HON’BLE SRI JUSTICE P.SWAROOP REDDY A.S. No. 647 of 2001 JUDGMENT: This appeal is filed by the appellant-plaintiff against the judgment of the learned II Additional District Judge, Vijayawada, passed in O.S.No.17 of 1998 filed by him for recovery of Rs.5,82,630/- on the basis of khata. According to the plaintiff, it is a registered firm carrying on business in dry fish, having its office at Vijayawada. The first defendant is a Firm carrying on poultry business at Undrajavaram and D.2 is its Managing Partner. The defendant used to purchase dry fish from the plaintiff for the purpose of Poultry business. Towards supplies made between 12.10.1994 and 10.03.1997 the defendants were due an amount of Rs.4,12,286-25 ps to the plaintiff on the basis of khata. On 09.07.1996, the second defendant after verification of accounts, agreed to pay a lump sum amount of Rs.2500/- towards interest making a total sum of Rs.4,14,786-25 ps. and gave a letter dated 09.07.1996 and also issued seven cheques for the due amount of Rs.4,14,786-25 ps. When the cheques were presented by the plaintiff for collection, they were returned with endorsement of ‘exceeds arrangement’. The plaintiff filed complaints under Section 138 of the Negotiable Instruments Act. By the date of filing the suit, the criminal cases were pending. The defendants filed a very brief written statement disputing the contents of the plaint contending that the suit is barred by limitation, the account copy filed with the plaint is incorrect and subsequent to filing of the suit, they paid Rs.1,50,000/-. On the basis of the pleadings, the Trial Court framed the following issues for trial : 1) Whether the account copy filed with the suit is true and correct and binding on defendants? 2) Whether the discharge pleaded by defendants is true and correct and binding on plaintiff? 3) Whether the suit claim is barred by time as pleaded by defendants? 4) To what relief? On behalf of the plaintiff, only P.W.1 was examined and Exs.A.1 to A.9 were marked, out of which, Exs.A.1 to A.3 are the extracts of accounts, Ex.A.4 is the letter said to have been issued by the second defendant in favour of the plaintiff, Ex.A.5 is the office copy of legal notice issued by the plaintiff to the defendants, Ex.A.6 is the copy of Form-C, Exs.A.7 and A.8 are the postal acknowledgments and Ex.A.9 is the partnership deed dated 01.09.1996. On behalf of the defendants, the second defendant was examined as D.W.1 and no documentary evidence was adduced. On the basis of the evidence available on record, the learned trial Judge dismissed the suit mainly for the reason that the extracts of the account books are not proved, as the originals are not filed. Apart from this, the learned Judge relied on Section 34 of the Indian Evidence Act in support of his findings. The contention of the learned counsel for the appellant is that there is positive evidence on behalf of the plaintiff for proving the case against the defendants. The entries marked as Exs.A.1 to A.3, which are extracts of the Khata, were compared by the trial Court with the originals. As such, Section 34 of the Indian Evidence Act would not come to the rescue of the defendants especially when the defendants, who received the notice Ex.A.5 never chosen to give any reply. He further submitted that the second defendant executed Ex.A.4 showing the amounts due and he also issued cheques for those amounts, which would amply prove the case of the plaintiff and that the learned trial Judge had erroneously dismissed the suit. The contention of the learned counsel for the respondents/defendants is that Exs.A.1 to A.3 were not at all compared with originals by the trial Court and that at the time of filing of the suit, the office of the Court has compared Exs.A.1 to A.3 with originals, that is of no use. The defendants never executed Ex.A.4 and there is no evidence to prove the case of the plaintiff and finally prayed to dismiss the appeal. The point for consideration is “Whether there are any grounds to allow the appeal?” As far as the question of Exs.A.1 to A.3 not being compared with originals is concerned, the contention of the defendants appears to be correct. Whatever comparison was made was apparently by the office of the Court when the suit was numbered. Either the deposition of P.W.1 or the endorsement on Exs.A.1 to A.3 would show that there was comparison of these extracts with the originals and the originals were not available in the Court at the time of recording of evidence. As such, much reliance cannot be placed on Exs.A.1 to A.3, no doubt, those extracts can be taken as supporting circumstance to the other material available to prove the case of the plaintiff. Now it has to be seen as to whether there is any conclusive material to prove the case of the plaintiff. The plaint is specific that amounts were due towards supplies made between 12.10.1994 to 10.03.1997, about the letter dated 09.07.1996, which is signed by the second defendant, and the plaint is also specific about issuance of seven cheques towards