THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1193 of 2010 July 15, 2011 Between: Garigipati Venkata Kesava Rao, S/o.Ramalingeswara Rao ... Appellant And Prathipati Sri Lakshmi, W/o.Sai Suresh ...Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1193 of 2010 JUDGMENT: This second appeal is filed by the unsuccessful defendant in a suit for recovery of money instituted by the respondent (plaintiff). The plaintiff filed O.S.No.1366 of 2000 on the file of the Court of the Principal Junior Civil Judge, Kakinada for recovery of a sum of Rs.99,975/- based on a promissory note dated 27.12.1998 executed by the defendant. The defendant opposed the suit mainly on two grounds, namely, that the plaintiff had no capacity to lend money as he himself was heavily indebted and that suit promissory note was a concocted by the plaintiff as there have been disputes between the defendant and the husband of the plaintiff. During the trial, the plaintiff examined himself as P.W.3, her husband as P.W.1 and the scribe of Ex.A1 promissory note as P.W.2. The defendant was the lone witness and no documents were marked. Considering the evidence, the trial Court as well as the appellate Court rejected the defence and decreed the suit. In this appeal, the main question that is pressed is that the defendant filed applications under Section 45 of the Indian Evidence Act, 1872 praying the Courts below to send Ex.A1 to handwriting expert and the said applications were dismissed. The dismissal of the applications is incorrect and unsustainable in law. Some what related to the same ground, it is also contended that even when the matter was pending in the appellate stage, the appellant filed I.A.No.701 of 2009 for sending the suit promissory note to handwriting expert which was rejected erroneously. There is no dispute that Ex.A1 promissory note carries with it a presumption as to its execution and passing of consideration under the same. The initial burden lies on the defendant alone to prove that the promissory note is concocted. It appears that the appellant made half- hearted efforts. He did not pursue the matter to its logical end, except filing revision petitions which were dismissed. Therefore, when the matter was pending before the appellate Court, there is no requirement of the appellate Judge again considering the application especially when the High Court was not inclined to allow the revision petitions filed against the orders of the trial Court dismissing the applications to send the suit promissory note to handwriting expert. The plaintiff, as found by both the Courts below, proved the execution of Ex.A1 promissory note and also discharged the initial burden that the defendant borrowed the money under Ex.A1. The second appeal is misconceived and is, accordingly, dismissed. _______________ (V.V.S.RAO, J) July 15, 2011 YS