IN THE COURET OF THE PRINCIPAL DISTRICT JUDGE,
SRIKAKULAM.
Present: Smt.V.B.Nirmala Geethamba,
Principal District Judge.
Monday, this the 10th day of December, 2018
Appeal Suit No.01 of 2017
Between:
Durgamahanti Chandrasekhar, S/o late Prasada Rao, Hindu, aged 55 years, residing at RR towers, Flat No.304, 3rd floor, Opposite to Ryutu Bazaar, Gopalapatnam, Visakhapatnam.
.. Appellant/Defendant.
And: Kilari Rambabu, S/o late Appa Rao, agted 60 years, residing at Jalumuru village and Mandalam, Srikakulam District. …Respondent/Plaintiff.
Appeal filed against the Decree and Judgment made in
O.S.No.173/2011, dated 01.06.2016 on the file of Principal Senior Civil
Judge, Srikakulam.
Between:
Kilari Rambabu.
.. Plaintiff.
And: Durgamahanti Chandrasekhar.
..Defendant.
This appeal coming on 30.11.2018 for final hearing before me in the presence of Sri O.Srinivas, Sri K.Bhavani Shankarudu, Smt.V.Hari Priya and SK Madeena Valli, Advocates for Appellant/Defendant and of Smt.L.Lakshmi Venkata Narasamma, Advocate for Respondent/Plaintiff and having heard both sides and having stood over till this day for consideration, this court made the following:
J U D G M E N T
The appellant is the unsuccessful defendant in
O.S.No.173/2011 on the file of Principal Senior Civil Judge, Srikakulam.
For the sake of convenience, the parties are referred to called as ‘plaintiff’ and ‘defendant’ as arrayed in O.S.No.173/2011 in the suit.
2. The brief pleadings are as follows:
The defendant borrowed an amount of Rs.3,50,00000 from plaintiff on 13.06.2009 for his family necessities and to discharge his sundry debts and executed the suit promissory note in favour of the plaintiff agreeing to repay the said amount together with interest @ 12% 2A.S.No.1 of 2017 Dt.10.12.2018.
per annum on demand either to the plaintiff or his order. Subsequently on repeated demanded made by the plaintiff personally and through mediators, the defendant did not come forward to discharge the debt amount and postponed the same on one pretext or other while admitting his liability. Hence, the suit.
3.The defendant filed written statement denying all the material averments of plaint and further submitted that he never borrowed any amount from the plaintiff and he does not know the plaintiff or attesters and scribe. In the year 2009, the plaintiff never resided at Gopalapatnam and he never visited Jalumuru muchless on 13.06.2009. The defendant borrowed some amounts from K.Jagannadha
Rao at BM Yard (Bhilai Marshalling Yard) Charoda C.G.District, totaling to a sum of Rs.91,00000 by cash and through cheque on 10th August, 1998 and for that, this defendant signed on unfilled promissory notes and some blank papers also. The defendant repaid those amounts and requested the said K.Jagannadha Rao of B.M.Yard for return those documents, but he failed to return the said documents and stated that the same were misplaced at the time of shifting of his house and further he assured to the defendant that he will return those documents if traced out. But surprisingly of the defendant, the plaintiff filed the suit against him. The said K.Jaggannadha Rao might have colluded with the plaintiff and got created promissory note. The plaintiff who is in hand in glove with the scribe and attestors of the suit promissory note got filed the vexatious suit claim against the defendant.
The defendant filed additional written statement in brief are as follows:
The defendant was born and brought up in Madhya Pradesh and got educated in Madhya Pradesh and as such, he does not know to read or write in Telugu. The alleged promissory note said to have been executed by the defendant is in Telugu language which is not known to 3A.S.No.1 of 2017 Dt.10.12.2018.
him and the defendant also unaware of the contents and as such the same is fabricated and created for the purpose of the suit to have an unlawful enrichment. At the time of execution of suit promissorynote, the defendant was in Gopalapatnam, Visakhapatnam, but not residing at
Seethammadhara in Visakhapatnam and he shifted to his son’s newly acquired property in Gopalapatnam in the year 2010 and therefore, the plaint particulars are all false and incorrect. The defendant is authorized agent of Balaji Engineering Company, Visakhapatnam, a proprietary concern looking after the affairs of the said concern as its agent, at the time of execution of suit promissory note, he was busy in disbursing salaries to the staff of Balaji Engineering Company, Visakhapatnam at
LG Polymers India Private Limited, Visakhapatnam site between 3.00 p.m., and 5.00 p.m., and as such there is no possibility for his presence at Jalumuru at the same time which is about 140 km or so from
Visakhapatnam. The plaintiff is claiming to be an agriculturist and has no capacity to lend such huge amounts. The plaintiff has no source of income to lend such huge amounts and he has not revealed his source of income to lend such huge amounts and he ahs not revealed his source of income with any documentary evidence to establish his bonafides and prays to dismiss the suit.