the dues and about the notice being issued on 03.03.1998, which the defendants acknowledged. In written statement there is no specific denial of the averments made in the plaint. In para 3 of the written statement, the defendants alleged that the account copy filed along with the plaint is incorrect and some of the payments made by the defendants are not given due credit. In the entire written statement, nowhere, the defendants have stated that they were not due the amounts mentioned in the plaint. Para 3 of the written statement is an implied admission by the defendants that the amounts mentioned in the plaint are correct. Para 4 of the written statement shows that the entire amount due to the plaintiff was paid and no amount was due to him, here also there is no specific averment with regard to quantum of the amounts. Para 5 of the written statement shows that the amounts, which were not shown in the account, were brought to the notice of the plaintiff in the presence of respectable persons and mediators and the plaintiff has agreed to deduct those amounts and promised to file a memo to that effect into the Court, but he did not do so. This plea taken in the written statement gives a different kind of explanation and the defendants never chose to examine any one to prove that any such thing has happened. In case, there were any wrong entries in the account and any mediation has taken place in the presence of any persons, such persons ought to have been examined, but no such persons were examined and even the second defendant himself did not speak of such things in his evidence. In his evidence, D.W.1 denied about Ex.A.4, receipt, being signed by him, but the comparison of his signature on Ex.A.4 with the signature found on the written statement would show that prima facie Ex.A.4 was issued by him only. However, I am not relying on Ex.A.4 in the absence of any authentic evidence like the opinion of hand writing expert, etc. with regard to the same. But, there are other supporting circumstances of the defendant like issuing cheques for those amounts that were found to be due from the date of Ex.A.4, in his written statement or in the evidence, the second defendant denied those things. The admission of the second defendant about issuance of cheques for those amounts, for which, in fact, criminal cases were filed on account of dishonour of the same, would support the case of the plaintiff. D.W.1 in his evidence did not say that the amount shown to be due is not correct. He has stated that he need not pay the amount of Rs.4,12,000/- as shown in the account copy. He stated that he has to pay only Rs.1,50,000/- and that the transactions mentioned in the account copy are incorrect. Thus, he wanted to say that he is due only Rs.1,50,000/-. But, in the cross examination, D.W.1 admitted about his receiving the notice issued by the plaintiff and said that he did not give any reply and record reveals that he received the notice. When he received the notice, in case, the claim of the plaintiff is incorrect, the defendant ought to have issued a reply. In these circumstances i.e. non-specific denial in the written statement, the absence of specific denial in the evidence and issuance of cheques for the suit amount, which were dishonoured, criminal cases filed for the same, non-reply to Ex.A.5 notice issued by the plaintiff and the subsequent payment of Rs.1,50,000/- after filing of this suit, would all go to show that the case of the plaintiff is true. It is also contended on behalf of the defendants that the criminal cases were withdrawn as the amounts payable were agreed to be settled at Rs.1,50,000/- which was paid. According to the plaintiff, the defendants agreed to pay the balance amount and as such in good faith, he has withdrawn the criminal cases, but thereafter the defendant refused to pay the balance amount. In case, there was any settlement between the parties in a particular manner that ought to be recorded any where, further more, in case the agreement between the parties was to withdraw the suit on payment of Rs.1,50,000/-, the defendant would have obviously taken steps to get the present suit also closed simultaneously when the amount of Rs.1,50,000/- was paid, in case that was the amount agreed to be received by the plaintiff towards full settlement of the entire transaction. All these circumstances, though much reliance cannot be placed on Exs.A.1 to A.3, prove that the defendants were due the suit amount to the plaintiff. Therefore, I hold that the learned trial Judge has erroneously dismissed the suit. Accordingly, the impugned judgment and decree are set aside and the suit is accordingly decreed for Rs.4,12,286-25 ps with interest @ 9% per annum from the date of suit till final realization. Out of this amount an amount of Rs.2,00,000/-, which was admittedly paid, has to be deducted and the interest shall be proportionately calculated only on Rs.2,12,286-25 ps. Accordingly, the appeal is allowed with costs. _____________________ P.SWAROOP REDDY,J 4th August, 2009 SUR