THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT No. 477 of 2006 JUDGMENT: 1. This Appeal Suit, under Section 96 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) is directed against the Judgment and Decree, dated 24.11.2005 in Original Suit No.105 of 2003 on the file of the II Additional Senior Civil Judge (Fast Track Court), East Godavari at Rajahmundry, whereunder and whereby, the suit filed by the respondent/plaintiff for recovery of Rs.5,11,000/- basing on a promissory note dated 09.05.2000, was decreed. 2. The appellant herein is the defendant, and the respondent herein is the plaintiff, in the suit. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed in the trial court. 3. The plaintiff filed the suit stating that on 09.05.2000, the defendant borrowed an amount of Rs.3,00,000/- from her for the purpose of investment in agriculture and family expenses, agreeing to repay the same with interest @ 24% per annum. The defendant did not repay the same inspite of repeated demands by the plaintiff; that the plaintiff got issued a telegraphic notice on 12.04.2003 demanding the defendant to repay the amount, but the defendant did not repay the amount due thereafter also; that, the defendant is a landlord and as such he is not entitled to the benefits under Act 7/77 and Act 4/38, and hence, the suit for recovery of the debt due under the suit promissory note. 4. The defendant filed written statement denying the material averments in the plaint and stating inter alia that subsequent to receipt of suit summons on 16.6.2003, he filed a petition to examine the suit documents i.e. suit promissory note dated 09.05.2000, which revealed that it was written on an old paper and it is aged about more than 15 years and was affixed with four old revenue stamps each worth Rs.0.20 ps. and the signature thereon does not belong to him; that, the suit promissory note is a created one and the scribe of the promissory note is husband of sister of the plaintiff and its attestor is an unidentified person; that, the suit promissory note was not executed by the defendant and it was not supported by consideration. It is further stated that the plaintiff had no financial capacity to lend the amount and brother of the plaintiff by name G.Venkateswara Raju is husband of defendant’s daughter Nagaveni, and there are some disputes between the families of plaintiff and the defendant in connection with matrimonial life of said G.Venkateswara Raju, and he got issued a notice on 5.4.2003 calling upon his wife to join his company, and he also got issued another notice on 18.4.2003 to the defendant and another with false and baseless allegations, for which the defendant sent a reply on 18.6.2003; that, taking advantage of the family disputes, the plaintiff might have colluded with his family members and created the false promissory note, and hence, the suit is liable to be dismissed. 5. Basing on the above pleadings, the trial court framed the following issues for trial. 1) Whether the suit pronote is true and valid ? 2) Whether the suit pronote is not supported by consideration ? 3) Whether the plaintiff is having capacity to lend the suit amount ? 4) Whether the plaintiff is entitled to the suit amount as prayed for ? 5) to what relief ? 6. During trial, P.Ws. 1 to 3 were examined and Exs.A1 to A4 were got marked on behalf of the plaintiff, and D.W.1 was examined and no documents were marked on behalf of the defendant. 7. The trial Court, upon appreciation of the evidence on record, came to the conclusion that the suit promissory note was executed by the defendant after receiving the consideration, and accordingly decreed the suit with interest @ 12% per annum from the date of filing of the suit till the date of decree and thereafter @ 6% per annum till the date of realization on Rs.3,00,000/-. Challenging the same, the present appeal is filed by the defendant. 8. The learned counsel for the appellant/defendant contended that due to the strained relationship between the plaintiff and the defendant, the promissory note was brought into existence by forging signature of the defendant; that, the plaintiff had no capacity to lend the amount under the suit promissory note and that the suit promissory note is not supported by consideration, and hence, he prays to set aside the impugned judgment and decree. 9. On the other hand, the learned counsel for the respondent/plaintiff contended that the evidence of P.W.1 is very clear that she was having capacity to lend the amount to the defendant; that, the defendant is none other than maternal uncle of the plaintiff and so the contention of entertaining rancor cannot be accepted; that, the initial burden placed on the plaintiff stood discharged from the evidence of P.Ws. 1 to 3; that, the defendant, having taken the defence of forgery, has not established the same beyond preponderance of probability; that, the trial court, after an elaborate consideration of the evidence on record, decreed the suit and there are no grounds to interfere with the same, and hence, he prays to dismiss the appeal. 10. Now, the points that arise for consideration are, whether the suit promissory note is executed by the defendant or the signature of the defendant is forged; and whether the suit promissory note is supported by consideration and whether the plaintiff was having capacity to lend the suit amount ? 