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IN THE COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE,
VISAKHAPATNAM
Present: Smt. Sunkara Sridevi, I Additional Senior Civil Judge,
Monday, this the 22nd day of June, 2020
ORIGINAL SUIT NO.31/2016
Between:
Sri Uggina Durga Prasad, S/o Musala Naidu, Hindu, aged 36 years,
Welder, residing at D.No.49-24-27, Ramakrishna Nagar, Visakhapatnam- 16.
..Plaintiff
And:
1. Sri Gonnabathula Ananda Rao, S/o Narasimha Rao, Hindu, aged about 38 years, Employee in Visakhapatnam Port Trust, E.No.060757, Assistant
Supervisor, Cargo Handling Division, T.M.Department, Visakhapatnam
Port Trust, residing at D.No.1/52/1, Sector-I, Plot No.41, MVP Colony,
Visakhapatnam.
2. Sri Katakam Ravi Kumar, S/o Lakshmana Rao, Hindu, aged about 43 years, working as Office Subordinate, E.No.1291, Andhra Pradesh
Pollution Control Board, Regional Office, Plot No.8, Ring Road,
Simhadrinagar, Vizianagaram-535002.
3. Smt.Ganagala Satyavathi, W/o Jagannadham, Hindu, aged 43 years, residing at D.No.33-25-10/1, Eethapeta Road, Allipuram, Visakhapatnam.
... Defendants
This suit coming on 10-03-2020 for final hearing before me in the presence of Sri B.K.Naidu, Advocate for the plaintiff; and of Sri B.V.Appa Rao, Advocate for 2nd defendant; and of Sri N.S.V.Prasada Rao, Advocate for 3rd defendant; 1st defendant remained exparte; and the matter having stood for consideration till this day, this Court delivered the following:
JUDGMENT
1.This is a suit filed for recovery of amount of Rs.6,87,466/- basing on the foot of a promissory note.
2.The brief averments of the plaint are as follows:-
(i) Defendants 1 to 3 jointly borrowed an amount of Rs.4,00,000/- 2 from the plaintiff on 4.07.2012 for the purpose of their family necessities and executed a promissory note in favour of the plaintiff on the same day. The agreed rate of interest is @ 24% p.a., Subsequently on repeated demands made by the plaintiff, they did not choose to repay any amount and postponed the same on one or other pretext. Finally, when the plaintiff demanded them for repayment, 1st defendant issued a cheque for Rs.1,50,000/- on 25.01.2013 drawn on State Bank of India, Rednam
Gardens, Visakhapatnam and the 2nd defendant for a sum of
Rs.1,50,000/- drawn on State Bank of Hyderabad, Waltair Road, and 3rd defendant for Rs.1,50,000/- drawn on Bank of India, Visakhapatnam towards full satisfaction of the principal and interest covered under suit promissory note. The plaintiff presented all the three cheques for collection on 6.02.2013 through his banker but they were returned with an endorsement “FUNDS INSUFFICIENT” and on that he got filed complaints under Sections 138 and 142 of Negotiable Instruments Act, which are pending against the defendants before Special Magistrate
Courts at Visakhapatnam. Hence the present suit. The defendants are not agriculturists hence, they are not entitle to the Debt Relief Laws.
3.The brief averments of the written statement filed by 2nd defendant are as follows:-
(i)He refuted all the allegations in the plaint and contended that the plaintiff filed a CC on the file of Special Magistrate Court-III,
Visakhapatnam in CC.No.16/2015 under Section 138 of Negotiable
Instrument Act and it was dismissed on merits. Aggrieved by the said
Calendar and Judgment, he also preferred an Appeal before the Hon‘ble
Metropolitan Sessions Judge, Visakhapatnam vide Crl.A.No.38/2016 and it was also dismissed on 12.09.2017. The plaintiff forged and fabricated the alleged promissory note as such, there is no legally enforceable debt 3 which was proved in CC No.16/2015. The plaintiff by suppressing the said fact filed the present suit for illegal gain and to cause wrongful loss to the 2nd defendant.
(ii)The contention of the 2nd defendant lastly shows that he never borrowed any amount from any one at any point of time and he is not liable for any amount under the present suit. There is no cause of action and the plaint is time barred, hence, it is liable to be dismissed.