4.Basing on the above pleadings, the following issues were settled for trial in the trial court:
(1) Whether the suit promissory note is true, valid and supported by consideration?
(2) To what relief?
5.During the course of trial, the plaintiff himself examined as
P.W.1 and got examined both attesters as P.Ws.2 and 3 and got marked
Ex.A.1. To rebut the evidence of plaintiff, the defendant himself examined as D.W.1 and got marked EXs.B.1 to B.11. The Tahsildar,
Jalumuru examined as D.W.2 and got marked Exs.X.1 to X.3. The hand 4A.S.No.1 of 2017 Dt.10.12.2018.
writing expert examined as D.W.3 and got marked Exs.X.4 to X.6 on his behalf.
6.Upon considering the oral and documentary evidence adduced on both sides and their respective contentions, the Principal
Senior Civil Judge, Srikakulam decreed the suit. Aggrieved by the
impugned Judgment passed by the trial court in O.S.No.173/2011 on 01.06.2016, the defendant preferred the appeal on several grounds.
7.Written arguments filed on behalf of appellant/defendant and heard arguments on behalf of respondent/plaintiff.
8.Upon considering the rival contentions perusing on available record, the point that arises for determination is as follows:
“Whether the Judgment and Decree dated 01.06.2016 passed by the learned Principal Senior Civil Judge, Srikakulam in
O.S.No.173/2011 are liable to be set aside or confirmed and if
so, to what relief?”
9. Point :
The counsel for defendant argued that he never borrowed any sum from the plaintiff at any point of time much less on 13.06.2009 and never executed any promissory note for Rs.3,50,00000 in favour of the plaintiff and the same is created. He further argued that the defendant had transactions with one K.Jagganadh Rao (K.J.Rao) at
B.M.Yard (Bhilai Marshalling Yard) Cjharoda , totallfing to a sum of
Rs.91,00000 by cash and through cheque on 10.08.1998 and for that the defendant signed on unfilled promissory notes and some blank papers. Subsequently he paid the said amount to the said K.Jagganadh
Rao, but he did not return the documents by intimating that the said documents were misplaced at the time of shifting the house and after tracing the same, he will returned the said documents to the defendant.
He further argued that the plaintiff is brother of said K.Jagganadh Rao with the collusion of the plaintiff, created the suit pronote. He further argued that the plaintiff himself brought the attesters and scribe and the 5A.S.No.1 of 2017 Dt.10.12.2018.
address of the defendant was not mentioned clearly in Ex.A.1. He further stated that the plaintiff is white ration card holder and his annual income is less than below poverty line and he has no capacity to pay the said huge amount to the defendant. He further stated that he got acquaintance with the defendant as he was resident of Visakhapatnam as the parents of the defendant are residents of Bhilai. He did not file any scrap of paper to show that he had 20 acres of land to prove his income. He further argued that P.Ws.2 and 3 are tutored witnesses and henchmen of the plaintiff and with the help of them, he created Ex.A.1.
He further argued that the defendant himself examined as D.W.1 and got marked Exs.A.1 to A.11. He further summoned Tahsildar of Jalumuru to ascertain the particulars of the plaintiff and his income is blow poverty line. He further argued that defendant send the document to the expert opinion pertaining to the age of the signatures and other features to the expert and the opinion of the expert is in his favour. He further argued that defendant never residing at Gopalapatnam, Visakhapatnam, but he was resident of Seethammadhara, Visakhapatnam and he educated elsewhere at Madhya Pradesh and he does not know read or write
Telugu. He further stated that he obtained the documents under right to information Act and got issued the notice to the plaintiff under Order 12
Rule 8of C.P.C., to furnish the property particulars of the plaintiff and his household card and income particulars of the year 2009. But the plaintiff did not respondent and thereafter he obtained the same from revenue department and got marked as Exs.X.1 to X.3. He further argued that after verification of the property particulars of the plaintiff, the Tahsildar, Jalumuru mentioned the income of the plaintiff as
Rs.16,00000 per annum and he is white ration card holder and he has no capacity to lend such huge amount to the defendant. He further stated that after due analysis, the expert concluded that there were interpolations and material alterations in the promissory note and the 6A.S.No.1 of 2017 Dt.10.12.2018.