11. This is a suit for recovery of money basing on a promissory note. There cannot be any dispute that in a suit based upon promissory note, the initial burden is on the plaintiff to establish that after receipt of the consideration, the promissory note was executed by the defendant. Further, in view of the fact that a specific plea has been taken by the defendant in the written statement that the suit promissory note is forged, execution of the document has to be established by the plaintiff. Similarly, in view of the specific plea of the defendant in his written statement that the plaintiff had no capacity to lend the amount, the burden is on the plaintiff to establish the same also. 12. The evidence of P.W.1, who is plaintiff, is very clear that her husband died five years prior to execution of the suit promissory note and she derived the properties worth about Rs.27.00 lakhs from her husband besides his death and terminal benefits to a tune of Rs.8.00 lakhs. That part of the testimony of P.W.1 remained unchallenged. Further more, the contents in the affidavit filed in lieu of her chief- examination would clearly go to show that she got Rs.8,00,000/- towards service benefits due to death of her husband while in service, and she also has properties at Rajahmundry and Kakinada. That evidence remained unchallenged. So, from her evidence, it is clear that she was having capacity to lend the amount to the defendant. 13. No doubt, a specific plea has been taken by her that the amount under suit promissory note was given to the defendant. But, as seen from her cross-examination, it is elicited from her evidence that she received the amount of Rs.2,25,000/- from P.W.3 and added Rs.25,000/- and paid the amount to the defendant. No doubt, P.W.3 has not stated that P.W.1 had taken amount of Rs.2,25,000/- from him for the purpose of giving it to the defendant. There cannot be any dispute that entire evidence of a witness has to be taken into consideration for the purpose of deciding the veracity of the witness. An inadvertent admission made by P.W.1 cannot be taken as a sole circumstance to disbelieve the evidence of P.W.1. Some minor discrepancies are bound to occur even in the case of truthful witnesses when she is made to depose about a fact after lapse of several years. The defendant borrowed the amount in the year 2000 whereas P.W.1 was testifying that fact after lapse of five years. Therefore, some minor inconsistencies are bound to occur in her evidence. But, such minor inconsistencies cannot be given undue importance. Therefore, the capacity of plaintiff to lend the amount is proved beyond preponderance of probability. 14. Coming to execution of Ex.A1, P.W.2, who is none other than son-in-law of the plaintiff, is the attestor of Ex.A1. P.W.3 is none other than husband of sister of plaintiff. On the ground that these two witnesses are closely related to P.W.1, the learned counsel for the appellant contended that their evidence has to be viewed with suspicion. There is no law that evidence of a close relative has to be disbelieved on the ground that he is closely related to the plaintiff. At best, their evidence has to be appreciated carefully and cautiously. After appreciation of the evidence, if their evidence stands in the category of wholly reliable, then there is no reason to discard their evidence. In view of the fact that the defendant is also closely related to the plaintiff, the relationship of plaintiff with P.Ws. 2 and 3 by itself is not a ground to discard their evidence. They have no enmity or rancor to speak something against the defendant. Their evidence is very clear that the defendant executed Ex.A1-suit promissory note after receipt of consideration. 15. With regard to the plea of forgery, P.Ws. 1 to 3 have categorically stated that the defendant signed on the promissory note after receipt of consideration. From their evidence, coupled with the recitals in Ex.A1, the initial burden lying on the plaintiff stands discharged. Except the oral testimony of the defendant, there is no other evidence to show that Ex.A1 is forged one. A copy of the suit promissory note is filed along with plaint and so it is deemed that a copy of it had been served on the defendant. In such a case, if he had not signed on the promissory note, he would have taken necessary steps for sending the document to expert for comparison of the disputed signature on the suit promissory note with that of his admitted signatures. He has not filed any such application before the trial Court when the suit was pending, to send the suit promissory note to expert for comparison, especially when he had taken a specific plea of forgery. There is no other reason for the plaintiff, who is widowed lady, to forge signature of her maternal uncle (defendant) and create a document like Ex.A1. In the absence of any reason or motive and especially when the plaintiff was having sufficient income and properties, the question of forgery or fabrication of Ex.A1 does not arise. Therefore, the plea of forgery has not been established by the defendant. The trial Court appreciated the evidence on record in right perspective and arrived at right conclusion. None of the findings is shown to be perverse or not based upon record. In the absence of the same, there are no grounds to interfere with the same. 16. With regard to the rate of interest, the defendant is said to be an agriculturist and admittedly the debt was borrowed for investment in agriculture and for family expenses. Therefore, reasonable interest can be granted after filing of the suit. Therefore, the judgment and decree of the trial court is confirmed, reducing the interest from 12% per annum to 6% per annum from the date of suit till the date of realization. 17. With the above modification in rate of interest, the Appeal Suit is dismissed. No costs. --------------------- (K.C.Bhanu, J.) 29.03.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT No. 477 of 2006 29.3.2011 THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT No. 477 of 2006 29.3.2011 Between: Kurakula Appa Rao …Appellant And Varrey Vijaya Lakshmi …Respondent