4.The brief averments of the written statement filed by 3rd defendant are as follows:-
(i)She denied all the allegations in the plaint and contended that plaintiff is unknown to her and he in collusion with the third parties fabricated the suit promissory note for illegal benefits. There is no cause of action and the plaintiff has no right to claim anything from the 3rd defendant hence, the suit is liable to be dismissed.
5.Basing on the above pleadings the following issues are settled for trial:-
1. Whether the suit promissory note is true, valid and supported by consideration and binding on the defendants?
2. Whether the plaintiff is entitled to recover the suit amount as prayed for?
3. To what relief?
6(i)On behalf of the plaintiff, PW1 and PW2 are examined. Ex.A1 is marked. PW1 is U.Durga Prasad. PW2 is B.Ramesh. Ex.A1 dated 4.07.2012 certified copy of promissory note.
(ii)On behalf of the 2nd defendant, DW1 is examined. On behalf of 3rd defendant, DW2 is examined and no documents are marked. DW1 is
K.Ravikumar. DW2 is G.Satyavathi.
7.Heard the counsel for plaintiff and counsel for defendants 2 and 3.
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(i)Counsel for the plaintiff in his arguments submitted that the admission of the defendants about their signatures on the disputed promissory note is contrary to the pleadings invariably place the burden on the defendants. Since they failed to rebut the presumptions, the plaintiff is entitled to get the amount as prayed for.
(ii)But on the other hand, the counsel for the defendants 2 and 3 in his arguments submitted that there is no corroboration in the evidence of PW1 and PW2 to discharge the burden of the plaintiff to prove the execution of Ex.A1. The evidence of plaintiff’s side witnesses shows the place of transaction is different and passing of consideration is suspicious. According to the defense, the 3rd defendant who is an illiterate unable to know the contents mistakenly admitted her signature.
8.ISSUE NO.1:-
The contention of the plaintiff basing on the evidence of PW1 and
PW2 coupled with Ex.A1 is that defendants 1 to 3 jointly borrowed an amount of Rs.4,00,000/- from him on 4.7.2012 for their family necessities executed Ex.A1 original promissory note, subsequently issued cheques in favour of the plaintiff on 25.01.2013 towards full satisfaction of the debt covered under the promissory note, when presented for collection they were dishonoured for the reason insufficient funds. Though the plaintiff filed complaints under the provisions of Negotiable Instruments Act against the defendants 2 and 3 filed the present suit basing on the promissory note. But on the other hand, the contention of the 2nd defendant basing on the evidence of
DW1 is total denial. The contention of the 3rd defendant basing on her written statement is total denial. However, her evidence as DW2 shows the admission of 3rd defendant’s signature on Ex.A1 promissory note as one of the executant.
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9.Since the initial contention of the defendants 2 and 3 basing on their pleadings is total denial with a plea of fabrication the burden is initially on the plaintiff in order to prove his contention that the promissory note dated 4.7.2012 executed by the defendants 1 to 3 is true, valid and supported by consideration hence the same is binding on the defendants.
10.Let us see the evidence of plaintiff side whether shows any material in his favour to prove his contention that Ex.A1 promissory note is supported by consideration.
11.Before adverting to the evidence of plaintiff side witnesses let us see the admitted facts in the present suit. They are that the plaintiff herein as a complainant filed a cheque bounce case against the 2nd defendant before III Special Magistrate, Visakhapatnam in CC
No.16/2015 and the same was ended in acquittal. It is another admitted fact that aggrieved by the said Calendar and Judgment plaintiff herein as complainant therein preferred a Criminal Appeal 38/2016 on the file of
Hon’ble I Additional District Judge, Visakhapatnam and the same was
also dismissed. It is another admitted fact that the plaintiff as a complainant also filed another cheque bounce case against the 3rd defendant in CC 147/2014 on the file of I Special Magistrate Court,
Visakhapatnam which was ended in conviction. Aggrieved by the said
Calendar and Judgment, 3rd defendant preferred a Criminal Appeal
No.394/2017 on the file of Hon’ble IV Additional District Judge’s Court,
Visakhapatnam which is pending.
