THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.515 OF 2011 29.12.2011 Between: Bayana Venkata Rao …Appellant AND Mudadla Simhachalam …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.515 OF 2011 JUDGMENT: The unsuccessful defendant in the Courts below is the appellant. The plaintiff’s suit being O.S.No.879 of 2004 on the file of the Court of the IV Additional Senior Civil Judge (Fast Track Court), Visakhapatnam was decreed on 18.06.2007. The defendant’s appeal being A.S.No.225 of 2007 on the file of the Court of the Principal District Judge, Visakhapatnam was dismissed on 07.08.2009. Aggrieved by which, the present second appeal is filed. By referring to the parties as per their status in the suit, the brief background of the case may be noticed. The plaintiff set up the case alleging that the defendant borrowed an amount of Rs.1,00,000/- on 30.07.2001 agreeing to repay the same with interest at 24%. The plaintiff issued a cheque and the same was encashed by the defendant, and in spite of the demands, amount was not paid. The defendant opposed the suit. He set up a case alleging that the plaintiff borrowed an amount of Rs.1,00,000/- from the defendant and the cheque was given in consideration of the debt. He also alleged that it is the plaintiff who borrowed money for discharging the sundry debts. He denied all other allegations. The trial Court framed the lone issue. During the trial, plaintiff examined as P.W.1 and marked four documents. The defendant did not adduce any documentary evidence but examined himself as D.W.1 and one Appalanaidu as D.W.2. D.W.2 deposed that plaintiff borrowed an amount of Rs.1,00,000/- from the defendant for the purpose of discharging sundry debts, and that he attested the pronote. In the cross-examination, however, he admitted that the defendant did not obtain any pronote for the amount lent by him. On considering evidence, the trial Court decreed the suit accepting the case of the plaintiff. The appellate Court again on reconsideration confirmed the trial Court. The counsel for the appellant/defendant would submit that the Courts below failed to give importance to the evidence of independent witness, D.W.2. According to him, when there was no rebuttable evidence, the version of D.W.2 ought to have been accepted. The plea raised in the second appeal cannot be accepted. The Courts below considered the contentious fact in issue and came to the conclusion that the case set up by the defendant is improbable and that he failed to discharge the debt. Even otherwise, as found by the appellate Court, D.W.2 in the cross-examination stated that D.W.1 did not obtain any promissory note. In which case, to the effect that he attested the promissory note is certainly not true. The second appeal is misconceived and is accordingly dismissed. No costs. _______________ (V.V.S.RAO, J) 29.12.2011 Pln