, the defendant did not choose to discharge the amount due under the aforesaid four promissory notes despite repeated oral demands of the plaintif and the legal notice dated 27.10.2014. The husband of the defendant namely A.Reddappa acknowledged the legal notice dated 27.10.2014 referred to above.
The defendant is doing hotel business and hence, interest is claimed @ 24% per annum as contracted. The provisions of Act of 4 of 1938 and other debt relief laws are not applicable to the present suit facts.
3.Having received suit summons, the defendant appeared
before the Court through an Advocate. He denied the material
averments of the plaint and filed written statement. He also filed
additional written statement after the plaintif amended the plaint.
4.The case of the defendant, as set out in the written statements, is that:
(a)The suit is bad in law and not maintainable on facts. The defendant never borrowed the alleged amounts from the plaintif and she never executed the alleged suit promissory notes in favour of the plaintif at any point of time. The signatures appear in the above said suit promissory notes do not belong to the defendant. The suit promissory notes are forged and fabricated one and brought into existence with the active collusion of the close associates of the plaintif i.e., the alleged scribe and attestors. The defendant never borrowed such amounts under the aforesaid suit promissory notes and
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thus, the question of making hectic demands for repayment of the same does not arise.
(b) The defendant and her husband are doing labour works in the hotels and also as maid servants in the house to eke out their livelihood. The defendant approached the plaintif when she was in dire need of amounts and requested the plaintif to lend the amount to her.
The plaintif is doing finance business and used to lend amounts under daily collection process. The plaintif is in the habit of obtaining signatures of the borrowers in blank printed promissory notes, used to deduct interest at the time of lending amount itself and collect daily installments from the borrowers. In the like manner, the plaintif lent amount of Rs.50,000/- on two occasions after deducting the interest amount @ 60% per annum and obtained the signatures of the defendant on two blank printed promissory notes as security. The defendant paid the daily installments to the plaintif since the date of such borrowing. The plaintif endorsed the receipt of installments from the defendant in a note book. After completion of payment of such installments, the defendant demanded the plaintif to return the blank promissory notes which contains her signatures but, the plaintif did not return the same and demanded her to pay some more amounts towards full discharge of the debts. Since the defendant paid entire installments to the plaintif, she declined to pay the amounts as demanded.
(c)On account of the same, misunderstandings arose between the plaintif and the defendant and in view of the same, the plaintif
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forged the signatures of the defendant and fabricated the suit promissory notes in collusion with the alleged attestors and scribe and filed the present unjust suit. Therefore, the defendant prayed to dismiss the suit with costs.
5.As the parties to the suit have not resolved their controversies and arrived at an amicable settlement at the stage of hearing under section 89 of CPC, having perused the pleadings and documents on record, the issues are settled on 25.03.2015 as follows:
(1) Whether the plaintiff is entitled for recovery of the suit amount as prayed for? (2) To what relief?
6.During the trial, on behalf of the plaintif, the plaintif himself was examined as PW-1 and got exhibited Ex.A-1 to Ex.A-7. On behalf of the defendant, DW-1 to DW-3 were examined and Ex.B-1 to
Ex.B-4 were marked during the course of cross examination of PW-1.
7.I have heard the arguments of the both sides and gone through the entire evidence brought on record.
ISSUE No.(1): Whether the plaintiff is entitled for recovery of
the suit amount as prayed for?
8.The learned plaintif’s counsel argued that the defendant borrowed amounts from the plaintif as recited in Ex.A-1 to Ex.A-4 and later, she refused to discharge the same despite constant oral demands of the plaintif and legal notice vide Ex.A-5 and thus, the plaintif was constrained to file the suit against the defendant to recover the suit amount. He further argued that the defendant took inconsistent pleas in the written statement as evident from the averments of the written statement and thus, in view of the
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inconsistent pleas and versions of the defendant, the contentions of the defendant cannot be upheld.