12.Now let us see the evidence of plaintiff side witnesses whether discharged the burden of plaintiff or not. The first witness is none other than the plaintiff as PW1. He filed his chief affidavit reiterating the contents of the plaint. Through this witness the certified copy of the 6 promissory note was got marked as Ex.A1. Here it is the contention of the plaintiff that the original promissory note was exhibited in CC 16/2015 on the file of III Special Magistrate Court, Visakhapatnam and now the same is pending before Hon’ble High Court of AP by way of second appeal. The original document is out of the reach of the plaintiff and for that reason certified copy of promissory note was exhibited.
note. Absolutely there is no objection either from the 2nd defendant or from the 3rd defendant through their counsel when Ex.A1 was tendered for marking. Since the original document is not within the reach of the party and none of the defendants opposed or objected the certified copy of the promissory note when exhibited on behalf of the plaintiff absolutely there is no ground to determine the admissibility of Ex.A1 being the certified copy of original promissory note. Accordingly Ex.A1 is admissible in evidence as secondary evidence.
13.Now let us see the cross examination of PW1 initially by the 2nd defendant. The counsel for 2nd defendant initially concentrated on the avocation of plaintiff who is a welder running welding shop. The later portion of the cross examination mainly concentrated about the cheque bounce case (Calendar case) filed under Section 138 of Negotiable
Instruments Act against the 2nd defendant. PW1 admitted the result of the CC 16/2015 initially before the III Special Magistrate, Visakhapatnam and later by way of appeal before the Hon’ble I Additional District Judge
Court as acquittal. PW1 added that he preferred appeal before the
Hon’ble High Court of AP since the acquittal before the Hon’ble I
Additional District Judge was on technical reasons. The counsel for 2nd
defendant while submitting his arguments concentrated that the evidence of PW1 when got knowledge about the dismissal of cheque bounce case before the courts at Visakhapatnam, intentionally not 7 referred the result by the time the plaint was got prepared. He also pointed out the knowledge of the plaintiff about the result of cheque bounce case both in the trial court and in the appeal court by the time the evidence affidavit was got prepared, which was not referred in the evidence shows his intention to subside the said fact. The entire cross examination of PW1 in the second half very much concentrated about the result of cheque bounce case and the findings of the criminal court about the financial capacity of the complainant which are all not relevant to the present case on hand. It is settled proposition of law that the findings or the judgment in criminal court are not binding on the civil courts.
14.In this context, it is relevant to refer the observation’s reported in,
(i) 2002 (2) HLJ 727 in between “Nawab Deen vs. Sohan Singh” wherein the observation by their Lordships of Hon’ble High Court that “Section 42, 43 of the Evidence Act deal with relevancy of judgments, orders and decrees of the Courts and are as such declared relevant the extent indicated therein. If the judgment, order and decree do not fall within one or the other of those Sections, they will be irrelevant. None of these Sections of any other provision of law declares a finding of fact recorded by a Criminal Court as relevant evidence in a
Civil Suit before a Civil Court except to prove whether the accused in the case was acquitted or convicted. The Civil Court will have to come to its own conclusion as to the commission or non-commission of the act giving rise to the claim in the suit, on the basis of evidence led by the parties before it independently of the factual conclusion arrived at by the criminal court”.
(ii)In another citation reported in Criminal Appeal No.429/2016 in between “R.Thangavel vs. K.Palanisamy” before the Hon’ble High
Court of Judicature at Madras wherein the observation by their Lordships that, 8 “The well settled legal position is that ‘onus of proof’ is different in a civil case. In a civil case, ‘preponderance of probability’ is enough.
However, in a criminal case, the prosecution is to establish its case against the accused beyond reasonable doubt. There is no legal principle that the findings recorded by the Court either in civil or criminal proceedings shall be binding between the parties while dealing with the same subject matter and both cases will have to be adjudicated on the basis of evidence let in.”
(iii)In this context, it is also relevant to refer the observation by their
Lordships of Hon’ble Apex Court reported in 2009 (4) AWC 3405 (SC) in between “Vishnu Dutt Sharma vs. Daya Sapra”, their Lordships held that, “Any finding in criminal proceedings by no stretch of imagination would be binding in civil proceedings. Their Lordships while referring the provisions of Section 40 of Indian Evidence Act held that, the judgment of a criminal court in a civil proceedings will only have limited application i.e., for the purpose as to who was the accused and what was the result of the criminal proceedings”.