same was written with different inks and pens and there is chronological gap between the writings in the promissorynote and as well as signature of the defendant which concludes that the pronote was not prepared on the day it was signed by the defendant. He further opined that the document was not filled up in the normal course, but in piecemeal execution and that there are chronological gaps within the writings in the body of pronote and that there was an intervening period between the writings in the pronote and the signature of the defendant. He further argued that the expert further opined that the document had gathered dust and the document may beolder than what is described. He further opined that there is strong prima facie evidence that digit ‘3’ has been interpolated in the originally existing entry reading as 50,000/ to make it currently read as 3,50,000/ and that the sheen of the letter ‘3’ is lighter than rest of the entry. He further stated that he rebutted the evidence of the plaintiff by leading oral and documentary evidence and no consideration was passed under Ex.A.1 and plaintiff also not having knowledge of the business particulars of the defendant, if that is so, lending such huge amount to the defendant which is absord. But the trial court ignore all these aspects and decreed the suit in favour of the plaintiff and against the defendant. Hence, prayed to allow the appeal.
10.The counsel for the plaintiff relied on the findings of the trial court.
11.On perusal of record, the plaintiff himself examined as P.W.1 and he filed his chief affidavit which is replica of his pleadings in the plaint. In cross examination, P.W.1 admitted that defendant is known person to him as he is resident of house of his brother both at Bhilai and
Gopalapatnam area, Visakhapatnam and his brother’s name is Kilari
Jagannadham and he got acquaintance with the defendant since 10 years. The defendant used to residing at Visakhapatnam and the parents of the defendant are residents of Bhilai. He further admitted 7A.S.No.1 of 2017 Dt.10.12.2018.
that he did not lend any amount to any other persons except defendant and he is doing cultivation. He further admitted that he is white ration card holder and he is not having Arogyasri health card. One Bommala
Simmayya is the scribe of Ex.A.1 and he denied a suggestion that he did not mention the place of execution of Ex.A.1 in Ex.A.1. He further admitted that Ex.A.1 was scribed in Telugu language and defendant is scribed his signature in Telugu and he can identify the numericals. But he denied the dates mentioned under the signatures of the attesters and scribe and stated that he cannot say the same. As per his evidence, the defendant came to his house from Visakhapatnam to Jalumuru on 13.06.2009 and he is having SBI account in Grameena Bank in
Jalumuru since 6 or 7 years. As per his evidence, he enquired about residential address of the defendant before lending money. He filed the suit one year back. But he admitted that he did not mention the address particulars of the defendant under Ex.A.1, so also father’s name of the defendant. As per his evidence, scribe is belongs to their area and he was not issued any notice before filing the suit. He further admitted that his two sons are employees in private company at Hyderabad. He pleads ignorance about their particulars and they only studied Intermediate. He further admitted that he owned Ac.20.00 of land and he will produce the documents. As per his evidence, he had given denomination by way of
Rs.50000 notes in 7 bundles at 100 notes in each bundle. He further stated that he do not know about the business particulars of the defendant. P.W.1 further admitted that he is not an income tax assess.
He further admitted that out of his annual income, he used to spent some amount towards agricultural investments and to meet his family expenses. His sons are used to send Rs.4,00000 per month each and they used to give Rs.10,00000 or Rs.20,00000 when they visit his house. He denied a suggestion that the defendant had given a blank pronote as security to his brother and discharge the amount, the same 8A.S.No.1 of 2017 Dt.10.12.2018.
was misused by him by creating Ex.A.1. As per his evidence, he brought the attesters and scribe at Jalumuru and denied the other suggestions.
12. The 1st attester of Ex.A.1 was examined as P.W.2. As per his evidence, the defendant borrowed amount in his presence and thereafter executed Ex.A.1 in favour of the plaintiff. In cross examination, he admitted that he mentioned the place of execution of
Ex.A.1 in chief examination. As per his evidence, the said transaction was taken place at about 3.00 p.m., and scribe of Ex.A.1 is belongs to their village and he is only signatory studied up to 5th class. As per his evidence, the suit pronote is printed proforma in Telugu. He further stated that the chief examination was prepared by his advocate and thereafter he signed the same. The defendant signed on the one rupee revenue stamp. As per his evidence, there are no corrections in the promissory note and he did not put the date under his signature. As per his evidence, the plaintiff brought the amount from his house.