9.He further argued that the oral evidence of PW-1 coupled with Ex.A-1 to Ex.A-7 establishes the suit claim of the plaintif since the evidence of PW-1 is consistent and stood to cross examination and the answers elicited in the cross examination of DW-1 to DW-3, supports and corroborates the evidence of the plaintif and thus, the evidence brought on record establishes and proved that the suit promissory notes under Ex.A-1 to Ex.A-4 are true, valid and binding on the defendant.
10.The learned defendant’s counsel argued that the defendant never borrowed any amounts under Ex.A-1 to Ex.A-4 and the alleged
Ex.A-1 to Ex.A-4 are forged and fabricated document brought into existence to cause loss to the defendant. He further argued that the except the self-serving statements of PW-1, there is no cogent and reliable evidence to establish the suit claim of the plaintifand the evidence of DW-1 to DW-3 establishes that there is no truth in the plaint allegations and the evidence of PW-1 and thus, the plaintif is not entitled to the suit claim as claimed in the plaint. He further argued that the in the light of the specific denial of the signatures in Ex.A-1 to
Ex.A-4, the burden lies upon the plaintif to establish that the signatures in Ex.A-1 to Ex.A-4 are that of the defendant and in the absence of such evidence, the contentions of the plaintif are not at all acceptable and tenable.
11.In view of the rival contentions, I have gone through the evidence brought on record. PW-1 and DW-1 to DW-3 filed their
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respective chief examination affidavits in lieu of their examination in chief. PW-1 reiterated the material averments of the plaint in the chief examination affidavit. In similar manner, DW-1 reiterated the material averments of the written statement in the chief examination affidavit.
DW-2 and DW-3 stated in their chief examination affidats that the plaintif is doing money lending business and the defendant never borrowed the amounts from the plaintif under Ex.A-1 to Ex.A-4 and supported the evidence of DW-1 in all material aspects,
12.As per the oral evidence of PW-1, the defendant borrowed from the plaintif Rs.49,000/- under Ex.A-1 on 20.11.2011, Rs.49,000/- under Ex.A-2 on 22.11.2011, Rs.49,000/- under Ex.A-3 on 25.11.2011 and Rs.50,000/- under Ex.A-4 on 28.11.2011. I have gone through Ex.A- 1 to Ex.A-4. The contents thereof go to show that A.Devi borrowed from the plaintif a sum of Rs.49,000/- under Ex.A-1 on 20.11.2011,
Rs.49,000/- under Ex.A-2 on 22.11.2011, Rs.49,000/- under Ex.A-3 on 25.11.2011 and Rs.50,000/- under Ex.A-4 on 28.11.2011. The borrower signed on the revenue stamps and there is a specific endorsement to the efect that the borrower received consideration mentioned in the instruments from the lender. The recitals of Ex.A-1 to Ex.A-4, therefore, corroborate and support the oral evidence of PW-1 as regards the transactions under Ex.A-1 to Ex.A-4.
13.It is the specific contention of the defendant that the plaintif did not choose to examine either scribe or attestors of Ex.A-1 to Ex.A-4 so as to substantiate the contentions of the plaintif and the self-serving statements of PW-1 are not reliable to arrive at just decision. As seen from the recitals of Ex.A-1 to Ex.A-4, one Krishna and
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V.Mujeeb stood as attestors to Ex.A-1 to Ex.A-4 and one P.V.Ramana scribed the same. The record discloses that the plaintif did not adduce the evidence of either the attestors or scribe of Ex.A-1 to Ex.A-4. On behalf of the defendant, one of the attestors of Ex.A-1 to Ex.A-4 was examined as DW-3.
14.The learned plaintif’s counsel argued that the suit promissory notes are not compulsorily attestable documents and thus, the non-examination of the attestors do not shatter the evidence of
PW-1 and the case of the plaintif. It is the specific contention of the learned plaintif’s counsel that where the defendant admitted the signatures and execution of the Negotiable Instruments certain presumptions are to be drawn under Section 118 of the Negotiable
Instrument Act and in such circumstances, onus of proof shifts to the defendant who contends the suit promissory notes as forged and fabricated one.