The observation by their Lordships when applied to the contention of the 2nd defendant through his counsel with regard to the observations in the criminal court about the financial capacity of PW1 is absolutely not binding on this court and it would not helpful to the case of the defendants to show any probabilities in their defense.
15.Now let us see the later portion of the cross examination of PW1 with reference to the surnames of the defendants. The evidence of PW1 shows he has no knowledge about the full surname of the defendants 1 to 3 except their initials that were got noted on the suit promissory note.
But the counsel for 2nd defendant started suggesting to the witness that 1st defendant is the henchmen of plaintiff and his surname is well known 9 to the plaintiff and that is the reason the same was shown in the full cause title. If at all the said contention of the defendant is tenable the plaintiff ought to have no knowledge about the full particulars of the other defendants 2 and 3 whose surnames were clearly depicted in the long cause of title of the plaint along with the surname of the 1st defendant. However, the said suggestion was also denied by the witness. At the closure the suggestions that were put to the witness shows that the plaintiff is in the habit of gathering information about the
Government employees to gain illegally and used to fabricate their signatures on the suit promissory notes to file false cases against them and there was no transaction in between the plaintiff and 2nd defendant and to gain illegally a false suit was filed against the 2nd defendant. On perusal of the entire cross examination of PW1 through the 2nd defendant no where shows the denial of 2nd defendant’s signature on Ex.A1 promissory note. Not even put a single suggestion with regard to the alleged signature of 2nd defendant on Ex.A1 either with the plea of fabrication or forgery. The plaintiff when stated in his chief affidavit about the passing of consideration of Rs.4,00,000/- to the defendants 1 to 3 when Ex.A1 original was executed on 4.07.2012 the same was also not challenged by the 2nd defendant even by way of any suggestion to
PW1. So, the cross examination of PW1 with regard to the signature of 2nd defendant as one of the executant and the passing of consideration to the 2nd defendant as one of the executant are all remains unchallenged to prove the contention of plaintiff as PW1.
16.Now let us see the cross examination of 3rd defendant through her counsel. The written statement of 3rd defendant is similar to that of 2nd defendant with the plea of forgery and fabrication. The suggestions that were put to the witness shows that the suit promissory note is not 10 maintainable since it does not depict the full surname of the defendants besides their particulars and addresses which are all mandatory, which was denied by the witness. There is no submission from the counsel for 3rd defendant with regard to the said aspect neither submitted any procedure nor precedent in the said context in order to give weight to the said contention that Ex.A1 is not maintainable for the reasons that are suggested to PW1. The said cross examination of PW1 is quite contrary to the provisions Section 20 of Negotiable Instrument Act. The suggestions that were put to PW1 shows that Ex.A1 is not admissible and maintainable and only to mislead the court PW1 is deposing false which are all denied by the witness. So, the cross examination of PW1 by 3rd defendant is similarly immaterial particularly to dispute the execution of suit promissory note on 4.7.2012 when an amount of Rs.4,00,000/- was lent by the plaintiff to the defendants 1 to 3. The 3rd defendant neither disputed nor denied her signature on Ex.A1 in consonance to her pleadings i.e., plea of fabrication. The 3rd defendant not even put a single suggestion to dispute the passing of consideration under Ex.A1 original promissory note when stated by PW1 in his chief affidavit. So, the evidence of PW1 remains unshattered particularly on the material facts i.e., execution of Ex.A1 original promissory note by the defendants 1 to 3 in favour of the plaintiff on 4.07.2012 when borrowed an amount of Rs.4,00,000/- from the plaintiff. So, the cross examination of PW1 coupled with Ex.A1 remains unshaken to prove the execution of Ex.A1 by the defendants 1 to 3 on 4.7.2012. Here it is also pertinent to state the claim against 1st defendant who remained exparte and failed to contest the matter remains unchallenged to prove the contention of plaintiff.
