APHC010919452017 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3367] FRIDAY,THE SEVENTEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE V SRINIVAS APPEAL SUIT NO: 116/2018 Between: 1. GOGULA MUNICHANDRAIAH, S/O. MUNIKRISHNAIAH, HINDU, AGRICULTURIST, RESIDING AT CHERI VILLAGE, IRUGALAM POST, SATYAVEDU MANDAL, CHITTOOR DISTRICT ...APPELLANT AND 1. C V RAMAIAH, S/o. C.V.V.Veeraswamy, Hindu, Agriculturist, Residing at Cheri Village, Irugalam Post, Satyavedu Mandal, Chittoor District. ...RESPONDENT Against the Judgment and Decree in OS.No.8 of 2013 on the file of the Senior Civil Judge, at Srikalahasthi, dated. 17.07.2017 IA NO: 1 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased Counsel for the Appellant: G RAMESH BABU Counsel for the Respondent: V VINOD K REDDY The Court made the following: 2 JUDGMENT: This regular appeal under Section 96 Code of Civil Procedure (hereinafter referred to as 8CPC9) is directed against the decree and judgment in O.S.No.8 of 2013 dated 17.07.2017 on the file of the Court of learned Senior Civil Judge at Srikalahasthi. 2. The defendant, before the Trial Court, is the appellant herein. The respondent herein is the plaintiff. 3. The respondent instituted a suit against appellant for recovery of an amount of Rs.8,87,366/- based on Ex.A.1 promissory note dated 05.11.2010. 4. Before adverting to the material and evidence on record and nature of findings in the judgment of the Trial Court, it is necessary to scan through the case pleaded by the parties in their respective pleadings. 5. For the sake of convenience, the parties hereinafter referred to as they arrayed before the trial Court. 6. The case of the plaintiff in brief in the plaint was as follows: 3 i) . On 05.11.2010, the defendant borrowed an amount of Rs.7,00,000/- from the plaintiff for his family and business necessities by executing Ex.A.1 promissory note in favour of plaintiff, agreed to repay the same together with interest at 12% per annum, whenever demanded by the plaintiff or on his order on demand. ii) Inspite of repeated demands made by the plaintiff, the defendant did not repay the debt amount. Even after receipt of Ex.A.2 legal notice dated 08.01.2013, the defendant did not choose to pay any amount to the plaintiff instead of issuing Ex.A.3 reply. Hence, the suit. 7. The defendant denying the allegations in the plaint and contending in the written statement as follows: i). He issued a reply notice with true facts, however, due to inadvertence on the part of his 4 counsel, it was mentioned that he is a poor person eking out his livelihood by doing coolie work on daily basis, but, in-fact, he is a wealthy person and he owned Ac.4.60 cents of land and cultivating the same. ii). When the defendant started constructing a house, the plaintiff, and his brother-in-law by name Gurunadham obstructed the defendant from constructing the house. The defendant resisted their unlawful acts and prevented them from entering into his lands. He also filed O.S.No.50 of 2012 against the plaintiff and his brother-in-law for declaration of title and permanent injunction, the same is pending. He got an exparte injunction order and the same is still in force. iii). With a view to take revenge against him, the plaintiff has fabricated the suit promissory note by forging the signatures of the defendant. 5 He is not doing any business as alleged by the plaintiff. The present case is filed by the plaintiff only as a counterblast to the suit filed by him in O.S.No.50 of 2012 with false and baseless allegations. Hence, prays to dismiss the suit with costs. 8. On these pleadings, the trial Court settled the following issues for trial: <1.Whether the suit pronote is forged and fabricated one and that it is not supported by consideration? 2.Whether the plaintiff is entitled to recover the suit amount from the defendant as prayed for? and 3.To what relief?= 9. At the trial, on behalf of the plaintiff, P.Ws.1 and 2 were examined while relying on Exs.A.1 to A.3 in support of her contentions. On behalf of the defendant, he was examined as D.W.1 and marked Ex.B.1. 6 10. Basing on the material and evidence, the Trial Court came to conclusion that the suit promissory note, dated 05.11.2010 is fully supported by consideration and that the plaintiff is entitled to recover the entire suit amount from the defendant, and thus, decreed the suit. 11. It is against this decree and judgment, the appellant/defendant preferred this appeal. 12. Heard Sri G.Ramesh Babu, learned counsel for the appellant/defendant and Sri Shivakalpana Reddy, learned counsel representing Sri V.Vinod K.Reddy, learned counsel for the respondent/plaintiff. 13. Sri G.Ramesh Babu, learned counsel for the appellant/defendant submits that there are material contradictions in the testimony of P.Ws.1 and 2, which are not considered by the Trial Court to disbelieve the case of the plaintiff; that Ex.B.1 is a material document to show that there was no consideration passed under Ex.A.1 promissory note as on the date of execution, but the same is not considered by the Trial Court to appreciate the case of the 7 defendant in proper perspective; that the defendant has no necessity to borrow such amount from the plaintiff; that the present suit is filed only as a counterblast to the suit filed by the defendant in O.S.No.50 of 2012; that the Trial Court failed to appreciate the material on record in proper perspective and erroneously decreed the suit; that the findings of the trial Court are bad in law and thereby prays to consider the present appeal. In support of the above contentions, he relied upon a pronouncement of this Court in P.Venkatamma v. Dontham Sulochana1. 