15.No doubt, as per Section 118 of the Negotiable Instrument
Act, where the execution of a negotiable instruments is admitted or proved, the presumption that the consideration mentioned in the instrument was passed from the lender to the borrower and the instrument was executed on the date appears thereon have to be drawn in favour of the holder of the such negotiable instrument. The said presumption under Section 118 of the Negotiable Instrument Act are rebuttable presumption and the defendant, who denies the recitals of Ex.A-1 to Ex.A-4, has to establish the versions he pleaded in the written statement once the execution of Ex.A-1 to Ex.A-4 is established and proved.
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16.The learned plaintif’s counsel highlighted the admissions in the written statement that the defendant borrowed from the plaintif a sum of Rs.50,000/- on two occasions and obtained her signatures on two blank promissory notes as security. The said admission shows that the plaintif got two promissory notes containing the signatures of the defendant. It is the contention of the defendant that the plaintif got forged the signatures of the defendant as he got acquaintance with the signatures of the defendant found on the above said two promissory notes and brought into the present suit to have unjust enrichment and cause loss to the defendant.
17.The learned defendants’ counsel argued thatthe defendant borrowed Rs.50,000/- from the plaintif on two occasions on daily collection basis and the plaintif obtained two signed blank promissory notes from her as security and later she repaid the said amount. In order to substantiate the said contention, reliance is placed reliance on
Ex.B-1 to Ex.B-4. The learned plaintif’s counsel argued that Ex.B-1 to
Ex.B-4 have no relevance to the suit transactions and thus, the same are not much useful and significant to adjudicate the matter. In view of the rival contentions, I have gone through Ex.B-1 to Ex.B-4.
18.It is an indisputable fact that Ex.B-1 to Ex.B-4 are marked through PW-1 through confrontation. In the cross examination, PW-1 admitted that the entries in Ex.B-1 to Ex.B-4 but testified the same are in connection with hand loans and the said entries belong to the loan transactions between the plaintif and the defendant as well as the plaintif and the husband of the defendant. As per the evidence of PW- 1, the entries in Ex.B-1 to Ex.B-4 are not relevant to the present suit
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transactions but the same belong to the other hand loan transactions between the plaintif, the defendant and her husband.
19.As seen from the contents of Ex.B-1, the account is run in the name of Reddappa Hotel and the date of transaction is shown as 04.10.2011 and amount lent is shown as Rs.20,000/-. The entries in
Ex.B-1 show the transactions therein took place from 06.10.2011 to 06.05.2012 and the same reveals the discharged amounts and interest accrued on the balance amount. The entries in Ex.B-2 show the name of Reddappa at the top of the page and the entries run from the date 05.03.2012 to 01.07.2012. The entries in Ex.B-3 go to show that the amounts were paid from 03.09.2012 to 12.11.2012 and the name of one Devi is shown at the top of the page. The name of one Azmu is found place and the transactions from 10.02.2013 to 15.09.2013 are found place in Ex.B-5 (sic Ex.B-3) in addition to the above referred part payments from 03.09.2012 to 12.11.2012. The entries in Ex.B-4 show the transactions between 05.10.2011 to 18.10.2011 and the name of one Reddappa and an amount of Rs. 50,000/- with date 18.07.2011 is found place at the top of the page. It appears from the entries that
Reddappa borrowed the said amount of Rs.50,000/- on 18.07.2011 and made some part payments vide other entries therein.
20. In cross examination, DW-1 testified that she has financial transactions with the plaintif since past 10 years and as per contents of Ex.B-1, an amount of Rs.20,000/- was lent to the defendant. DW-1 made categorical admissions that her husband’s name i.e., Reddappa is referred to in Ex,B-2 and she received the amount of Rs.66,150/- referred to in EX.B-2 though her husband’s name i.e., Reddappa is
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referred in Ex.B-2. DW-1 made further definite and congent admissions that the entries under EX,B-2 and Ex,B-3 relate to the above referred hand loan debt of Rs.66,150 and Azmu paid the amounts under Ex.B- 3(sic Ex.B-5), on her behalf, to the plaintif. The evidence of DW-1 further discloses that the defendant received the amount of
Rs.50,000/- as recited in Ex.B-4 though the name of her husband is referred to in Ex.B-4.