13.The 2nd attester examined as P.W.3 and his chief is replica of chief of P.W.2. On perusal of cross examination of P.W.3, he cannot say the contents of suit as he was an illiterate and he only signed on Ex.A.1.
The consideration was passed in lumsum and defendant signed across the revenue stamp. As per his evidence, the said promissory note was not scribed in his presence.
14.To rebut the evidence of plaintiff, the defendant himself examined as D.W.1 and his chief is replica of his written statement and he further stated that on the date of execution, he was not present at
Jalumuru village and by that time he was paying salaries to the staff of
Balaji Engineering Company at LG Polymers India Private Limited,
Visakhapatnam between 3.00 p.m., to 05.00 p.m., and there is no possibility of his presence at Jalumuru which is at a distance of 140 km., away from Visakhapatnam. He further stated that the plaintiff has no source of income to lend such huge amount to him. Through him, 9A.S.No.1 of 2017 Dt.10.12.2018.
Exs.B.1 to B.11 marked. In cross examination, he stated that one
Ravindra Reddy filed a criminal case against him for the offence under section 138 of NI Act at Visakhapatnam and he engaged one advocate namely A.Ramakrishna on his behalf and at present, Sri S.Srinivasa Rao was advocate of him and both are belongs to same office. He further stated that in that case, he was convicted and he preferred an appeal.
He further admitted that he received summons in this matter while he was in Gopalapatnam address and thereafter he engaged his advocate.
He further admitted that the house of brother of the plaintiff is situated behind his house at Bhilai. He further admitted that his father and brother of the plaintiff belongs to Railway department. He further admitted that he did not issue any notice to Kilari Jagannadha Rao to return his blank unfilled pronote. But adds that in view of relationship, he did not issue any notice to the brother of the plaintiff. He further stated that now his house is situated at Rythu Bazar, Visakhapatnam.
He further stated that he himself look after the business in the name of
Balaji Engineering Company at Visakhapatnam and his wife is proprietor of said company. He denied a suggestion that he created Exs.B.6 to B.9 cash vouchers conveniently to prove his defence. Ex.B.1 is house hold card issued in his favour on 28.08.2005. As per his evidence, he came to know about relationship between plaintiff and Jagannadha Rao from nephew of Jagannadha Rao that the plaintiff filed a suit against him. As per his evidence, Jagannadha Rao and his nephew obtained his signatures on blank papers and his nephew name is Subrahmanyam calling as Babi.
15.One Pravallika Priya who is Tahsildar of Jalumuru Mandal examined as D.W.2. As per her evidence, the defendant made an application under Right to Information Act for submission of total extent of land owned by the plaintiff in Jalumuru revenue village. Accorrdingly, she issued Exs.X.1 to X.3. Ex.X.1 is the attested Xerox copy of 1B 10A.S.No.1 of 2017 Dt.10.12.2018.
namoona of Jalumjuru village. Ex.X.2 is the household card of plaintiff and at the time of application, the plaintiff submitted his income particulars. The original of Ex.X.2 is issued in the year 2006. By that time, the plaintiff is having income of Rs.16,00000 per annum. At present, for issuance of white household card to the applicant, the criteria of income is up to Rs.60,00000. As per her evidence, the plaintiff is having own land of Rs.2.41 cents in Venkatapuram revenue village of Jalumuru Mandal. Ex.X.3 is the attested true copy of 1B namoona of Venkatapuram village of Jalumuru Mandal. In cross examination, she admitted that she came to court on summon and she admitted that the plaintiff is having an extent of Ac.1.18 cents in
S.No.162A and an extent of Ac.1.00 in S.No.1655 and an extent of
Ac.0.23 cents in S.No.1566B of Venkatapuram village of Jalumuru
Mandal and denied other suggestions.
16.The handwriting expert examined as D.W.3. As per his evidence, he is working as handwriting and finger print expert since last 50 years and had given opinions more than 5000 cases throughout country. As per his evidence, he received Ex.A.1 promissory note regarding questioned document for assessment of age of ink between the signatures and the writings on the said document. After detailed examinations and preparation of photographic examinations including the microscoping examinations, he arrived at the following conclusions:
(1) The writings of the tests of the document ie., Ex.A.1 marked as
Q1 and Q2 including the signature is marked as Q3 do not respond to chemical reaction on application reagents; (2) There is a primafacie of interpolated of digit ‘3’ in the originally existing writing fifty thousand to convert into Three lakh fifty thousand; (3) There is a multiple use of pens and inks in the execution of the tests of the writings on Ex.A.1; 11A.S.No.1 of 2017 Dt.10.12.2018.