17.Now let us see the evidence of PW2 who is a 2nd witness of plaintiff to corroborate his contention that Ex.A1 promissory note was supported 11 by consideration. This witness is none other than the 2nd attestor of
Ex.A1 promissory note. He filed his chief affidavit contending his presence as one of the attestor when the defendants 1 to 3 borrowed an amount of Rs.4,00,000/- from the plaintiff on 4.7.2012. According to him,himself and the 1st attestor Suresh attested the suit promissory note and it was scribed by one V.Gopi Krishna. This witness was also cross examined by the counsel for 2nd defendant which was adopted by the 3rd defendant. Initially the avocation of the witness as a man of doing transport business was elicited. Later his acquaintance with the plaintiff since 2012 was also elicited. This witness in his evidence stated that the place of transaction was in the office of advocate in Akkayyapalem. Later the counsel for 2nd defendant tried to elicit through the witness about his signature on Ex.A1 and on his evidence affidavit which were not alike and that the contention of defendants started suggesting that he was not the person signed on Ex.A1 as 2nd attestor and he was introduced as 2nd attestor by way of impersonation which was denied by him. A formal suggestion has been put to the witness that he does not know the defendants he never saw them and no transaction took place as stated by him which are all denied by him.
18.Here it is also pertinent to state that the entire cross examination of PW2, is similarly silent without disputing the signatures of the defendants as alleged executants of Ex.A1. The defense not even put a single suggestion disputing the signatures of defendants on Ex.A1 as a material part in order to show any probabilities in their defense in consonance to their plea of fabrication, when the witness stated his presence as 2nd attestor along with the 1st attestor and scribe, when the transaction under Ex.A1 had taken place, the defendants who raised a plea of fabrication not even put a single suggestion disputing their 12 signatures on Ex.A1 similarly made the cross examination of PW2 as unshattered in order to challenge the contention of plaintiff that the execution of Ex.A1 original had taken place in the presence of PW2.
19.Here it is relevant to refer the argument of 2nd defendant through his counsel while pointing out the discrepancies in the evidence of PW1 and PW2 particularly about the place of transaction. Admittedly PW2 has stated that the transaction had taken place in the office of Advocate at
Akkayyapalem. But the counsel for defendants neither elicited nor disputed the place of transaction through PW1 who is a par;ty to the proceedings. Neither the plaint nor the chief affidavit of PW1 disclosed any fact with regard to the exact place of transaction covered under
Ex.A1 original promissory note. In those circumstances how the argument of defense would be sustainable to come to a conclusion that the place of transaction has differed in the evidence of PW1 and PW2 in order to come to a just conclusion to believe the probabilities in the case of the defendants. The entire cross examination of PW1 when culled out there is no any single suggestion or material elicited by the defendants with regard to the alleged execution of Ex.A1 i.e., either the date, time, place of transaction, passing of consideration or any other relevant fact connected to the disputed transaction. So, the question of suspecting the evidence of PW2 with regard to the place of transaction is unwarranted. When there is no material in the cross examination of PW1 with regard to the execution of Ex.A1 original the mere sentence in the evidence of PW2 is absolutely not helpful to shaken the case of the plaintiff to suspect the transaction under Ex.A1 original. The witness
PW2 being a material witness i.e., one of the attestors of Ex.A1 original promissory note, the defendants ought to have dispute the alleged signatures on Ex.A1 if at all they were not genuine. In the absence of any 13 such contention through PW2 invariably concludes that the evidence of
PW2 also remains unchallenged to prove the execution of Ex.A1 promissory note and the same is fully corroborated with the evidence of
PW1 in order to prove the execution of Ex.A1 original by the defendants 1 to 3 in favour of the plaintiff on 4.7.2012 when borrowed an amount of
Rs.4,00,000/- from the plaintiff. So, the evidence of PW1 and PW2 in one voice discharged the burden of plaintiff to prove the execution of Ex.A1 promissory note by the defendants 1 to 3 as true, valid and supported by consideration.
20.Once the plaintiff discharged his burden to prove the execution of
Ex.A1 original promissory note now the onus would shifts on the defendants 2 and 3 in order to prove their contention that Ex.A1 was not supported by consideration and it is a rank forged document.
21.Now let us see the first witness on behalf of the 2nd defendant as
DW1. He is none other than the 2nd defendant who filed his chief affidavit reiterating the contents of the written statement. Nothing is specific in the entire chief affidavit of DW1 to show the nexus of plaintiff with the defendants in order to foist this false case to gain illegally. This witness was cross examined by the counsel for D3 initially, it shows that defendants 1 to 3 are not of same family and according to DW1 he does not know the defendants 1 and 3. The later portion of the cross examination was done by the counsel for plaintiff wherein he elicited through the witness about his defense which is a total denial by way of fabrication. This witness initially when confronted his written statement to identify the signature the same was denied by him. However, he added by way of rectification that the same belongs to him.