21.Therefore, the co-joint evidence of PW-1 and DW-1 establishes that there are several hand loan transactions between the plaintif and the defendant and the name of the defendant’s husband/Reddappa is refered to in EX.B-2 and Ex.B-4, she received the amount of Rs.66,150/- and Rs.50,000/- as hand loans. In the light of the above discussed cogent and unequivocal admissions of DW-1 and unshaken evidence of PW-1 establishes that the transactions covered under Ex.B-1 to Ex.B-4 are unconnected to the present suit transactions under Ex.A-1 to Ex.A-4. In addition to the same, the suit promissory notes are dated from 20.11.2011 to 28.11.2011 whereas the entries in Ex.B-3 go to show the same run from 03.09.2012 to 12.11.2012. Though PW-1 admitted the entries in Ex.B-1 to Ex.B-4 but, it is the specific evidence of PW-1 that the same are with reference to the other hand loan transactions but the same are not relevant to the present suit Ex.A-1 to Ex.A-4 promissory note transactions.
22.As the defendant pleaded that the entries in Ex.B-1 to Ex.B- 4 show that the defendant discharged the amounts to the plaintif in connection with the two promissory notes referred to in the written statement, the burden lies upon the defendant to establish the same.
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However, the defendant could not discharge the said burden and show the entries in Ex.B-1 to Ex.B-4 have much relevance to the present suit transactions and the same discards the evidence of PW-1 and contents of Ex.A-1 to Ex.A-4.
23.Therefore, having considered the entries in Ex.B-1 to Ex.B-4 coupled with the admissions of DW-1 and the respective dates found therein, the Court holds that the defendant could not establish that the entries in Ex.B-1 to Ex.B-4 are relevant to the present suit transactions.
Hence, the court holds that Ex.B-1 to Ex.B-4 have no relevance to the present suit transactions. Thus, the same renders no support to the contentions of the defendant.
24.The learned defendant’s counsel canvassed that the plaintif did not choose to examine either the attestors or the scribe of the disputed Ex.A-1 to A-4 since there is no truth in the version of the plaintif and as such, the defendant examined one of the attestors as
DW-3 and the evidence of DW-3 shatters and disproves the evidence of
PW-1 and contentions of the plaintif. In answer, the learned plaintif’s counsel argued that DW-3 is none other than the brother of the defendant and he gave evidence in support of the defendant.
25.It is an admitted fact that one of the attestors of Ex.A-1 to
Ex.A-4 was summoned at the instance of defendant and he was examined as DW-3. He testified in the chief examination that the plaintif carries on money lending business as daily finance, that when a person borrows a sum of Rs.10,000/- from the plaintif, he gives
Rs.9,000/- to the borrower and he retains Rs.1,000/- towards interest amount, and the borrower has to discharge the amount in installment
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i.e.,Rs.100/- per day for three months. The evidence further discloses that he signed four promissory notes vide Ex.A-1 to Ex.A-4 and he identified the signatures therein as that of him.
26.As per the evidence of DW-3, he signed all Ex.A-1 to Ex.A-4 at the same time about seven years back and when he signed those documents, the same are unfilled and the same contains the stamps affixed thereon but the signatures of the defendant are not found thereon. The evidence further reveals that when DW-1 singed Ex.A-1 to
Ex.A-4 the defendant was not present and the defendant neither executed Ex.A-1 to Ex.A-4 nor received consideration amounts from the plaintif in the presence of DW-1. The evidence further discloses that
DW-1 has no acquaintance with the alleged scribe and other attestor of
Ex.A-1 to Ex.A-4 and he does know them. Therefore, the ultimate evidence of DW-3, in chief examination, shows that the defendant did not borrow any amount from the plaintif in the presence of DW-3 and the defendant did not execute any promissory notes in favour of the plaintif in the presence of DW-3.
27.DW-3 is none other than the younger brother of the defendant. In cross examination, he admitted the said fact. In the written statement, the defendant pleaded that the plaintif, the attestors and scribe colluded together and brought into existence Ex.A- 1 to Ex.A-4 to cause loss to the defendant. As per the version of the defendant, DW-3 is the close associate of the plaintif but he gave evidence against the plaintif and own brother of the defendant.
