IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FIFTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE K. C. BHANU SECOND APPEAL No :1041 of 2009 Between: Nalla Suresh. .. APPELLANT. AND Janga Madhu. .....RESPONDENT. JUDGMENT: This second appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 03.06.2009 in A.S.No.113 of 2007, on the file of the District Judge, Karimnagar, whereunder and whereby, the judgment and decree dated 30.10.2007 in O.S.No.567 of 2005 on the file of the Principal Junior Civil Judge, Karimnagar, was confirmed. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows; The appellant/defendant borrowed an amount of Rs.50,000/- from the respondent/plaintiff on 26.02.2004 agreeing to repay the same with interest at 18% per annum. On several demands made by the plaintiff, the defendant did not repay the amount. The plaintiff got issued legal notice on 05.04.2005 and also on 28.06.2005. As the defendant failed to repay the amount, the plaintiff filed the suit. The defendant filed written statement stating that he never borrowed an amount of Rs.50,000/- from the plaintiff on 26.02.2004 and never executed the promissory note. He denied rest of the plaint allegations and prays to dismiss the suit. 3. Basing on the above pleadings, the trial Court settled the following issues for trial: 1. Whether the plaintiff is entitled for recovery of money? 2. To what relief? 4. To substantiate the case of the plaintiff, P.Ws.1 to 3 were examined and Exs.A1 to A7 were marked. On behalf of the defendant, DW1 was examined, but no document was marked. 5. The trial Court, after considering the evidence on record, came to the conclusion that the suit promissory note was executed by the defendant by receiving an amount of Rs.50,000/- from the plaintiff and accordingly, decreed the suit. On appeal, the said judgment and decree was confirmed. Hence, the present appeal. 6. The substantial questions of law raised in the memorandum of grounds of appeal are as under; 1. Whether the appellate Court is right in confirming the judgment and decree passed by the Principal Junior Civil Judge, Karimnagar when there is clear material alteration in Ex.A1? 2. Whether the appellate Court is right in confirming the judgment and decree passed by the Principal Junior Civil Judge, Karimnagar when P.W.3-scribe contended that the left portion of Ex.A1 was already filled by somebody? 3. Whether the appellate Court is right in confirming the judgment and decree passed by the Principal Junior Civil Judge, Karimnagar when the initial burden is not discharged by the plaintiff with regard to the execution of pronote by the defendant? 7. Learned counsel for the appellant contended that there is a material alteration in the promissory note and the same was admitted by the scribe of the promissory note, who was examined as P.W.3, that the initial burden stands on the plaintiff has not been discharged and hence, he prays to allow the appeal. 8. There cannot be any dispute that under Section 100 CPC, the second appeal cannot be admitted automatically. It must be shown that substantial question of law is involved in the appeal. If the trial Court has given a perverse finding and the findings are not based upon any evidence, then it can be said that there is a substantial question of law involved. In a suit for recovery of the amount basing on a promissory note, the initial burden is on the plaintiff to establish that the defendant borrowed the amount and executed the promissory note. Thereafter, the presumption under Section 118 of the Negotiable Instruments Act, 1881 can be drawn. If it is drawn, the presumption is, negotiable instrument is supported by consideration. 9. The evidence of P.W.1 goes to show that he lent an amount of Rs.50,000/- to the defendant on 26.02.2004 and the defendant executed Ex.A1-promissory note agreeing to repay the same with interest at 18% per annum. He got issued a legal notice-Ex.A2 on 05.04.2004. Again, he got issued another legal notice-Ex.A5 on 28.06.2005, for which, Ex.A7-reply was given by the defendant. P.W.2 is one of the attestors of Ex.A1. He categorically stated that the defendant executed the promissory note on 26.02.2004 and the plaintiff has given an amount of Rs.50,000/- to the defendant. Thereupon, the defendant signed on the promissory note along with the receipt. P.W.3 is the scribe of Ex.A1. He admitted that he corrected the year 2005 as 2004. Therefore, from the evidence of P.Ws.1 to 3, it is clear that the defendant executed Ex.A1-promissory note along with the receipt. With regard to the material alterations, there was no plea taken by the defendant that the plaintiff materially altered the contents of the promissory note. Therefore, that plea cannot be raised in the absence of any pleading. The admission of P.W.3, who is the scribe of Ex.A1, that the left portion of Ex.A1 was already filled by somebody does not in any manner affect the due execution of Ex.A1. Except denying the execution, the defendant has not adduced any evidence to show that Ex.A1 was not supported by any consideration. Therefore, the points now raised in this appeal are not the substantial questions of law and that the findings of both the Courts below are based upon proper appreciation of evidence. None of the findings is shown to be perverse and therefore, there are no grounds to interfere with the concurrent findings of both the Courts below. 10. Hence, the Second Appeal is devoid of merit and is accordingly dismissed, at the stage of admission. No costs. _____________ K. C. BHANU, J Date:25.11.2009. sj