14. Per contra, Sri Shivakalpana Reddy, learned counsel representing Sri V.Vinod K.Reddy, learned counsel for the respondent/plaintiff strenuously contends that the plaintiff proved the execution of Ex.A.1 by examining him as well one of the attestor as P.W.2; that the defendant did not deny his signature on Ex.A.1 by sending the same to the handwriting expert; that testimony of P.Ws.1 and 2 coupled with Exs.A.1 and A.2 categorically established the case of the plaintiff; that 1 2005 Supreme (AP) 796 8 the defendant executed Ex.A.1 under due consideration; the defence taken by the defendant is contra to the reply notice sent by him under Ex.A.3, which shows the falsity in the defence taken by him; that the trial Court on considering the facts and circumstances, material on record rightly decreed the suit; that there are no valid grounds to interfere with the judgment of the Trial Court and that the appeal is liable to be dismissed. 15. Against this backdrop, the following points now require consideration and determination: 1. Whether the promissory note under Ex.A.1 was passed for consideration? 2. Whether the plaintiff has successfully established his entitlement to the suit amount as claimed in the plaint? and 3. To what relief? 16. POINT NOs.1 & 2 : Before deciding these points, it is relevant to mention the observations made by the Hon9ble Supreme Court in a 9 recent judgment in Rama KT.Barman v. MD.Mahim Ali2, which are as follows: <It is well-settled principle of law that the Court cannot create any new case at the appellate stage for either of the parties, and the appellate court is supposed to decide the issues involved in the suit based on the pleadings of the parties.= 17. It is also the well settled legal proposition that initial burden of proof of document must be discharged by the plaintiff. Then the onus of proof of the document or otherwise shifted to the defendant. For which, this Court fortified by a judgment in B.Mallamma v. V.T.V.Rangachary3. 22. In this connection, it is also relevant to mention a judgment of this Court in A.Ramireddy v. A.Rajareddy4, in which it was held that: <The fundamental principle that when the suit transaction is denied, the burden necessarily be shifted to the plaintiff to prove the genuineness of the said document………= 2 2024 INSC 644 3 1997 (3) APLJ 39/ 1997 (6) ALT 36 4 1997 (1) APLJ 65 10 23. As back in the year 1987, the Division Bench of this Court in G.Vasu v. Sayed Yaseen Sifuddin Quadri5, held that: <Even with reference to Section 101 to 103 of Evidence Act and Section 118 of Negotiable Instruments Act, the burden of proof undisputedly lies on the plaintiff. It has to be seen that the plaintiff has to fully discharge his burden. The settled law is that when the plaintiff proved due execution of the promissory note by the defendant in his favour, the statutory presumption contemplates under Section 118(a) of Negotiable Instruments Act, that is to say every negotiable instrument was made or drawn for consideration arrived in favour of the plaintiff.= 24. In this connection, keep in mind another judgment of Apex Court in Bharat Barrel And Drum Manufacturing Company v. Amin Chand Payrelal6, in which the Hon9ble Supreme Court held that: <Once execution of the promissory note is admitted, the presumption under Section 118(a) of Negotiable 5 AIR 1987 AP (139) 6 AIR 1999 SC 1008 11 Instruments Act would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case where the defendant fails to discharge the initial onus of proof by showing the non- existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) of Negotiable Instruments Act in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence 12 as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the Court may either believe that the consideration did not exist or its none existence was probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist.= [ 25. In the backdrop of the above legal propositions as stated supra, undoubtedly the initial burden to prove the execution of Ex.A.1 under consideration lies on the plaintiff. To prove the same, the plaintiff examined himself as P.W.1 and, during his chief examination, he reiterated the averments made in the plaint. In support of his case, the plaintiff also got examined P.W.2, who is one of the attestor of Ex.A.1 promissory note. His examination was essential to 13 comply with the statutory requirements under Section 68 of the Indian Evidence Act, 1872, which mandates the production of at least one attesting witness to prove the execution of a document required by law to be attested. 26. P.W.2 categorically testified about the execution of Ex.A.1 promissory note by the defendant at the house of the plaintiff on receipt of consideration of Rs.7,00,000/- from the plaintiff. The testimony of P.Ws.1 and 2 is corroborated with each other and nothing substantial material elicited during their cross examination to disbelieve the case of the plaintiff. 