28.The learned plaintif’s counsel argued that in view of the close relationship with the defendant, DW-3 gave evidence against the
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plaintif and in favour of the defendant so as to help the defendant. As stated above, it is an admitted fact that DW-3 is none other than younger brother of defendant. In the normal circumstances and in the natural course of business, the plaintif obtains the signatures of the loyals of the plaintif as witnesses and no prudent man obtains the signatures of the close relatives/associated of the borrower if the transactions are created one and fabricated one. In the present case on hand, DW-3 is the attestor of Ex.A-1 to Ex.A-4. If Ex.A-1 to Ex.A-4 are forged and fabricated documents, DW-3 would have not signed the same. The alleged evidence of DW-3 that the name of the defendant is not found on Ex.A-1 to Ex.A-4 when he signed the same is not acceptable and tenable in light of the admissions of DW-3 in the cross examination and the circumstances placed before the Court.
29.In the cross examination, DW-3 testified that he came to know about Ex.A-1 to Ex.A-4 in 2017. He made an admission that no person including him signs a negotiable instrument without perusing the contents the instrument or questioning thereof before he put signature thereon. However, in the presence case, he testified that he signed Ex.A-1 to Ex.A-4 even the same are unfilled and the signature of the borrower or scribe or other attestor are not found thereon. If the version of DW-3 is found true, he would have taken steps against the plaintif soon after he had got knowledge of Ex.A-1 to Ex.A-4 but he neither issued a legal notice nor lodged a police report stating the plaintif forged and fabricated Ex.A-1 to Ex.A-4 and used the signature of DW-3 on those documents as if he put the signature on the respective dates and stood as a witness to the said transactions. The
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silence and the admissions referred to above creates doubts in the trustworthiness of DW-1.
30.It was suggested to DW-3 that the defendant borrowed the amounts from the plaintifs under Ex.A-1 to Ex.A-4 in the presence of
DW-3 on the respective dates found thereon but DW-3 deposed falsehood in support of the defendant and against the plaintif since the defendant is the elder sister of DW-3. The answers elicited in the cross examination, discredit the credentials and trustworthiness of DW-
3. In the said circumstances and in view of the close relationship between DW-3 and the defendant, the evidence of DW-3 is found not reliable and believable and thus, no reliance can be placed on the evidence of DW-3 to arrive at just findings.
31.The defendant further examined an independent witness as
DW-2 in order to substantiate the contentions she raised in the written statement. The evidence of DW-2 shows that he is the owner of the hotel wherein the defendant and her husband are working as maids. As per the evidence of DW-2, the defendant used to borrow amounts from the plaintif and DW-2 used to pay amounts to the plaintif on behalf of the defendant and he paid Rs.38,000/- to the plaintif towards the discharge of the debt of the defendant owed to the plaintif. The evidence of DW-2, as stated in the chief examination affidavit, supports entries made in the name of DW-2 in Ex.B-3 (sic Ex.B-5). DW-1 admitted in cross examination that DW-2 made said payments on her behalf and the same in connection with the hand loan transaction.
32.In the cross examination, DW-2 testified that he is not aware of the suit promissory note transactions but pleaded that the
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plaintif used to come to the hotel to collect amounts from the defendant. He further testified that there are several financial transactions between the plaintif and the defendant since past five to six years. He further testified that he is not aware whether the defendant used to borrow amounts from the plaintif executing the promissory notes. The answers elicited in the cross examination of DW- 2 show that DW-2 has no knowledge regarding the suit transactions though he is aware of the oral/hand loan transactions between the plaintif and the defendant. The plaintif as well as the defendant admitted in their cross examinations that there are hand loan transactions between the plaintif and the defendant since past 10 years. In the light of the said oral/hand loan transactions between them, the evidence of DW-2 is not much significant since he testified in the categorical words that he is not aware of the transactions under
Ex.A-1 to Ex.A-4 to arrive at conclusion whether the same are fabricated or genuine one.
