IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRTY FIRST DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION No.1214 OF 2007 Between: Mandalapu Anjaneyulu ..... PETITIONER AND Guduri Narayanamma ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION No.1214 OF 2007 ORDER: This revision is filed against the judgment and decree, dated 17.11.2006, in Small Cause Suit No.6 of 2005, on the file of the Senior Civil Judge, Addanki. Respondent herein is Plaintiff in the suit. The plaintiff filed the suit for recovery of suit amount. The allegation in the plaint goes to show that the petitioner/defendant has borrowed a sum of Rs.6,900/- from one Shaik Mastan, S/o. Peda Saida of Vellacheruvu on 01.08.1995 and executed a Promissory Note in favour of him agreeing to pay the same with interest at 24% per annum. On 01.06.1997, Shaik Mastan transferred the said Promissory Note in favour of the plaintiff for a consideration of Rs.8,418/- and in spite of demands made by the plaintiff orally and in writing by way of notice, the defendant failed to pay the amount. 2. The petitioner/defendant filed a written statement contending that the suit Promissory Note is a forged one and that the defendant did not execute the Promissory Note and no consideration was paid. He contended that his wife purchased an extent of Ac.0-92 cents of land from the plaintiff on 01.08.1995 under a registered sale deed. He paid the entire sale consideration and possession was also delivered to them. But, in the said sale deed the Survey Number of the land was wrongly shown. Subsequently, he and his wife came to know of it and requested the plaintiff to execute a rectification deed with correct Door Number and also to get another deed from Gadiparthi Ramalakshmaiah, from whom the plaintiff obtained the sale deed originally. On 28.09.1995, the plaintiff executed a rectification deed with correct Door Number and represented that Gadiparthi Ramalakshmaiah fell sick and it is her responsibility to get the rectification deed with correct Door Number. But she did not do so as promised by her. When the defendant approached the Revenue Department for issuance of a passbook, the Revenue Department refused to grant the passbook to the defendant and his wife. The defendant informed the same to the plaintiff and pressed for the rectification document with correct Door Number. Then the plaintiff demanded for another sum of Rs.30,000/- as the value of the land was increased. Then a galata had taken place and the defendant and his wife threatened that they will file a suit against the plaintiff and take action against her and recover damages also. Keeping the above dispute in mind, the plaintiff got forged the Promissory Note with the help of Shaik Mastan, the alleged attesters, scribe and her son-in-law. As the passbook was not issued in favour of defendant's wife in respect of the property purchased by her from the plaintiff, the defendant and his wife could not utilize the property for some other purposes, except for cultivation. The defendant is having disputes with his younger brother. Taking undue advantage of it, all of them colluded together and fabricated the suit Promissory Note. Therefore, the alleged transfer of Promissory Note in favour of the plaintiff for consideration is not valid and it is not supported by any consideration. Therefore, the defendant pleaded for dismissal of the suit. 3. On behalf of the plaintiff, PWs.1 to 5 were examined and EXs.A1 to A3 were got marked. On behalf of the defendant, he himself was examined as DW.1 and Exs.B1 to B11 were got marked. 4. After considering the evidence on record, the learned Senior Civil Judge decreed the suit of the plaintiff. Aggrieved by the said judgment, the present revision is filed by the defendant. 5. The points that arise for consideration are: 1) whether the suit Promissory Note was executed by the defendant in favour of PW.4? 2) Whether the Promissory Note is supported by any consideration? 3) Whether the plaintiff is entitled for the suit amount? 4) Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? 6. The suit is based on a Promissory Note, the execution of which was denied by the petitioner/defendant. The burden is on the respondent/plaintiff to prove the execution and if such execution is proved, the presumption of passing of the consideration can be raised, which is rebuttable. PW.4 is the original holder of the Promissory Note and he claims to have paid cash to the defendant and obtained Promissory Note, Ex.A1 and it was transferred for consideration in favour of the plaintiff, PW.1, under Ex.A2. The scribe of the Promissory Note is said to be no other than the brother of the defendant. 7. The learned counsel for the petitioner contends that there is variation about the place of execution of the Promissory Note and also the manner in which the consideration was passed. He also found fault with the observations of the learned Senior Civil Judge that it is the defendant, who has to disprove the execution of the Promissory Note, and did not take any steps and consequently, contends that the judgment and decree passed by the learned Senior Civil Judge is not sustainable. 8. As can be seen from the claim of the defendant, it is quite clear that the defendant has purchased land from the plaintiff on 01.08.1995, which is also the date of suit Promissory Note. Thereafter, there seems to be a rectification deed obtained by the defendant from the plaintiff, as there was difference in the survey number. According to the case of the defendant, they demanded a rectification deed from the vendor of the plaintiff and to obtain such a document the plaintiff demanded Rs.30,000/- and as such, the plaintiff has developed grudge against the defendant and fabricated the document. The facts clearly disclose that there were transactions between the plaintiff and the defendant and that the defendant is not a stranger to the plaintiff. The lower Court took into consideration the evidence of PW.5, who is one of the attesters on the Promissory Note, which shows that the defendant himself was the scribe of the Promissory Note and it was executed at his house. Evidently, such type of contradiction from a witness, who is giving evidence after long time, is not so material. With regard to the place of execution of the Promissory Note or about the particulars of the scribe, he was not confronted with the document to say as to who was the scribe of the Promissory Note. The native place of the parties is not disputed. Therefore, from the evidence of PWs.4 and 5, the execution of the Promissory Note is proved without any doubt and there is absolutely no need or motive for fabrication of the document by the plaintiff or PW.4, when evidently there were transactions between both of them. 9. Evidently, when the execution of the Promissory Note is admitted or proved, the presumption under Section 118 of the Negotiable Instruments Act, 1881, rise and the burden shifts to the defendant to disprove the same. The law is now well settled that the consideration mentioned in the Promissory Note need not be the same consideration and if the document is supported by any other valid consideration, the claim can be enforced. The learned counsel for the petitioner strongly relied upon the evidence of PW.1 while giving evidence in O.S.No.185 of 1998, which was marked as Ex.B1, whereunder it was stated that the property was sold for Rs.60,000/- and the defendant shall pay Rs.35,000/- to her and Rs.30,000/- to PW.4 towards sale consideration of the said land and the defendant paid Rs.23,000/- to PW.4 in the presence of elders and for the balance, the Promissory Note for Rs.6,900/- was executed. The evidence of PW.4, on this aspect, is also sought to be relied upon by the learned counsel for the petitioner. Even assuming that there is any inconsistency about the nature of payment of consideration under the Promissory Note, Ex.A1, in view of the admitted fact that the defendant had purchased the land from the plaintiff for a sum of Rs.60,000/-, the theory pleaded by the plaintiff in the earlier suit cannot be said to be a falsehood to destroy the suit Promissory Note and to deny the relief to the plaintiff. It clearly goes to show and probablize that towards the consideration payable under the sale deed, the Promissory Note was executed by the defendant in favour of PW.4 and consequently, that may be the reason as to why the transfer was affected in favour of the plaintiff. Even if the transfer is not for consideration, it can be a transfer simplicitor entitling the plaintiff to file the suit for recovery of the money. The evidence adduced by the defendant does not improbabilize the claim of the plaintiff and the learned Senior Civil Judge has given sufficient reason to hold that the defendant executed the said Promissory Note and it is supported by valid consideration. I do not find any reason to interfere with the judgment and decree of the lower Court. 10. Accordingly, the Civil Revision Petition is dismissed with costs. ____________________________ N.R.L.NAGESWARA RAO, J December 31, 2010 MD THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION No.1214 OF 2007 December 31, 2010