THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY APPEAL SUIT No.1254 OF 1994 DATED:30-09-2010 ORDER: This appeal is directed against the judgment and decree, dated 28-03-1994, in O.S.No.244 of 1988 on the file of the learned II Additional Subordinate Judge, Visakhapatnam, wherein the said suit filed by the appellant herein for recovery of a sum of Rs.1,32,388/-, being the principal and interest due on a promissory note, dated 21-04-1985, was dismissed. 2. Heard learned counsel for the appellant and learned counsel for the respondents. Perused the record. 3. Appellant herein filed the suit against the respondents contending that the father of the 1st defendant, by name Bora Narasimhulu, borrowed a sum of Rs.77,000/- from the plaintiff on 24-01-1985 and executed a promissory note, promising to repay the same with interest @ 24% p.a., and that the said Narasimhulu failed to repay the debt amount and died in October, 1985 and subsequently defendants 1 and 2 also did not discharge the debt in spite of plaintiff’s legal notice, dated 25-03-1988. 4. Defendants filed a written statement contending that plaintiff is the brother’s son of Bora Narasimhulu, and that the 1st defendant was not worldly-wise and the plaintiff was helping the said Narasimhulu in the litigation regarding a cinema theatre and the said Narasimhulu reposed confidence in the plaintiff and entrusted all his gold for safe custody. When the said Narasimhulu asked the plaintiff to return the gold ornaments, plaintiff denied the entrustment; bore grudge against Narasimhulu; forged the suit promissory note and filed the suit. Defendants further contended that the said Narasimhulu never borrowed any amount from the plaintiff and never executed the suit promissory note and the signatures on the suit promissory note are not genuine. 5. On the strength of the pleadings, the trial Court framed the following issues: 1. Whether the suit promissory note is true, valid and binding on the defendants? 2. Whether the plaintiff is entitled to recover the suit amount from the defendants? 3. To what relief? The following additional issue was framed on 21-07-1993: Whether the suit promissory note is materially altered ? 6. During the course of trial, P.Ws.1 and 2 were examined and Exs.A1 to A4 were marked. D.Ws.1 to 4 were examined, however no documents were marked on behalf of the defendants. 7. On a consideration of the evidence available on record, the trial Court held on additional issue No.1 that the suit promissory note is materially altered and on issue No.1, it was held that the plaintiff failed to prove the genuineness of the signature on Ex.A1 as that of the said Narasimhulu. It was held that the suit promissory note is not valid and binding. Accordingly, the suit was dismissed. Aggrieved by the same, the present Appeal Suit is filed. 8. The case of the appellant-plaintiff is that Narasimhulu, who is the father of the 1st defendant, borrowed Rs.77,000/- from the plaintiff and executed the suit promissory note-Ex.A1 and subsequently, Narasimhulu died without discharging the debt and in spite of issuing notice under original of Ex.A2, which was received by the defendants under Ex.A3, defendants also did not discharge the debt. Ex.A4 is the notice issued to the 2nd defendant, which was returned unserved. Defendants categorically denied the borrowal of Rs.77,000/- and execution of the suit promissory note by Narasimhulu from the plaintiff. 9. A perusal of Ex.A1 would go to show that the date of the promissory note is altered by making it appear that it was executed on 21-04-1985. The said alteration in the date is very much apparent from Ex.A1 itself. The said alteration is not attested by the scribe. According to the plaintiff, the said alteration was made at the time of writing the document itself, but the scribe is not examined to show that the said alteration was made at the time of execution of the document itself and it is to the knowledge and consent of the executant. In the absence of the evidence of the scribe and in the absence of valid explanation for the alteration made in the date, which is certainly a material alteration, the trial Court, following the decisions of this court in ALLAMPATI SUBBA REDDY @ SUBBARAMI REDDI v. NEELAPAREDDI RAMANAREDDI [1] and JAYANTILAL GOEL v. ZUBEDA KHANUM [2], rightly held that Ex.A1 suffers from material alteration due to alteration of the date from ‘1’ to ‘21’. Therefore, the same is vitiated and rendered void in view of Section 87 of the Negotiable Instruments Act, which provides that any material alteration of the negotiable instrument renders the same void, unless it was made in order to carry out the common intention of the original parties. 10. Defendants denied the signature of Narasimhulu on Ex.A1. Apart from testifying himself as D.W.1, D1 examined D.Ws.2 to 4, who are co-villagers and acquaintees of the said Narasimhulu and they testified that Ex.A1 does not bear the signature of Narasimhulu. The testimony of D.Ws.2 to 4, who are independent witnesses, is not discredited in any manner. Plaintiff has not made any attempt to get the promissory note-Ex.A1 examined by a hand-writing expert so as to give an opinion regarding the genuineness of the signature of the executant-Narasimhulu and also has not adduced any other evidence to show that Narasimhulu borrowed Rs.77,000/- and executed Ex.A1. Plaintiff has not issued any notice to show that the executant-Narasimhulu during his life time was demanding the repayment of the debt. Plaintiff also has not produced any accounts to show that the transaction contained in Ex.A1 is culmination of the statement of accounts between the plaintiff and Narasimhulu. According to the plaintiff, Narasimhulu was in the habit of borrowing money from him and he, in fact, borrowed on several occasions prior to Ex.A1, but the plaintiff has not produced any evidence showing any such earlier transactions and borrowal by Narasimhulu. 11. Having regard to the entire evidence on record, the trial Court rightly held that the plaintiff failed to discharge the burden of establishing the truth of the transaction of borrowal and the genuineness of Ex.A1. Added to that, on account of the material alteration, which is quite apparent from the document itself, the suit promissory note-Ex.A1 is vitiated and is therefore unenforceable. The findings of the trial Court would not therefore call for any interference. There are no merits in the appeal. 12. In the result, Appeal Suit is dismissed. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 30th September, 2010. Tsy [1] 1996 (1) An.W.R. p.141 [2] AIR 1986 A.P. P.120