33.The evidence of DW-1 discloses that one Anju is the owner of the hotel. DW-1 made a categorical admission that the payments referred to above in the name of DW-2 are in connection with the amount of Rs.66,150/- she received from the plaintif as hand loan though the same is referred to in Ex.B-2 in the name of her husband namely Reddappa. The entries in Ex.B-2 and Ex.B-3 are part payments as regards the hand loan transaction of Rs.66,150/-. She further testified that she received Rs.50,000/- under Ex.B-4 as hand loan and she made part payments in that regard. Therefore, in view of the evidence of DW-1 and DW-2, the evidence of DW-2 is helpful to show
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that there are financial transactions between the plaintif and the defendant but the evidence of DW-2 is not much relevant and useful to show that the transactions under Ex.A-1 to ExA-4 are forged and fabricated one. In such circumstances, the evidence of DW-2 renders no help to the contentions of the defendant.
34.Therefore, the admissions of DW-1 in the cross examination establish that the entries in Ex.B-1 to Ex.B-4 are not at all relevant to the present suit transactions under Ex.A-1 to Ex.A-4 though the same relate to the hand loan transactions between the plaintif and the defendant. As stated above, Ex.B-1 to Ex.B-4 have no relevance to the present suit transactions under Ex.A-1 to Ex.A-4. In such circumstances, the contention of the learned defendant’s counsel that the entries in Ex.B-1 to Ex.B-4 falsify the version of the plaintif is not at all acceptable and tenable.
35.The learned defendant’s counsel argued that as the defendant denied the execution of Ex.A-1 to Ex.A-4 and pleaded the same as forged and fabricated one, the plaintif ought to have taken steps to send the disputed Ex.A-1 to Ex.A-4 to the expert to establish the disputed signatures thereon are that of the defendant and the failure of the plaintif to obtain expert opinion makes the disputed Ex.A- 1 to Ex.A-4 doubtful and thus, no reliance can be placed thereon. Per contra, he learned plaintif’s counsel argued that in view of the admissions of the defendant and presumptions under 118 of the
Negotiable Instrument Act, the burden lies upon the defendant that the disputed Ex.A-1 to Ex.A-4 are forged and fabricated one. He further argued that the defendant moved an application under section 45 of
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the Indian Evidence Act but she did not pursue it, and thus, there is no force in the argument of the learned defendant’s counsel.
36. In the light of the aforesaid rival contentions, it is essential to refer here that the defendant filed an application section 45 of the
Indian Evidence Act vide IA 273 of 2017 to send the disputed promissory notes to the expert and the same was allowed directing the petitioner i.e., the defendant herein to produce contemporaneous admitted signatures within the reasonable time of 15 days but the defendant did not choose to prosecute the said IA and no steps have been taken to get documents send to the expert seeking expert opinion. In such circumstances, the contention of the defendant that the plaintif has to take steps to prove the execution of Ex.A-1 to Ex.A-4 is not acceptable in view of the presumptions under Section 118 of the
Negotiable Instrument Act and the admissions elicited in the cross examination of DW-1 to DW-3.
37.The learned defendant’s counsel argued that the plaintif is a money lender and thus, the transactions under Ex.A-1 to Ex.A-4 are void and cannot be read in evidence. He further argued that the transactions under Ex.A-1 to Ex.A-4 are forged and fabricated one and thus, the plaintif is not entitled to claim amount there under. There is no cogent and acceptable evidence on record to show that the plaintif is carrying on money lending business. No scrap of paper is brought on record to show that the plaintif is carrying on the said money lending business. Just because the plaintif lends amount to one or two persons, the same does not amount to money lending business. Even if at all the plaintif lends the amounts to others on interest amount, the
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plaintif is liable to be penalized as per the provisions of the Income Tax
Act but, the said transaction cannot be held as void. In view of the same, the contention of the defendant is not acceptable and tenable.
