IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 89 OF 2007 MR. EDWARD PEREIRA, MERCES-GOA. ... Appellant Versus MR. SAVIO FERNANDES, BARDEZ-GOA ... Respondent Ms. Rakhi Chodankar, Advocate for the Appellant. Mr. J. P. Mulgaonkar, Advocate for the Respondent. Coram:- N. A. BRITTO, J. Date:- 16th July, 2008 P.C.: Heard learned Counsel on behalf of parties. This is defendant's second appeal arising from RCS No. 15/2001. 2. The plaintiff had filed the suit against the defendant for a recovery of a sum of Rs. 1 lac with interest at the rate of 18% per year, against a promissory note executed by the defendant for the said sum. The sum lent was actually Rs. 90,000/- as admitted by the plaintiff. 3. The plaintiff had also admitted, in the course of his cross-examination, that the defendant had paid another sum of Rs. 25,000/- and on the basis of the said admission that the suit came to be decreed in the sum of Rs. 65,000/-. There was a dispute between the parties as regards the payment of Rs. 30,000/- by cheque dated 22/07/1998. There is no dispute that it was a bearer cheque and according to the plaintiff, the plaintiff had not received the sum due on the said cheque. The defendant examined the Bank Manager namely Lokamania D'Souza/DW2 who was unable to confirm that the amount of the said cheque was paid to the plaintiff. The learned trial Court observed that the said cheuqe on the reverse had two signatures and that there was no evidence to show which of the said two persons who signed on the reverse of the said cheque had encashed it. Besides, Lokamania D'Souza/DW2 had admitted that the said cheque was a bearer cheque and it could be encashed by any one. The learned first appellate Court also came to the conclusion that the banker was unable to confirm the amount of the said cheque was paid to the plaintiff. 4. Counsel on behalf of the defendant submits that admittedly there were two signatures on the reverse of the said cheque and the Court in terms of Section 73 of the Evidence Act could have compared one of the said two signatures with the admitted handwriting of the plaintiff available in the case. The learned first appellate Court has assigned reasons for declining to adopt such a course. The learned first appellate Court has observed that the signature of the plaintiff was not identified by the defendant on the said disputed cheque and, moreover, the defendant had stated that he did not know whether the said cheque dated 27/09/2000 was encashed by the plaintiff. In case it was encashed by the plaintiff then certainly the defendant ought to have made such positive statement. Learned trial Court also observed that the plaintiff had denied that he had received the amount of the said disputed cheque. Here it may be noted that the onus was entirely upon the defendant to prove that the said amount of Rs. 30,000/- was paid by the defendant to the plaintiff. The learned first appellate Court proceeded to hold that it was difficult that the amount of the disputed cheque was received by the plaintiff and it also noted that the defendant had admitted that the person who had received the cash had to sign the cheque on the reverse and since the signature of the defendant also appeared on the reverse of the said disputed cheuque and the other signature was not identified, it was possible that the defendant had received the said amount. The learned first appellate Court also noted that the comparing of the said signatures by the Court could have been done if the signature was identified either by the defendant or by the same person who knows the signature of the plaintiff and the defendant had not even made a statement that the signature was of the plaintiff and therefore the question of comparing the signature did not arise. The defendant certainly could not have expected the Court to do a thing which he himself could have done and having failed to do so, that is to identify one of the signatures on the reverse of the said cheque as that of the plaintiff, could not expect the Court to have done the said exercise. 5. Learned Counsel on behalf of the defendant submits that the interest awarded ought to be 6% and not 10%. This point does not appear to have been raised before the first appellate Court. Moreover, as per the promissory note, the defendant had agreed to pay interest at the rate of 18% and both the Courts below have ordered it at 10%. Hence, no interference on that count as well. 6. Considering the facts and circumstances of the case, in my view, there is no substantial question of law involved in this second appeal. Consequently, second appeal is hereby dismissed with costs by the defendant to be paid to the plaintiff throughout. The amount deposited before this Court with accrued interest, if any, shall be paid to the plaintiff (respondent herein). N. A. BRITTO, J. NH