27. It is the prime contention of the defendant that he has no necessity to borrow such amount from the plaintiff, since he is a wealthy person. But contra to the said contention, he issued reply under Ex.A.3 stating that he is residing in a hut and eaking out his livelihood by doing coolie work on daily basis. The said fact was admitted by D.W.1 during cross examination. Even he further admitted that now also he is residing in a hut. He also admitted that previously he had 14 bank balance, but at present he is not having any bank balance. 28. Furthermore, it is the categorical testimony of P.Ws.1 and 2 during cross examination that the defendant borrowed such amount under Ex.A.1 promissory note for the purpose of his family expenses. Thereby, the contention raised by the defendant that since he is a wealthy person, he has no necessity to borrow such amount from the plaintiff has no legs to stand. 29. It is also the contention of the defendant that Ex.A.1 is a forged document and the signature on Ex.A.1 does not belong to him. To substantiate the said contention, the defendant has not placed any piece of material before the Trial Court or not even taken any prudent steps. Indeed, even he filed a petition under Section 45 of the Indian Evidence Act to send the disputed signatures to compare the same with admitted signatures by the handwriting expert, the same was not pressed by him without assigning any reason. When it comes to the testimony of D.W.1 regarding the said aspect, 15 at one stretch he denied his signatures available on his chief examination affidavit, written statement, and Vakalat by stating that he put the said signatures at the request of his advocate. He does not know the contents of his chief affidavit, but it was read over to him, and he do not remember the same. Such type of demeanor of the defendant during his examination was categorically observed by the Trial Court. It is also not in dispute that no explanation was put forth by the defendant as to why he did not give any report to police if really his signatures were forged by the plaintiff. On perusal of Ex.A.2 shows the signatures of defendant on the revenue stamp as well underneath the stamp as executant. Thereby, the contention of the defendant that his signature on Ex.A.2 is a forged one is unsustainable. 30. Furthermore, it is contended by the learned counsel for the defendant that as per Ex.B.1 no consideration was passed under Ex.A.1 as on the date of its execution and the present suit is filed as counterblast to the suit in O.S.No.50 of 2012 filed by the defendant against the plaintiff. But when 16 it comes to the testimony of P.W.1 during cross examination itself, the suit promissory note was executed on the same day when he borrowed an amount of Rs.7,00,000/- to the defendant. Even if the contents in Ex.B.1 written statement is considered, it is an admitted fact that the defendant borrowed an amount of Rs.7,00,000/- from the plaintiff and in respect of the same he executed Ex.A.1 promissory note. But the defendant, on the other hand, has taken a contra plea that the signature on Ex.A.1 is a forged one and does not belong to him. Furthermore, the Ex.B.1 categorically specified the amount borrowed by the defendant and date of Ex.A.1, otherwise, it is not helpful to the case of the defendant, when the plaintiff categorically proved his case by examining P.W.2 and producing Exs.A.1 to A.3. On perusal of Ex.A.2, the plaintiff got issued pre-suit notice demanding the defendant to pay the suit amount. Indeed, pending the suit between the plaintiff and defendant for declaration of title and permanent injunction against the plaintiff herein cannot disprove the 17 claim made by the plaintiff in the present suit when he is able to prove his case with substantial material on record. 31. In view of the above discussion, the plaintiff well established before the Trial Court by the testimony of P.Ws.1 and 2 coupled with Exs.A.1 to A.3 that the defendant borrowed an amount of Rs.7,00,000/- from him on execution of Ex.A.1. 32. It is needless to say that the pronouncement of this Court relied upon by the learned counsel for the defendant in P.Venkatamma case (referred to supra) is not applicable to the present facts of the case, since the plaintiff herein categorically proved his case that Ex.A.1 was passed under due consideration. 33. Now it has to be seen whether the defendant rebutted the presumption by adducing any substantial piece of evidence. As stated supra, only the self-serving testimony of defendant as D.W.1 and Ex.B.1, nothing substantial material placed on record to disprove the case of the plaintiff and prove his contentions. Moreover, none of the grounds urged 18 by the appellant/defendant to say that his defense is acceptable rather than the case of the plaintiff. Thereby, the plaintiff is entitled for the suit claim. These points are answered accordingly. 34. POINT No.3: In view of the findings on point Nos.1 and 2, this Court does not find any valid grounds to interfere with the well- articulated judgment passed by the trial Court, as such this Court is unable to found any merits in the appeal and the same is liable to be dismissed. 35. In the result, the appeal is dismissed by confirming the decree and judgment passed in O.S.No.8 of 2013 dated 17.07.2017 on the file of the Court of learned Senior Civil Judge at Srikalahasthi. There shall be no order as to costs. Interim orders granted earlier, if any, stand vacated. Miscellaneous petitions pending, if any, stand closed. ____________________ JUSTICE V.SRINIVAS Date: 17.10.2025 Krs 19 281 THE HON’BLE SRI JUSTICE V.SRINIVAS APPEAL SUIT No.116 of 2018 ( JUDGMENT ) DATE: 17.10.2025 Krs