(4) Due to multiple use of pens and inks there is a prima facie evidence that the questioned document in Ex.A.1 has been executed in more than one sitting. This is also corroborated by the interpolated of digit ‘3’ in the original writing Rupees Fifty thousand; (5) A deeper shading of ink appears to have been used in words
Prasada Rao and the word rupaayalu in the said document; (6) due to the unspecified intervening period with regard to the execution of the writings in the tests of the documents there is a chronological difference not only among the writings themselves intercy but also between the signatures and the said writings marked Q1 and
Q2.
(7) There also appears in interpolated in the date 13 appearing in two places in the pronote through the adition of digit “1” because it shows a deeper intensity.
(8) The interpolated digit ‘3’ shows the lighter shading as compared due to test of the writings in the among in the writing Q1;
Accordingly, he issued his opinion and supplementary opinion along with photo enlargements of various portions of Ex.A.1 and the said documents were marked as Exs.X.4 to X.6. In cross examination, D.W.3 admitted that he used to read and write with spectacle. He himself personally conducted examination of documents and have no degree to determine the age of the inks and writings. But he adds that he have advanced training certificates from U.S.A., and apprenticeship certificate from Senior experts. He further admitted that it is not exactly jpossible to determine the age of the ink, if a person used a product of the ink belongs to the year, 2000 and he used to said pen and year in the year, 2009. He further stated that it depends upon particular type of ink whether the age can be determined or not in case the writings of the same pen flow with blunt writing and thin writing. As per his evidence, there is no specific technology in India to determine the exact age of the 12A.S.No.1 of 2017 Dt.10.12.2018.
ink and writings. As per his evidence, he had mentioned the density of the colour of the writings in his report as to which portion contains deeper shade of writings and which portions contains the lighter shade of contains. He further admitted that he has not mentioned in his report regarding the age of signatures marked Q3, Q1 and Q2. But he adds that the chronological difference can be perceived through the applications of different inks and pens in various portions of the tests of the writings as well as the nature of the interpolation. He further admitted that has not mentioned how many pens are used for preparing
Ex.A.1. He denied other suggestions. He denied a suggestion that thej pronote is belongs to the year 2009 and he was examined the same in the year 2016. he denied a suggestion that the ‘3’ digit in the amount and figures in Ex.A.1 has not been interpolated but written in normal course.
17.In view of the oral evidence on record and on perusal of documentary evidence, through P.W.1, Ex.A.1 is marked. On perusal of
Ex.A.1 with a nacked eye, it clearly shows that there is difference and interpolation in the amount of Rs.3,50,00000. Likewise, there was over tressing on the date i.e., 13.06.2009 i.e., “1” numerical. The suit is filed on 16.06.2011 and it is further shows that the address of the defendant was not mentioned in detail and it is a printed pronote. It is also not mentioned under Ex.A.1 that where the execution was taken place. The place of execution was not mentioned in Ex.A.1. On perusal of Ex.A.1, the defendant was signed in English but not in Telugu as stated by P.W.1 in his cross examination. Except Ex.A.1, the plaintiff did not produce any document to prove his case. As per the evidence of P.W.2, he mentioned the date under his signature, but no such dates were mentioned under Ex.A.1 under his signature. P.W.3 pleads ignorance about the date mentioned under Ex.A.1 in his cross examination.
13A.S.No.1 of 2017 Dt.10.12.2018.
18.On the other hand, to rebut the evidence of the plaintiff, the defendant produced Exs.B.1 to B.11. As per Ex.B.1, it shows that the defendant is resident of Seethammadhara, the same was issued in the year 2005 on 28.08.2005 but not at Gopalapatnam. Admittedly, the suit pronote was executed in the year 2009 and the plaintiff not produced any evidence on record to show that the defendant is resident of
Gopalapatnam by the time of execution of Ex.A.1. As per the contention of the plaintiff, the defendant received suit summons through his counsel engaged by him and he is resident of Gopalapatnam. D.W.1 further produced Ex.B.2 i.e., election card issued in his name with the address of Nakkavanipalem, Visakhapatnam. He further produced Ex.B.3 to show that he is resident of Seethammadhara, Visakhapatnam in the year 2009 and he enter into contract with LG Polymers India Private Limited,
Visakhapatnam and these are the original copies produced by him before the court. Ex.B.4 also shows that the house is situated in
Gopalapatnam is belongs to one Durgamahanti Srinivasa Rao but not the defendant. Ex.B.5 is the form 16A for the period from 01.04.2009 to 31.03.2010 where the address of the defendant is shown as
Seethammadhara, Visakhapatnam. Exs.B.6 to B.9 and B.11 are the cash vouchers and attendance register of the employees in Balaji
Engineering Company where the defendant is residing. Ex.B.10 also issued by Balaji Engineering company. It shows that the defendant appeared on behalf of the company for participating tenders on behalf of one D.Sarada who is wife of defendant. It clearly shows that as on the date of execution of Ex.A.1, the defendant is not resident of
Gopalapatnam and he is resident of Seethammadhara, Visakhapatnam having house bearing No.50398/2/1 which is situated in TPT colony, ward No.26, Visakhapatnam. It is further shows that one of the relative of defendant is purchased the plot bearing No.304 at Gopalapatnam but not by the defendant. Even the income tax returns filed by the defendant 14A.S.No.1 of 2017 Dt.10.12.2018.