38.The learned plaintif’s counsel argued that the defendant admitted that she put signatures on two promissory notes and delivered the same to the plaintif as security. Under Section 20 of the
Negotiable Instrument Act, if a incomplete and partially completed negotiable instrument is delivered to a person, the holder can make it a complete instrument and the person, who executes such instrument, prima facie authorities the holder thereof to mention the consideration amount up to the amount permissible limit of the stamps affixed thereon. In the cross examination of PW-1, he denied the suggestion that he obtained the signed promissory notes from the defendant and having aware of the pattern of the signatures, the plaintif created the suit promissory notes. In such circumstances, the plaintif need not fabricate and brought into existence four promissory notes and instead, he can avail the promissory notes containing the signatures of the defendant to mention the huge amount and make it a complete instrument. In the said circumstances, the contention of the defendant that the plaintif got forged the signatures of the defendant with the aid of the signatures available on the promissory notes obtained from the defendant as security is not acceptable and tenable.
39. The suggestions put to PW-1 reveal that the defendant disputes the signatures in Ex.A-1 to Ex.A-4. In such circumstances, in view of the plea the defendant took in the written statement, the defendant has to take steps to establish that the signatures in Ex.A-1
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to Ex.A-4 are not that of the defendant. However, the defendant did not choose take recourse in that aspect. The defendant could not establish the plea he took in the written statement despite the fact the plaintif established the execution of Ex.A1 to Ex.A-4.
40.The learned plaintif’s counsel argued that the plaintif got issued a legal notice to the defendant and the same was served on the husband of the defendant but the defendant did not choose to discharge amounts due under Ex.A-1 to Ex.A-4 or cause reply to the said legal notice. In order to substantiate the said contention, the plaintif exhibited legal notice as Ex.A-5, the postal receipt as Ex.A-6 and postal acknowledgment as Ex.A-7. I have gone through Ex.A-5 to
Ex.A-7. The contents of Ex.A-5/legal notice go to show that the plaintif got issued the said legal notice to the defendant calling upon her to discharge amount due under the suit promissory notes. The plaintif referred to all suit promissory note transactions in the legal notice.
There is no dispute as regards the address mentioned in the legal notice. Ex.A-6/postal receipt shows dispatch of notice to the address mentioned in Ex.A-5. The postal acknowledgment contains the signature of one Reddeppa as recipient of legal notice vide Ex.A-7.
41.The learned defendant’s counsel argued that as the notice was not served on the person of the defendant no presumption can be drawn as regards the service of notice and the burden of proof lies upon the plaintif to examine the postal authorities to show the service of notice. As stated above, the notice was served on Reddeppa though it was addressed to the defendant. The evidence brought on record establishes that Reddeppa is none other than the husband of the
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defendant. The material brought on record does not show that there are disputes between the defendant and her husband. In such circumstances, though the acknowledgment served on the husband of the defendant but on that ground alone, the contention of the plaintif cannot be rejected and thrown out. The evidence of PW-1 coupled with
Ex.A-5 to Ex.A-7 establishes that the plaintif got issued the legal notice to the defendant wherein he narrated all the transactions under Ex.A-1 to Ex.A-4. In such circumstances, the failure of the defendant to dispute the transactions through a reply legal notice draws an adverse inference against the version of the defendant.
42.The learned defendant’s counsel argued that as the defendant denied the execution of Ex.A-1 to Ex.A-4 and pleaded the same as forged and fabricated documents, the burden lies upon the plaintif to establish the same but the plaintif did not choose to send the documents to the handwriting expert to obtain the opinion of the expert to establish the signatures found in Ex.A-1 to Ex.A-4 are that of the defendant. As stated above, though the plaintif has not preferred any petition to send the disputed documents to the expert but the defendant moved such application but, later he did not choose to prosecute the same. In such circumstances, the contention of the defendant as regards the failure of the plaintif to obtain the expert opinion is not acceptable and tenable.
43.The evidence of PW-1 coupled with answers elicited in the cross examination of DW-1 to DW-3 establishes that the plaintif lent amounts to the defendant under Ex.A-1 to Ex.A-4 and the defendant, having received consideration there under, endorsed her signatures on
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Ex.A-1 to Ex.A-4. The evidence brought on record establishes and proved that the defendant received the consideration under Ex.A-1 to
Ex.A-4 and she signed the same. In such circumstances, the presumptions under Section 118 of Negotiable Instrument Act comes into operation. In view of such rebuttal presumption, the onus of proof shifts to the defendant to establish that the suit promissory notes are forged and fabricated one. However, the defendant could not substantiate the same and could not establish the contentions she raised in the written statement.
