HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.812 OF 2001 JUDGMENT: The defendant in O.S.No.72 of 1994 on the file of the Senior Civil Judge, Amalapuram, is the appellant herein. 2. The suit was one filed for recovery of Rs.1,29,100/- being the principal and interest due on a promissory note dated 16.07.1992 executed by the defendant after receiving a consideration of Rs.1,00,000/-. The defendant has denied the execution of the promissory note and also the passing of the consideration. 3. According to the defendant, the plaintiff is not known to him. The plaintiff is a close relation of one Gundabathula Mallaparaju. There is no necessity to the defendant to borrow nor the capacity to the plaintiff to lend the said amount. There are disputes between the defendant and Mallaparaju with regard to the lands of a Temple and there was a litigation as Mallaparaju did not increase the rent of the lands of the Temple, for which, the defendant is the Chairman. The said Mallaparaju has come into custody of some blank stamped papers and also two blank papers containing his signatures and other papers with revenue stamps, which might have been used in fabricating the suit document. The above documents were executed in the following circumstances: 4. The defendant happened to borrow a sum of Rs.8,000/- from the Gundabathula Adinarayana, a permanent resident of Pulletikurru village but shifted to Amalapuram due to his business and agricultural activities on 12.08.1977. At the time of granting loan, the said G.Adinarayana insisted that he should sign on a blank stamped paper and also on some other papers. As he was in necessity of finance and as the said G.Adinarayana, who is a close friend of the family, and was maintaining such formalities for going a loan and out of confidence on the said G.Adinarayana, he signed on a stamped paper purchased in the name of Veera Madhava Rao, who is no other than the brother of G.Adinarayana’s son-in-law. He also signed on two blank papers and two papers containing 25 paise revenue stamps. He also kept the partition deed between himself and his brother with the said G.Adinarayana along with the said papers. Subsequently, he discharged the said debt due to G.Adinarayana but the papers were not returned by him saying that he will get the papers and hand over to him as they were not kept in his house for some compelling reasons. Due to confidence on the said G.Adinarayana, he never felt the dire necessity of somehow or other getting the said papers immediately on discharge of the debt. So they continued to be in the custody of G.Adinarayana. While the matter stood thus, he became the Chairman of the Temple situated at Pulletikurru village and initiated action against G.Mallaparaju, who is brother of G.Adinarayana, for vacation of the premises. The litigation went up to High Court. During that time, G.Adinarayana also tried to impress on him to somehow save his brother. He was reluctant to concede the request of G.Adinarayana. The said G.Adinarayana felt a little for not conceding his request. Ultimately on the enhancement of rent the matter was closed. As the said Mallaparaju was made to enhance the rent, bore grudge against the defendant waiting for time to wreak vengeance. During the course of negotiations somehow Mallaparaju convinced G.Adinarayana so as to put him in the feat of action by making use of the papers stated, which were in the custody of G.Adinarayana and took the papers from G.Adinarayana by G.Mallaparaju. So he came into custody of those papers under that guise convincing Adinarayana that he is not going to make use of these four papers foully. But, after the settlement of the dispute with regard to the Deity’s site the said G.Mallaparaju threatened him 2 or 3 times stating that he will make him move around Courts. In implementing that plan the said G.Mallaparaju filed a suit in O.S.No.74 of 1994 on the file of Senior Civil Judge, Amalapuram, on the basis of a fabricated agreement of sale alleged to have been executed by him on 12.08.1983 for a sum of Rs.1,50,000/- and further alleged that he received Rs.1,00,000/- as advance and he is liable to execute a sale deed in respect of property worth of more than Rs.5,00,000/- or Rs.6,00,000/- in the year, 1983 and about Rs.16,00,000/- at the time of the suit. In further expanding the plan of putting him in troubles, the said G.Mallaparaju has chosen the plaintiff, who is his brother, in this suit so as to file the suit on the foot of a fabricated promissory note alleged to have been executed by him in favour of the plaintiff. Therefore, the suit is liable to be dismissed. 5. On the basis of the above pleadings, the following necessary issues have been framed by the trial Courts, for trial: 1) Whether the suit promissory note dated 16.07.1992 is true, if so, it was not supported by consideration? 2) Whether the motive attributed by the defendant is true? 3) Whether the defendant has no need to borrow? 4) Whether the plaintiff has no capacity to lend? 5) To what relief the plaintiff is entitled? 6. On behalf of the plaintiff, PWs.1 to 4 were examined and marked Exs.A.1 and A.2. On behalf of the defendant, DW.1 was examined and marked Ex.B.1. 7. After considering the evidence on record, the learned Senior Civil Judge, Amalapuram, decreed the suit of the plaintiff. Aggrieved by the said judgment and decree the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the suit promissory note is true and supported by consideration? 2) Whether the defendant is not liable to pay the suit amount? 