shows that he is resident of Seethammadhara as on the date of execution of Ex.A.1 but not resident of Gopalapatnam.
19.Admittedly the plaintiff not produced any evidence on record to show that the defendant is resident of Gopalapatnam by the date of execution of Ex.A.1. Apart from that he was issued the cash vouchers to the employees of Balagi Engineering Company under Exs.B.8 and B.9 and also produced attendance register to show that as on the date of execution, he was at Visakhapatnam but not present at Jalumuru. Even for the sake of convenience, the said documents are created for the purpose of this case, the plaintiff did not choose to produce any evidence on record to show that the defendant is resident of Gopalapatnam to rebut the same.
20.In the above said circumstances, it clearly shows that as on the date of execution of Ex.A.1, the defendant is not resident of
Gopalapatnam and he is resident of Seethammadhara at
Visakhapatnam. Therefore, as per the address particulars mentioned under Ex.A.1, it clearly shows that the residential address mentioned as
Gopalapatnam. Even as per the admission of P.W.1, before lending money, he enquired about the address particulars of the defendant to mention the same under Ex.A.1. If the same is taken into consideration, it clearly shows that the plaintiff not made any enquiry and mention the same as per the information furnished by his brother namely
Jagannadha Rao who is working along with the father of the defendant in railway department at Bhilai.
21.There is no dispute that there were previous transactions between the defendant and brother of the plaintiff and as per the evidence of D.W.1, the nephew of Jagannadha Rao obtained his signatures on blank pronotes and blank papers as security. As per the evidence of P.W.1, the suit pronote was signed by the defendant in
Telugu language which is contrary to the documentary evidence and the 15A.S.No.1 of 2017 Dt.10.12.2018.
defendant signed on Ex.A.1 in English and further mentioned by the plaintiff that the attesters mentioned the dates, the same was deposed by
P.W.2 which is also contrary to the contents of Ex.A.1. As per the admission of P.Ws.1 to 3, all are belongs to Jalumjru village including scribe of Ex.A.1. As per his evidence, he himself and defendant brought the attesters and scribe for execution of Ex.A.1, but nothing elicited in cross examination of D.W.1 by the counsel for plaintiff how the defendant got acquaintance with P.Ws.2 and 3. The defendant elicited in cross examination clearly shows that P.Ws.2 and 3 have no prior acquaintance with D.W.1.
22.In the above said circumstances, this court safely came to conclusion that the plaintiff himself brought the attesters and scribe for preparing Ex.A.1 and the place of execution was not mentioned under
Ex.A.1. Admittedly the plaintiff not adduced any rebuttal evidence to show that the nephew of his brother namely Babi was not obtained the signatures of the defendant on a blank papers and blank pronote as security for the cash transaction between the defendant and brother of the plaintiff. On the other hand, it is point for consideration before trial court that whether plaintiff have sufficient income to lend huge amount to defendant as on the date of execution of Ex.A.1?
As per Exs.X.1 to X.3, the plaintiff is having agricultural lands and his income is shown as Rs.16,00000 per annum in the year 2006 and he is only agriculturist. He was not explained properly how he get such huge amount to lend the same to the defendant. Apart from that, as per the admission of P.W.1, he is having bank account in Jalumuru since 6 or 7 years, but not produced the same to prove his income before the court and to rebut the evidence produced by the defendant under
Exs.X.1 to X.3. As per evidence of D.W.3, the income of plaintiff is only
Rs.16,00000, even the amount send by his sons are considered, the income of plaintiff will only increased 1/4th of his annual income. As per 16A.S.No.1 of 2017 Dt.10.12.2018.
P.W.1, he used to maintain his family and making investment in agriculture. If the same is considered, there is no financial capacity to the plaintiff to lend such huge amount to defendant under Ex.A.1.
