IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTYSECOND DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.216 of 2011 Between: Uppala Sathyanna .. Appellant AND Akarobu Narasimha Swamy .. Respondent JUDGMENT: The second appeal is directed against the judgment and decree in A.S.No.117 of 2007 on the file of the Judge, Family Court-cum-Additional District Judge, Mahabubnagar, dated 31-05- 2010 by which the judgment and decree in O.S.No.35 of 2004 on the file of the Senior Civil Judge, Nagarkurnool, dated 20-02-2007 were interfered with partly while being confirmed partly. The parties are referred to herein as they are arrayed before the trial Court. The plaintiff filed the suit for recovery of Rs.1,87,500/- with interest at 24% p.a. and costs, alleging borrowal of Rs.1,00,000/- under a promissory note dated 6-8-2001 agreeing to repay the same with interest, but failing to repay the same in spite of demands. The defendant resisted the suit contending that the plaintiff was requested to arrange a loan of Rs.60,000/- for the family necessities of the defendant’s brother, Sankarayya for which the defendant agreed to stand as surety and after a registered mortgage deed was executed by Sankarayya, brother of the defendant, the amount was advanced by the plaintiff. At that time, the plaintiff obtained three blank cheques and signatures on some blank papers from the defendant as a security for the loan and the defendant paid the amounts from time to time totalling to Rs.1,21,036/- by 16-09-2001. The remaining interest amount of Rs.3,000/- and odd was also paid, but the plaintiff did not return the documents and cheques making some wrong calculations about the amounts being still due. The plaintiff taking advantage of the cheques and signed papers got the suit filed though the defendant never borrowed the suit amount and never executed the suit promissory note. Hence, the defendant desired the suit to fail. The trial Court framed the issues about the entitlement of the plaintiff to recover the suit amount and during trial, it examined PWs.1 and 2 and DWs.1 and 2 and marked Exs.A.1 and A.2 and B.1 to B.6. The trial Court in its judgment noted that the defendant admitted the signatures on Ex.A.1 promissory note and the plaintiff as PW.1 and the scribe as PW.2 spoke about the suit transaction. DWs.1 and 2 claiming that Exs.A.1 and A.2 were signed without any consideration and filled up by PW.1 later were not believed by the trial Court, while the evidence of PW.2 notwithstanding that he is the brother’s son of PW.1 was considered not liable to be disbelieved. The cheques referred to by the defendants, which are subject matter of S.T.C.No.227 of 2008, were not considered to be related to this transaction and the suit was decreed with future interest at 24% p.a. and costs. In appeal, the First Appellate Court by the impugned judgment reconsidered the rival contentions and evidence and the conclusions of the trial Court and opined that DW.1 admitted his signatures on Exs.A.1 and A.2-the promissory note and receipt and the evidence on record was not helpful to the defendant to establish the promissory note being fabricated on a signed blank paper. The First Appellate Court noted that the cross-examination of PW.1 and PW.2 did not elicit anything in support of the defence and Exs.B.1 to B.6 were also considered unhelpful in this regard. The First Appellate Court accepted the evidence of PWs.1 and 2 as establishing the borrowal of Rs.1,00,000/- under Ex.A.1- promissory note and it also relied on the presumption under Section 118 of the Negotiable Instruments Act in this regard which in its opinion came to the aid of the plaintiff on the admission of the signatures on the promissory note by the defendant. While upholding the judgment and decree of the trial Court in every other respect, the grant of future interest at 24% p.a., was considered unsustainable and it was reduced to 6% p.a. The defendant challenged the First Appellate Court’s judgment in this second appeal on grounds of the Courts below comparing the signatures on the suit promissory note without obtaining any expert opinion or taking assistance of any mechanical devices. Ex.A.1 was claimed to be not satisfying the requirements of a demand promissory note. Documents Exs.B.1 to B.6 were claimed to have not been considered. The filing of the suit only after a notice from DW.2 to return the registered mortgage deed and other documents ought to have been appreciated, and hence, the defendant desired the judgment and decree to be reversed. Sri C.V. Bhaskar Reddy, learned counsel for the appellant is heard at the stage of admission. The point for consideration is whether there is any substantial question of law that is involved in the second appeal to enable entertainment of the same by the High Court? The reference in the grounds of appeal to comparison of the signatures by the Courts below is not borne out by the record as the conclusions of the Courts below about the probabilities arising out of the evidence were based on the admission of DW.1 of his signatures on Exs.A.1 and A.2 and not any comparison with a naked eye of the said signatures. The suit promissory note- Ex.A.1 is not shown in any manner to be not satisfying the requirements of a demand promissory note and the disbelief of the Courts below about Exs.B.1 to B.6 or the payments made under them not being connected with the suit transaction was based on an analysis of the evidence on record by the Courts below independently in their respective judgments. Though the attestor of Ex.A.1 was not examined and though the scribe of the promissory note could not have been ex facie considered as an attestor, the question of not answering any requirements of Section 68 of the Evidence Act as contended by the learned counsel for the appellant may not arise in view of the admission of DW.1 during his cross-examination about his signatures on Ex.A.1-promissory note and Ex.A.2-receipt, which was considered by the Courts below to be amounting to an admission of due execution of the promissory note. The First Appellate Court consequently taking recourse to the statutory presumption in favour of consideration under Section 118 of the Negotiable Instruments Act cannot be considered improper or illegal and the non-reply by the plaintiff to the legal notice-Ex.B.4 and the filing of the suit only after such a legal notice may be circumstances about the conduct of the parties prior to the suit, but on an overall appreciation of such circumstances, the Courts below concluded the questions of fact in favour of the plaintiff. The First Appellate Court is normally considered a final Court of fact finding, interference with which findings of fact by the Second Appellate Court is an exception but not the rule. The facts and circumstances of the case do not present such an exceptional necessity to interfere even on questions of fact and it is well settled that unless there is a substantial question of law, which can be formulated by the High Court, a second appeal cannot be maintained. The second appeal, therefore, does not appear sustainable. Accordingly, the second appeal is dismissed without costs at the stage of admission. _____________________ G. BHAVANI PRASAD, J Date: 22-09-2011 Ksn