9. POINTS: The plea of the appellant/defendant or his evidence does not seriously dispute the signature on Ex.A.1 promissory note. The suit promissory note is dated 16.07.1992. According to the case of the defendant in the year, 1977 he has borrowed a sum of Rs.8,000/- from G.Adinarayana and at that time he executed some blank papers and stamp papers. The said debt is said to have been discharged by 1982. According to the defendant, the documents were not returned and therefore, he contends that the stamps on which his signatures were taken in 1977 are used for fabricating the document in the year, 1992 by the plaintiff and Mallaparaju. If really the theory of the defendant is true, nothing prevented him to send the stamps on Ex.A.1 for examination by the Security Press as to in which year those stamps were released. 10. Apart from it, from the evidence of the defendant, it is quite clear that when he has borrowed money of Rs.8,000/- from Adinarayana he not even executed a promissory note. If Adinarayana did not take a promissory note for the amount actually lent, it is difficult to believe that the defendant would have been asked to sign on blank stamped papers and blank promissory note. Even otherwise the litigation between the defendant and Mallaparaju has ended in compromise, but the evidence and the written statement are conspicuously silent as to when that litigation started and when that litigation has ended. If the litigation with regard to the cultivation of the land between the defendant and Mallaparaju has ended in compromise, one fails to understand as to why the suit promissory note should be fabricated. Therefore, from the reasonable approach of the plea of the defendant, it appears to be highly improbable to be accepted. 11. Added to that, the persons, who are associated with the promissory note were examined and PWs.2 and 3, who are the attesters on the promissory note. Their evidence clearly goes to show that consideration was paid in their presence and the transaction has taken place though the promissory note is not said to have been signed or scribed in their presence. The fact remains that their evidence clinchingly establishes that consideration of Rs.1,00,000/- was paid to the defendant by the plaintiff. It is to be noted that when the evidence is to be read, it should be read as a whole, but not the part, which is favourable to the party. If really PWs.2 and 3 are interested in speaking falsehood and parties to the fabricated document, they could have as well stated about the scribing of the promissory note attestation etc., in their presence. Therefore, the contention of the learned counsel for the appellant that the evidence of PWs.2 and 3 has to be discarded and when once such evidence is adduced the presumption does not arise cannot be accepted. The evidence of PWs.2 and 3 undoubtedly proves the passing of the consideration and the promissory note transaction. 12. It was sought to be contended by the counsel for the appellant that the plaintiff has failed to prove the capacity to lend the money. This, I think, cannot be accepted since the plaintiff is said to be owning Acs.5.00 cents of wet land, which is crop yielding and in fertile area. The plaintiff is said to have sold some property and was having the cash. There is nothing in the cross-examination of PW.1 to show that he has no property or that his claim for being possessed of the money is a falsity. It is not necessary for the plaintiff to show as to where he kept the money. So also the contention of the counsel for the appellant that from the evidence of PW.1 the money was lent at the instance of one Veera Subba Rao and that Subba Rao was not examined and therefore, the theory of lending money is a falsity. It cannot be forgotten that the defendant has taken a plea of signing on blank paper and which evidently relates to the signature appearing on Ex.A.1 and if there are any doubts, it is for him to clear the circumstances of his plea. But, in this case, there is no doubt about the credibility of PWs.2 and 3. On the other hand, the theory of executing the documents in 1977 and keeping them with the Adinarayana is improbable. Further- more, there is no proof of borrowing from Adinarayana and discharge of the said debt to Adinarayana, which is essential to accept the claim of the appellant. The trivial contradictions with regard to the time of the execution of the promissory note are not very relevant while assessing the evidence in civil cases when the evidence was deposing after a long time after the transaction. 13. The appellant tried to rely upon Ex.B.1, which is said to have been given by G.Adinarayana allegedly supporting the contention of the appellant. This affidavit was sought to be filed in O.S.No.74 of 1994, which was the suit filed for specific performance and evidently it was not filed in that suit. As rightly found by the lower Court that affidavit was not sought to be filed in this case. Though the said affidavit is said to have been attested by PW.4, who is an Advocate and related to Adinarayana, he did not support it. Therefore, Ex.B.1 has been rightly rejected by the lower Court. A perusal of Ex.B.1 does not show that any attempt was made to fill the blanks on a blank promissory note containing the signature of the appellant. The differences in the signatures ink of the signatures is sometimes natural. Therefore, none of the contentions raised by the appellant are tenable and the lower court has considered the evidence on right perspective and the theory of the defendant is not believable. There are no grounds to interfere with the judgment and decree passed by the learned Senior Civil Judge. Accordingly, points are answered. 14. In the result, the Appeal Suit is dismissed with costs. _________________________ N.R.L. NAGESWARA RAO, J Date:13.09.2011 INL