22.DW1 in his cross examination denied his signature on the disputed promissory note. The later portion of the cross examination of DW1 14 concentrated about the cheque bounce case in CC 16/2015 wherein he deposed as one of the witness. Counsel for plaintiff started confronting the chief affidavit of 2nd defendant as a witness in CC 16/2015 wherein his contention is that “he was in urgent need of money in the year 2012 and he met one Imam Saheb a money lender-cum-mediator assured to lend Rs.30,000/- and suggested to get ready with a blank signed cheque and also to execute a blank promissory note for which he accepted and the said Imam Saheb told to the 2nd defendant about G.Satyavathi (3rd defendant) who won the auction in the chit conducted by Ugadi residing at Sankaramatam Road at Akkayyapalem needs a Government employee as surety for the said chit amount. The said Imam Saheb took the 2nd defendant to Ugadi and collected the blank cheques and given to
Ugadi, and there G.Satyavathi (3rd defendant) and G.Anand (1st defendant) were also present by that time and the said Ugadi obtained signatures of 2nd defendant on blank promissory note as a security to
G.Satyavathi (3rd defendant) and gave Rs.1,00,000/- to the said
Satyavathi. The said alleged contention when confronted to DW1 was replied by him that he didn’t remember the said fact as alleged in his chief affidavit. So, the entire contention of 2nd defendant when compared with the contents of his chief affidavit in CC 16/2015 invariably shows the knowledge of 2nd defendant about the other two defendants 1 and 3 even in the year 2012 for his alleged transaction i.e., putting his signatures on blank cheques and blank promissory notes. If at all the said contention of 2nd defendant as averred in CC 16/2015 is tenable and probable the same ought to have been found in his written statement as defense in the present suit in order to show the probabilities. The evidence of DW1 to show his lapse of memory on the said fact made it manifest that it is only an after thought to the case of 2nd defendant in 15 order to forego his liability and intentionally showing non remembrance of his knowledge about the defendants 1 and 3 who were very much present and signed along with the 2nd defendant even in the alleged transaction of Imam Saheb as contended by the 2nd defendant. If really the contention of 2nd defendant is probable and acceptable he would have taken steps against the said Imam Saheb along with the 3rd defendant G.Satyavathi for whose transaction he had put his signatures on blank documents before one Ugadi at the request of Imam Saheb.
The 2nd defendant neither initiated any steps against the alleged persons nor averred the said allegations in the present written statement made it vivid that it is nothing but a device to avoid his liability under the present suit transaction. So, the material in the cross examination of
DW1 particularly with regard to the contention of 2nd defendant in his evidence affidavit in CC 16/2015 when referred an alleged transaction of the year 2012 in the presence of defendants 1 and 3 invariably concludes the knowledge of 2nd defendant about the defendants 1 and 3 while the transaction under Ex.A1 promissory note had taken place. So, the cross examination of DW1 is completely ruled out the defense of 2nd defendant and it further proved the signature of 2nd defendant on Ex.A1 original promissory note along with the other defendants 1 and 3 when the execution of suit promissory note had taken place on 4.7.2012 when the three borrowed Rs.4,00,000/- from the plaintiff. So, absolutely the signature of 2nd defendant on Ex.A1 original promissory note is not in dispute and the same is belongs to him.
23.Now let us see the evidence of 3rd defendant as DW2. She filed her chief affidavit reiterating the contents of the written statement. In her chief affidavit she contended that she never executed any promissory note or issued any cheque in favour of the plaintiff and she lost her 16 cheque book in the year 2012 and her cheque bounce case is pending in criminal appeal No.394/2017.
24.Now let us see the cross examination of DW2 initially by the counsel for 2nd defendant. Counsel for 2nd defendant in his cross examination elicited through the witness that except putting her signature she cannot read and write Telugu. Now let us see the cross examination of plaintiff. Initially she identified her signature when confronted to her on her chief affidavit. She also identified her signature on her written statement finally she identified her signature as a 3rd executant of Ex.A1 promissory note when confronted to her. In this context, it is relevant to submit the argument of 2nd defendant through his counsel that the 3rd defendant unable to identify her signature admitted the alleged signature on Ex.A1 which is quite unwarranted. The witness who has sufficient knowledge and identity of her signatures initially started identifying her signatures on her chief affidavit, written statement and finally, on Ex.A1 promissory note. So, absolutely there is no ambiguity in the entire evidence of DW2 particularly about the factum of her signature on the documents that were confronted to her.