23.Apart from this, the defendant further send the suit pronote to handwriting expert and the expert given his opinion in favour of the defendant and against the plaintiff and further defendant examined
D.Ws.2 and 3 to prove the contents of Exs.X.1 to X.6 and nothing elicited contrary to the evidence on record to show that Exs.X.1 to X.3 are created documents and the plaintiff is having sufficient income to lend such huge amount to the defendant as on the date of execution of
Ex.A.1. Apart from that, the expert opined that (1) The writings of the tests of the document ie., Ex.A.1 marked as
Q1 and Q2 including the signature is marked as Q3 do not respond to chemical reaction on application reagents; (2) There is a primafacie of interpolated of digit ‘3’ in the originally existing writing fifty thousand to convert into Three lakh fifty thousand; (3) There is a multiple use of pens and inks in the execution of the tests of the writings on Ex.A.1; (4) Due to multiple use of pens and inks there is a prima facie evidence that the questioned document in Ex.A.1 has been executed in more than one sitting. This is also corroborated by the interpolated of digit ‘3’ in the original writing Rupees Fifty thousand; (5) A deeper shading of ink appears to have been used in words
Prasada Rao and the word rupaayalu in the said document; (6) due to the unspecified intervening period with regard to the execution of the writings in the tests of the documents there is a chronological difference not only among the writings themselves intercy but also between the signatures and the said writings marked Q1 and
Q2.
17A.S.No.1 of 2017 Dt.10.12.2018.
(7) There also appears in interpolated in the date 13 appearing in two places in the pronote through the adition of digit “1” because it shows a deeper intensity.
(8) The interpolated digit ‘3’ shows the lighter shading as compared due to test of the writings in the among in the writing Q1;
As per the opinion of the expert, the suit pronote was not prepared at a time and it was prepared with time gap and there was interpolation and difference in the shade of the inks of different portions as per the admission of D.W.3. But the trial court came to conclusion that by believing the evidence of P.Ws.2 and 3 that valid consideration was passed under Ex.A.1 as the plaintiff proved his case by examining them and by invoking the presumption in favour of the plaintiff and against the defendant. There is no doubt that once the plaintiff established his case to prove Ex.A.1, the presumption available under section 118 of NI
Act can be invoked in favour of the plaintiff and against the defendant and it is a rebuttable presumption.
24.Admittedly as per the oral evidence of P.Ws.1 and 2, it clearly shows that the defendant is not known person to P.Ws.2 and 3. As per the admission of P.W.1, the defendant signed in Telugu in Ex.A.1 and it is not a draft pronote and it is a printed proforma. It clearly shows that
P.W.1 had no knowledge about Ex.A.1. If really he is having knowledge of the same, he could have deposed to corroborate the contents of Ex.A.1 and able to give evidence properly. Apart from that the address particulars were also mentioned wrongly under Ex.A.1 as in view of the evidence produced by defendant, even Exs.B.4 to B.8 ignored, the other documents i.e., Exs.B.1 to B.3 clearly shows that the defendant is resident of Seethammadhara as on the date of execution of Ex.A.1 but not resident of Gopalapatnam as mentioned in Ex.A.1. Apart from that, it is further shows that as on the date of execution, the defendant is in
Visakhapatnam, but not came to Jalumuru and no rebuttal evidence is 18A.S.No.1 of 2017 Dt.10.12.2018.
produced by the plaintiff. But the trial court wrongly came to conclusion that the defendant came to the house of the plaintiff and executed the suit pronote in the presence of P.Ws.2 and 3 by receiving valid consideration under Ex.A.1 and disbelieve the documentary evidence produced by the defendant under Exs.B.1 to B.3 and Exs.X.1 to X.3.
25.As per the decision reported in a case of Dutti Kameswari and others Vs. Marrapu Lakshmunaidu and others in Civil Revision
Petition Nos.3031 to 3048 of 2015, dated 11.12.2015 held that “In view of the above analysis the xerox copy certified by the designated Public Information Officer under Right to Information Act of the private documents are not certified copies within the meaning of the provisions of Section 65 of the Evidence Act. They are merely true copies of the private documents available in the records of the particular Department? The production and marking of such copies is permissible only after laying a foundation for acceptance of secondary evidence under clauses (a) (b) or (c) of Section 65 of the Act. The condition prescribed under the above cases (a) (b) or (c) of Section 65 of the Act have to be fulfilled before marking the true copies obtained under the Right to Information Act. However the true copies of public documents certified by the designated Information Officer can be taken as certified copies of the public documents. Thus in C.R.P.No.3031 of 2015 since the documents sought to be produced are true copies of the public documents those documents can be treated as certified copies whereas in C.R.P.No.3048 of 2015 the documents now sought to be produced are true copies of registered sale deeds they can be marked as secondary evidence if the party seeking to mark those documents fulfills the conditions prescribed under Section 65 (a) to
(c) of the Act. In view of the above the C.R.P.No.3031 of 2015 is dismissed and C.R.P.No.3048 of 2015 is disposed of with the above observations. No costs.”
