HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.2104 OF 1999 JUDGMENT: The appeal is filed by appellant/defendant against the judgment in O.S.No.520 of 1994 on the file of the I Additional Civil Judge, Visakhapatnam. 2. The suit was one filed for recovery of a sum of Rs.1,54,380/- being the principal and interest due on a promissory note dated 24.10. 1991 for Rs.90,000/- said to have been executed by the defendant in favour of the plaintiff. The defendant did not repay the amount in spite of repeated demands. Hence the suit. The defendant filed a written statement contending that she never borrowed an amount of Rs.90,000/- from the plaintiff; the suit promissory note is a fabricated one; there is no necessity for the defendant to borrow; the plaintiff has no capacity to the money and therefore, the suit is liable to be dismissed. 3. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the suit pronote is true, valid and supported by consideration? 2) To what relief? 4. On behalf of the Plaintiff, PWs.1 and 2 were examined and marked Ex.A.1. On behalf of the defendant, DW.1 was examined and no documents were marked. After considering the evidence on record, the learned I Additional Senior Civil Judge, Visakhapatnam, decreed the suit of the plaintiff. Aggrieved by the said judgment, the present appeal is filed. 5. The points that arise for consideration are: 1) Whether the suit promissory note is true? 2) Whether the defendant is not liable to pay the suit amount? 6. POINTS: Since the execution of the promissory note has been denied, the burden is evidently on the plaintiff to prove the execution of the promissory note. In support of the execution of the promissory note, the plaintiff herself was examined as PW.1. According to her, the defendant borrowed an amount of Rs.90,000/- and executed a promissory note which is Ex.A.1. During the cross-examination, she stated that the defendant and her son-in-law Raghu are known to her and the defendant is known to her only through the son-in-law of the defendant. The defendant has asked for loan about two or three days before the transaction and she claims to have sold the gold and that amount was paid. She does not have any receipts with regard to sale of the gold. She also stated that at the time of execution of the promissory note apart from the scribe, son-in-law of the defendant, who is the attestor, was also present and the transaction has taken place between 2.00 P.M., and 3 P.M. 7. PW.2 is scribe of the promissory note and he also spoke about the borrowing of Rs.90,000/- and executing the promissory note by the defendant. Son-in-law of the defendant is said to be an attestor. During the cross-examination, he stated that he did not receive any summons from the Court to give evidence. The transaction has taken place between 1.00 P.M., and 2.00 P.M. There was only a suggestion to him that no transaction under Ex.A.1 has taken place and that the promissory note is a fabricated one. As against this suggestion, the only evidence on behalf of the defendant is herself and she said that she has no necessity to borrow. She claims that the plaintiff also filed another suit for recovery of money basing on a promissory note and there was no demand from her. She admits that her son-in-law Raghu did business in sale of tape recorders. During the cross-examination, she stated that he obtained her signatures on two or three blank white papers and she does not know for what purpose those signatures were taken. She was confronted with the signatures on the Vakalat and the summons, but she could not identify her signatures. 8. The learned counsel for the appellant strongly contends that the suit promissory note was fabricated with the connivance of the son-in- law of the defendant and the lower Court has not properly appreciated the evidence and on the other hand, it has unnecessarily taken the responsibility of comparing the signatures, which is not warranted. Evidently, it is for the plaintiff to prove the execution of the promissory note and passing of the consideration. Though the defendant has taken a plea that the plaintiff has no capacity to lend the money, she was not at all confronted with her capacity when she was in box. PW.2 is the scribe, who was examined by the plaintiff and in his cross- examiantion also there is no material to show his necessity for fabrication of a document against the defendant. His character and credibility are not at all disputed. Though an argument has been developed that there are differences between her and her son-in-law, the defendant has not taken this plea in the written statement. Even in the chief examination, the defendant has not stated that she has got any differences with her son-in-law. The material on record, as rightly found by the lower Court, clearly goes to show when the attachment of the properties was effected her son-in-law was living with her. If really the relationship between the defendant and her son-in-law is strained, he would not have been present there. In fact, there is no reason as to why differences have arisen between the defendant and her son-in- law. The contention of the learned counsel for the appellant that the plaintiff has not examined other attestors is also of no strength. The motive for fabrication is not established. The grounds of the appeal reflects as if the son-in-law of the appellant is responsible for this fabrication. Any amount of plea in his evidence on this aspect cannot be entertained for the simple reason that there was no plea or even a whisper in the chief examination of the defendant. The evidence of PWs.1 and 2, therefore, establishes the execution of the promissory note and passing of the consideration. None of the contentions raised by the defendant are valid and there are no grounds to interfere with the judgment of the lower Court. Points are answered accordingly. In the result, the appeal is dismissed with costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:20.10.2011 INL