The defense is not entitled to raise any subsequent contention by taking advantage of the alleged illiteracy of 3rd defendant. The later portion of the cross examination of DW2 with regard to the cheque bounce case which was ended in conviction and pending before First Appellate Court by way of appeal. The counsel for plaintiff started eliciting to know whether any steps were taken by the witness since 2014 to till date against the plaintiff for foisting a false case against the defendants for which she replied that she has not got issued any notice to the plaintiff till date further shows that there are no probabilities in the case of the 3rd defendant even to believe her version that defendants 1 and 2 are 17 quite unknown to her and she never saw them and the signature on
Ex.A1 does not belongs to her.
25.In this context, it is also relevant to refer the alleged contention of 2nd defendant in his chief affidavit in CC 16/2015 when contended that he saw the 3rd defendant in the year 2012 when he signed on a blank cheque and promissory note towards the chit transaction of 3rd defendant before one Ugadi and his approach to one Imam Saheb for an amount of Rs.30,000/- towards the payment of his children school fee which are all completely silent in the cross examination of DW2 by D2. If really such an alleged contention is genuine the same ought to have been found in the cross examination of DW2 in order to show the probabilities in the case of 2nd defendant to believe his version that his signatures on blank documents at the instance of one Imam Saheb in the chit transaction of 3rd defendant. In the absence of any such alleged contention that was raised by D2 in CC 16/2015 invariably concludes that it is absolutely improbable and palpably false to believe the alleged contention of 2nd defendant.
26.Here it is also relevant to refer the cross examination of DW2 at the fag end when the plaintiff elicited to know whether she joined in any chit transaction before any person was negatived by the 3rd defendant also shows the probabilities in the case of 2nd defendant to believe his version that he signed on blank documents in the chit transaction of 3rd defendant. On perusal of the evidence of D3 it is manifest that she never participated in any chit transaction invariably concludes that the alleged defense of 2nd defendant in CC 16/2015 is absolutely improbable and unsustainable to show any probabilities in his case. So, the cross examination of DW2 particularly her identity about her signature as one of the executant on Ex.A1 promissory note also concludes that the 18 plaintiff discharged his burden to prove the execution of Ex.A1 original promissory note by the defendants 1 to 3 when borrowed a sum of
Rs.4,00,000/- from the plaintiff.
27.Here it is also relevant to refer the settled ratio reported in 2017 (6) MLJ page 190 in between “M.Meenambal and others vs.
A.Bama” wherein the observation by their Lordships of Hon’ble High
Court of Madurai Bench that, “The burden lies on the plaintiff to prove the execution of Ex.A1. In this case, the defendant admits the execution of Ex.A1 by admitting her signature in Ex.A1. When the defendant specifically pleaded that the document Ex.A1 was signed by her, but her signature was obtained only in a blank stamp paper, it is for the defendant to explain why and under what circumstance, the document under Ex.A1 was signed when it was only a blank paper. Since the defendant has specifically come up with a story, the burden lies on her to make her case believable or acceptable.
When the defendant has failed in her attempt that she signed only in blank stamp papers for a specific purpose and this Court find that the story of defendant cannot be believed for very strong reasons, this Court has no other option but to conclude that the plaintiff has proved the due execution of Ex.A1 by the defendant”.
The observation by their Lordships in the above case law when applied to the present case on hand it is for the defendants 2 and 3 to explain how their signatures on blank documents went into the hands of plaintiff.
So, the onus that would shift on the defendants in order to show preponderance of probabilities to believe their version that Ex.A1 original promissory note is not supported by consideration and it went into the hands of plaintiff blankly in another transaction proved futile.
The defendants except examining themselves as DW1 and DW2 either placed any oral or documentary evidence on their behalf to show any probabilities to believe their defense. They not even summoned the 19 alleged persons Imam Saheb or Ugadi to prove the alleged transaction of the year 2012 to believe their version. There are no reasons in the entire defense of D2 for not initiating any steps against the persons i.e., Imam
Saheb and Ugadi to get the documents back which were signed by him blankly from 2012 to till the date of filing of the present suit in the year 2016 are all shows that absolutely there is no material either oral or written to prove the contention of the defendants that Ex.A1 is not supported by consideration.
