THE HON’BLE SRI JUSTICE R.KANTHA RAO S.A. NO. 844 of 2006 Between: Mr.Kanagala Subba Rao …Appellant And Mr.Anumolu Koti Rama Rao @ A.S.Rama Rao …Respondent THE HON’BLE SRI JUSTICE R.KANTHA RAO S.A. NO. 844 of 2006 JUDGMENT: This second appeal is filed against the judgment and decree dated 23.03.2007 passed by the VII Additional District and Sessions Judge (Fast Track Court), Vijayawada in A.S.No.66 of 2005 wherein he confirmed the judgment and decree dated 19.04.2005 passed by the Principal Senior Civil Judge, Vijayawada in O.S.No.729 of 2002. I have heard the learned counsel appearing for the appellant and the respondent. The defendant is the appellant in the present second appeal. The respondent instituted a suit against the appellant basing on a promissory note dated 03.02.2000 for recovery of Rs.2,85,120/-. The appellant contended that the suit promissory note is a forged document and it was created by the respondent as the appellant supported the brother of the respondent in some civil disputes which he had with the respondent. In the course of trial before the learned trial Court, PWs.1 to 3 were examined and Exs.A-1 to A-3 were marked on behalf of the respondent. DWs.1 to 4 were examined and Exs.B-1 and X-1 were marked on behalf of the appellant. PW-1 is the appellant. PWs.2 and 3 are the attestors of the suit promissory note who had categorically spoken to the fact of execution of the promissory note by the respondent in favour of the appellant. PWs.2 and 3 who were examined on behalf of the respondent, however, stated before the trial Court that on the same day, the respondent executed a registered sale deed in favour of the appellant at the office of Sub-Registrar, Kankipadu and he was there till 5.00 p.m. at Kankipadu and he had never been to Vijayawada and therefore, the contention of the respondent that he executed the suit promissory note at Vijayawada is false. Both the courts below have concurrently held that since the respondent proved the execution of promissory note by examining PWs.2 and 3 attestors, the burden shifts on to the appellant to dispute the said fact and non-passing of consideration under the promissory note. They also held that the respondent adduced positive evidence of attestors PWs.2 and 3 in proof of the execution of the promissory note and the appellant did not take any steps to send the suit promissory note for comparison of the signature and opinion of the expert under Section 45 of the Evidence Act. Thus, both the courts have concurrently arrived at the finding that the respondent proved the execution of suit promissory note and accordingly expressing the view that merely because PWs.2 and 3 have stated in their evidence that the respondent did not go to Vijayawada, the evidence of PWs.2 and 3, the attestors of the suit promissory note cannot be brushed aside and accordingly, they relied upon the evidence of PWs.2 and 3 and decreed the suit and the first appellate court confirmed the same. The substantial questions of law framed at the time of admitting the second appeal are that whether it is mandatory on the part of defendant who pleaded the forgery to make an application under Section 45 of the Indian Evidence Act for sending the document containing the disputed signatures to the handwriting expert and whether the trial court merely because the attesting witnesses to promissory note were examined can be relieved from the duty to compare the signature of the defendant on the vakalat and other documents with that of the signature on the suit promissory note. In fact, the above questions are not substantial questions of law to determine in the second appeal. The law is well settled that it is not obligatory on the part of any of the parties to send the disputed document for the opinion of the handwriting expert and the court also may not indulge in comparing the signatures personally when there is positive evidence of the attestors PW.2 and 3. In the absence of any opinion of the expert, it is not appropriate on the part of the court to express its opinion comparing the signatures of the defendant on its own. Both the courts have recorded concurrent findings that the respondent discharged his burden of proving the suit promissory note by examining two attestors and the appellant failed to rebut the presumption in favour of the respondent under Section 118 of the Negotiable Instruments Act that the suit promissory note is supported by consideration. It is not possible to accede to the contention urged by the learned counsel appearing for the appellant that the findings recorded by the courts below are either perverse or contrary to the evidence on record and they cannot be interfered with in this second appeal. For the foregoing reasons, I absolutely see no merit in the second appeal and it is liable to be dismissed. The learned counsel appearing for the appellant made a request to the Court that the appellant had already deposited half of the amount and six months time may be granted to the appellant to pay the remaining decretal amount. In the result, the second appeal is dismissed. However, on hearing both the counsel, six months time is granted to the appellant to pay the remaining decretal amount. There shall be no order as to costs. _______________ R.KANTHA RAO, J Date:01.12.2010 ccm THE HON’BLE SRI JUSTICE R.KANTHA RAO S.A. 844 of 2007 Date:01.12.2010