THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL NO.363 OF 2010 DATED: 29-01- 2011. Between C.H.Kanaka Raju … Appellant-Defendant And K.C.Pullaiah …Respondent-Plaintiff THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL NO.363 OF 2010 JUDGMENT: This appeal is directed against the judgment and decree, dated 19-03-2004, in A.S.No.71 of 2002 on the file of the III Additional District Judge (FTC), Anantapur, in setting aside the judgment and decree, dated 18-04-2002, in O.S.No.238 of 2000, on the file of the Principal Junior Civil Judge, Anantapur, wherein the suit filed for recovery of money, was dismissed. 2. Appellant herein is the defendant and the respondent herein is the plaintiff in the suit. 3. The averments of the plaint in brief are as follows: On 25-02-1996, the defendant borrowed an amount of Rs.15,000/- from the plaintiff and executed promissory note in his favour agreeing to repay the same with interest at 24 % per annum. On repeated demands made by the plaintiff, the defendant did not pay the amount. Therefore, the plaintiff got issued legal notice, dated 13-05-1998 to the defendant. As the defendant is an employee, the plaintiff claimed interest at 24% per annum. Hence, the suit. 4. The defendant filed written statement denying the averments of the plaint regarding execution of pronote and also borrowal. It is stated that the pronote is a forged, fabricated and got up document. The plaintiff has no capacity to lend the money to others. The suit pronote is materially altered and that it is not admissible in evidence. The plaintiff has no cause of action to file the suit and hence, he prays to dismiss the suit. 5. Basing on the above pleadings, the following issues were settled by the trial Court: 1. Whether the plaintiff is entitled to the suit amount as prayed for? 2. To what relief? 6. On behalf of the plaintiff, P.W.1 was examined and got marked Exs.A1 to A3. On behalf of the defendant, D.W.1 was examined and no documents were marked. 7. The trial Court after consideration of oral and documentary evidence on record, dismissed the suit on the ground that the attestor and scribe of the document are not examined. On appeal, the first appellate Court reversed the judgment of the trial Court on the ground that execution was proved by the plaintiff and the burden shifts to the defendant that the suit promissory note was not supported by consideration and accordingly decreed the suit. Aggrieved thereby, the defendant filed this appeal. 8. Learned counsel appearing for the appellant-defendant contended that the judgment of the 1st appellate Court is vitiated for non compliance of Order XLI Rule 31 CPC and also under Section 114 (g) of Indian Evidence Act, 1872 (for short ‘the Act’) for non examination of scribe and attestor, that therefore, the findings of the 1st appellate Court are perverse and hence, he prays to set aside the impugned judgment. 9. Now the point for determination is whether the judgment of the 1st appellate Court is correct, legal and proper? 10. The evidence of P.W.1 coupled with the recitals of Ex.A1 would go to show that the defendant borrowed a sum of Rs.15,000/- from the plaintiff and executed promissory note in his favour agreeing to repay the same with interest at 24 % per annum. On repeated demands made by the plaintiff, the defendant did not pay the amount. Therefore, plaintiff got issued legal notice, dated 13-05-1998 to the defendant calling upon him to repay the amount covered by the pronote. As the defendant did not discharge the debt, he filed the suit for recovery of suit amount. Ex.A1-suit promissory note is not denied or disputed by the defendant. Once execution of the document is not denied or disputed, the presumption is that it was supported by consideration under Section 118 of the Negotiable Instruments Act, 1881. When the document is not in dispute, question of examination of attestor or scribe of the document does not arise. Consequently Section 114 (g) of the Act does not apply in such a case. When there is a dispute about execution of the document, then only the material witnesses have to be examined. In view of the fact that the evidence of P.W.1 is very clear that it is the defendant to executed the promissory note and received consideration, the initial burden stands on the plaintiff discharged and the burden shifts to the defendant that the suit pronote was not executed by him and not supported by consideration. Therefore, the 1st appellate Court rightly taken note of the above facts and decreed the suit. In view of the fact that there is no substantial question of law involved in this second appeal, the appeal is devoid of merit and is liable to be dismissed. 11. Accordingly, the Second Appeal is dismissed at the stage of admission. No order as to costs. ________________ K.C. BHANU, J DATED: 29-01-2011 Hsd