The defendant made an application before Tahsildar, Jalumuru
Mandal to obtain income particulars of the plaintiff under Right to
Information Act and obtained certified copies and proved the said contents by examining D.W.2. Therefore, in view of the above decision, the same can be admissible in the eye of law. Per contra, the defendant did not produce any rebuttal evidence to show that he is having sufficient income to lend such huge amount to the defendant as on the date of execution even the plaintiff fails to produce his account particulars to show that the income which is getting on his agricultural 19A.S.No.1 of 2017 Dt.10.12.2018.
lands. Even as per the admission of P.W.1, he used to spent amounts for his family expenses and further on agriculture lands and he obtained white ration card where his income is shown as Rs.16,00000 per annum. Even the admission of P.W.1 is believes that the sons of P.W.1 is working at Hyderabad who are studied only Intermediate, so there is no chance to get more income by the sons of the plaintiff to send the same to their parents after deducting living expenses to them.
26.In the above said circumstances, the trial court fails to appreciate the evidence on record wrongly and came to conclusion that the plaintiff is having sufficient means to lend such huge amount to the defendant as on the date of execution of Ex.A.1 without any base. Apart from that D.W.3 admitted in cross examination that he has taken training at U.S.A., and other experts for estimate the ink of age of Ex.A.1 and assigned valid reasons for his conclusions, the same was not shattered in cross examination. In the above said circumstances, by coupled with oral and documentary evidence, it clearly shows that no consideration was passed under Ex.A.1 as on the date of execution and no notice was issued by the plaintiff to the defendant before filing the suit.
27.Admittedly as per the version of plaintiff, he send the mediators for repayment of the amount and that the defendant compromised and offered Rs.2,00,00000 to him to pay under Ex.A.1. To p[rove the same, the plaintiff not examined the elders and also not mentioned their names in his pleadings. Therefore, there is no any strength in the evidence produced by the plaintiff in the absence of such pleadings. Therefore, the same cannot be admissible in the eye of law.
28.In the above said circumstances, it clearly shows that under
Ex.A.1 no consideration was passed and it is given as a security to the money taken by the defendant from the brother of the plaintiff and the same was not returned after repayment of the same to the defendant and 20A.S.No.1 of 2017 Dt.10.12.2018.
misused the same for creating Ex.A.1 with the help of attesters and scribe who are belongs to the village of the plaintiff and the trial court fails to assigned valid reasons to disbelieve the evidence of expert and decreed the suit in favour of the plaintiff and against the defendant.
Therefore basing on oral and documentary evidence on record, this court safely came to conclusion that plaintiff fails to prove the suit pronote and its execution and consideration passed there on in the presence of attesters.
29.In the above said circumstances, the trial court wrongly appreciated the evidence on record and came to conclusion that under
Ex.A.1, the plaintiff had given an amount of Rs.3,50,00000 to the defendant with interest @ 12% per annum and that the same was proved by him by examining P.Ws.2 and 3 by leading cogent evidence. In the above said circumstances, this court hold that the judgment and decree
dated 01.06.2016 in O.S.No.`73/2011 passed by the learned Principal
Senior Civil Judge, Srikakulam is liable to be set aside and consequently
the suit shall be liable to be dismissed as there is lack of merits in the appeal.
30.In the light of my findings given above, the appeal is to be allowed with costs throughout.
31.In the result, the appeal is allowed, with costs through out by setting aside the decree and juddgment passed in O.S.No.173/2011,
dated 01.06.2016 by the Principal Senior Civil Judge, Srikakulam and
consequently the plaintiff’s suit in O.S.No.173/2011 is dismissed with costs.
Typed to my dictation, corrected and pronounced by me in open court, this the 10th day of December, 2018.
Sd/Smt.V.B.Nirmala Geethamba
Principal District Judge,
Srikakulam.
Copy to the Principal Senior Civil Judge, Srikakulam.
21A.S.No.1 of 2017 Dt.10.12.2018.