28.Now let us see the citations submitted by the counsel for defendants whether helpful to the defense of the defendant’s or not. In one citation reported in Vijayakumari vs. Jaggar Singh @ Jagar
Singh @ Jagga Singh in RSA No.4585/2010 before their Lordships of
Hon’ble Punjab and Hariyana at Chandigarh. In the above case law their
Lordships in the second appeal while referring the provisions of Section 118 (a) of Negotiable Instruments Act upheld the Judgment of the trial
Court and first Appellate Court on the ground that the plaintiff has not discharged the onus refuting the defense not only on the aspect of validity of the instrument, but also for showing that the document was based on consideration.
Their Lordships in their observation held that, “The defendant has discharged the onus by showing that the existence of consideration was improbable and doubtful.
Therefore, plaintiff was required to prove that the promissory note was executed for consideration. The failure on the part of plaintiff have to entail in declining the grant of relief on the basis of
Negotiable Instrument”.
The case facts and the analogy laid down by their Lordships is not applicable to the present case on hand.
29.In this case the defendants who initially denied the entire 20 execution of the suit promissory note in their written statement subsequently admitted their signatures by raising different contentions.
The defendants not even disputed their signatures and the passing of alleged consideration in the evidence of plaintiff even failed to show any probabilities in their defense in order to discharge their onus which was shifted on them after the plaintiff discharged his burden by proving the execution of Ex.A1 original promissory note. So, the ratio laid down by their Lordships is not applicable to the present case on hand.
30.In another citation reported in Second Appeal NO.908/1999 on
the file of Hon’ble High Court of Judicature at Madras in between
“Thangarasu vs. Arumugam” wherein their Lordships in their observation in the second appeal while upheld the judgment and decree of the First Appellate Court, referred the settled proposition of law reported in Bharat Barrel and Drum Manufacturing Company. In the above case the observation by their Lordships shows that there is no cogent, consistent, convincing and acceptable evidence of plaintiff side witnesses. But coming to the case on hand, there is no such discrepancy in the evidence of plaintiff side witnesses and more particularly the admission of defendants about their signatures on the disputed promissory note invariably place the burden on them in order to show probabilities even to believe their version how their signatures on blank documents went into the hands of plaintiff. There is no whisper in the entire evidence of defendant side to show that when and where the alleged transaction had taken place in order to put their signatures on blank documents shows that the ratio laid down by their Lordships in the above case law is not applicable to the present case on hand.
31.In view of the above discussion as the defendants failed to show any probabilities in their defense in order to believe their version that 21
Ex.A1 is not supported by consideration and the evidence of plaintiff coupled with the admissions of defendants proved the execution of
Ex.A1 original promissory note by the defendants 1 to 3 as true, valid and supported by consideration and thereby binding on the defendants.
Accordingly, this issue is answered in favour of the plaintiff.
32.ISSUE NO.2:-
In view of the findings on issue No.1 the plaintiff is entitled to recover the suit amount as prayed for. Accordingly, this issue is answered.
33.ISSUE NO.3:-
In view of the findings on issue Nos.1 and 2, the suit has to be decreed.
34.In the result, suit is decreed with costs against the defendants 1 to 3 for a sum of Rs.6,87,466/- (Rupees six lakhs eighty seven thousand four hundred and sixty six only) along with subsequent interest @ 12% per annum from the date of suit till the date of decree and thereafter @ 6% per annum till the date of realization on the principal sum of
Rs.4,00,000/-.
Typed to dictation by the Stenographer, corrected and pronounced by me this the 22nd day of June, 2020.
I ADDITIONAL SENIOR CIVIL JUDGE,
VISAKHAPATNAM.
Appendix of evidence No. of witnesses examined for Plaintiff: Defendants:
PW1 is U.Durga Prasad. DW1 is K.Ravikumar.
PW2 is B.Ramesh. DW2 is G.Satyavathi
No. of exhibits marked for
Plaintiff:
Ex.A1 dated 4.07.2012 certified copy of promissory note.
Defendants: Nil.I ASCJ/VSP