44.As stated above, in the written statement, the defendant pleaded that the attestors and scribe of Ex.A-1 to Ex.A-4 are the henchmen of the plaintif but it is established and proved that DW-3 is none other than the own brother of the defendant and the answers elicited in cross examination of DW-3 make DW-3 as an unreliable witness. The cogent and definite admissions elicited in cross examination of DW-1 establish that Ex.B1 to B-4 have no relevance to
Ex.A-1 to Ex.A-4. In view of the material evidence brought on record and the circumstances placed before the Court, the Court holds that the evidence of PW-1 is found reliable and acceptable and the evidence gets corroboration from the contents of Ex.A-1 to Ex.A-4. The evidence of PW-1 is stood to cross examination and nothing was elicited in the cross examination of PW-1 to disprove the suit promissory notes transactions under Ex.A-1 to Ex.A-4.
45.Whereas, the evidence of DW-1 to DW-3 is found to be doubtful and no relevance can be placed on their evidence. The evidence of DW-2 is not helpful to the version of the defendant, since
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he pleaded ignorance of the transactions between the plaintif and the defendant under the promissory notes whereas the answers elicited in the cross examination of DW-1 and DW-3 show that there is no trustworthiness in their evidence and the answers elicited in the cross examination discredited their credentials and trustworthiness.
Therefore, their evidence is not unblemished one to place reliance.
46.Therefore, from the aforesaid discussion and the presumptions under Section 118 of Negotiable Instrument Act, the
Court holds that the plaintif could able to establish the execution of
Ex.A-1 to Ex.A-4 on the dates appears thereon and the defendant received consideration there under from the plaintif. The version of the defendant, as pleaded in the written statement, is proved to be unreliable since the defendant could not substantiate the said contentions through adducing reliable and acceptable evidence. In such circumstances, the Court holds that the transactions under Ex.A-1 to Ex.A-4 are true, valid and the same are binding on the defendant.
Hence, the plaintif is entitled to the suit claim. Therefore, the issue is answered accordingly in favour of the plaintif and against the defendant.
ISSUE No.(ii):To what relief?
47.In the result, the suit is decreed with costs for suit amount of Rs.3,38,213/- (Rs.84,247/- + Rs.84,182/- + Rs.84,084/- +
Rs.85,700/-) with subsequent interest @ 12% per annum from the date of suit to the date of decree and thereafter, at 6% per annum from the date of decree till the date of realization on the sum adjudged (principal amounts).
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Dictated to the Stenographer Grade II, transcribed by him, corrected
and pronounced by me in open Court this the 11 th day of April, 2023
SENIOR CIVIL JUDGE
KADIRI
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF DEFENDANT
PW-1N.Muralikrishna DW-1Allam Devi DW-2K.Azamthulla @ Azmu DW-3M.Krishnamurthy @ Krishna
DOCUMENTS MARKED FOR
PLAINTIFF DEFENDANT
Ex.A-1Suit promissory note forEx.B-1Relevant entry in pocket Rs.49,000/- executed bynote book the defendant in favour of the plaintif dated 20.11.2011 Ex.A-2Suit promissory note forEx.B-2Relevant entry in pocket Rs.49,000/- executed bynote book the defendant in favour of the plaintif dated 22.11.2011 Ex.A-3Suit promissory note forEx.B-3Relevant entry in pocket Rs.49,000/- executed bynote book the defendant in favour of the plaintif dated 25.11.2011 Ex.A-4Suit promissory note forEx.B-4Relevant entry in pocket Rs.50,000/- executed bynote book the defendant in favour of the plaintif dated 28.11.2011 Ex.A-5Office copy of notice issued to the defendant
dated 27.10.2014
Ex.A-6Original postal receipt for sending original of Ex.A-5 dated 28.10.2014 Ex.A-7Postal acknowledgment of the defendant
S.C.J