THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.176 OF 2011 19.07.2011 Between: N.Venkateswara Rao … Appellant AND Pulla Veera Venkata Satyanarayana …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.176 OF 2011 JUDGMENT: This is defendant’s second appeal against confirming Judgment of the Court of the IV Additional District Judge, Kakinada in A.S.No.157 of 2007 dated 09.09.2010, whereby and whereunder the Judgment and decree in the suit of the respondent (plaintiff) being O.S.No.488 of 2004 on the file of the Court of the I Additional Senior Civil Judge, Kakinada was confirmed. The plaintiff instituted suit based on promissory note Ex.A.1, dated 19.09.2001 alleging that the defendant borrowed Rs.1,14,580/- from the plaintiff for the purpose of business agreeing to repay the amount with interest at 24% per annum either to the plaintiff or to his order on demand. In spite of demand, the amount was not paid compelling filing of the suit. The defendant filed the written statement denying the plaint averments. He denied the borrowing of amount from the plaintiff. He further set up the case which, in a nutshell, is that the plaintiff along with other ryots supply mango jelly to M/s.M.S.& Co., represented by Mohammad Bhai. The defendant was transacting this business on behalf of Mohammad Bhai. The mango jelly was supplied on credit basis and when the purchaser failed to pay the amount, the plaintiff put pressure on the defendant for payment. In that connection, the plaintiff obtained signature of the defendant on Ex.A.1. He futher alleged that the promissory note was materially altered, in that the figure ‘1’ in front of the figure Rs.14,580/- was interpolated by addition, and therefore, it is void and unenforceable. The trial Court framed issues. Issue No.4 pertains to the question whether Ex.A.1 is materially altered. On considering oral and documentary evidence (P.W.1 to P.W.3 and D.W.1 to D.W.3, Exs.A.1 and Exs.B.1 to B.4), the trial Court came to the conclusion that the plea of material alteration of Ex.A.1 is not proved. For coming to this conclusion, the trial Court relied on the evidence of D.W.2, which remained unimpeached. The decree was accordingly passed. The appellate Court again considered the evidence on record and rejected the plea while confirming the Judgment of the trial Court. The counsel for appellant/defendant submits that Ex.A.1 on the face of it appears to be altered, and in view of Section 87 of Negotiable Instruments Act, 1881, the plaintiff cannot seek any relief based on the promissory note. The question whether a promissory note is rendered void by reason of any material alteration is certainly a question of fact. Considering the evidence of D.W.2 on this aspect, the trial Court observed that the colour of the ink in the entire body of Ex.A.1 is the same, that no scribe would keep the space in the left side portion as blank and that if the original promissory note was prepared for Rs.14,580/- the amount in words would start from left side margin, and therefore, the allegation is far from the truth. The appellate Court relied on the evidence of P.W.1 to P.W.3 and recorded a finding that their evidence is consistent that the defendant borrowed Rs.1,14,580/- and that too inconsistent versions taken by D.W.1 would not support the plea of material alteration and that the scribe who deposed on behalf of defendant himself did not support the defendant. As found by the trial Court as well as the appellate Court, there was no material alteration in Ex.A.1, promissory note, and in fact, it was executed for Rs.1,14,580/-. This is a finding of fact and second appeal is misconceived. The second appeal is accordingly dismissed. _______________ (V.V.S.RAO, J) 19.07.2011 Pln