HONOURABLE SRI JUSTICE C.V. RAMULU SECOND APPEAL No. 937 OF 2010 DATED 8TH SEPTEMBER, 2010. BETWEEN. S.Vijaya Kumar …..Appellant And Y.Anil Kumar Reddy ….Respondent. HONOURABLE SRI JUSTICE C.V. RAMULU SECOND APPEAL No. 937 OF 2010 JUDGMENT: This Second Appeal is directed against the judgment and decree dated 28.04.2010 made in A.S.No. 166 of 2007 on the ﬁle of the learned Principal District Judge, Nellore, whereunder the judgment and decree dated 19.9.2007 made in O.S.No. 231 of 2006 on the file of the learned Principal Senior Civil Judge, Nellore, dismissing the suit was reversed and decreed the suit as prayed for. Appellant herein is the defendant. Respondent herein is the plaintiff. Respondent laid suit in O.S.No. 231 of 2006 on the ﬁle of the learned Principal Senior Civil Judge, Nellore for recovery of money on the basis of pronote, Ex.A.1. It was the case of respondent that defendant borrowed a sum of Rs.2,50,000/- from him and executed promissory note dated 2.5.2005 and in spite of several repeated requests, the money was not repaid. Defendant ﬁled written statement stating that plaintiﬀ is stranger to him and there are diﬀerences between him and one Rayaprolu Ravindra, who is the ﬁrst attestor of the suit promissory note, Ex.A.1. During the course of negotiations, the said Rayaprolu Ravindra threatened him by saying that he would trouble him. Due to these diﬀerences, the said Ravindra got created the suit promissory note in the name of the plaintiﬀ by forging his signature with the help of scribe and second attestor. The respondent/plaintiff examined P.Ws.1 to 4 and marked Ex.A.1. On behalf of the appellant/defendant, he himself was examined as DW.1., however, no documentary evidence was marked. After a detailed consideration of the entire evidence, the trial Court came to the conclusion that the plaintiﬀ failed to establish the execution of Ex.A.1 and therefore dismissed the suit. The reasons recorded by the trial Court reads as under: “ Plaintiﬀ has not stated in his aﬃdavit about the presence of either the scribe or the attestors of Exhibit A.1 suit promissory note at the time of lending of Rs.2,50,00/- to the defendant and execution of Exhibit A.1 promissory note by the defendant. As mentioned earlier, the defendant has taken the plea speciﬁcally in the written statement that he had disputes with Ravindra (PW.2) one of the attestors of Exhibit A.1 promissory note and the other attestor and scribe of suit promissory note are henchmen of said Ravindra, and he neither borrowed amount from plaintiﬀ nor executed promissory note in favour of plaintiﬀ. It is no doubt true the said Ravindra (PW.2), the other attestor of Exhibit A.1 promissory note, Ashok Kumar Reddy (PW.4) and the scribe D.Harischandra Reddy (PW.3) have stated in their respective aﬃdavits reiterating the same version that the defendant had borrowed sum of Rs.2,50,000/- from plaintiﬀ on 9.5.2005 and signed in the promissory note scribed by PW.3 Harishandra Reddy and PWs.2 and 4 had attested the same. But, as mentioned earlier, the very evidence of plaintiﬀ does not disclose about the presence of PWs 2 to 4 at the time of alleged borrowal of amount by the defendant from him or at the time of alleged execution of Exhibit A.1 promissory note by the defendant. In view of the absence of said material fact in the evidence of plaintiﬀ, it cannot be said that the evidence of plaintiﬀ is corroborated with the evidence of his witnesses P.Ws. 2 to 4 on relevant material facts. As seen from the cross-examination of defendant on behalf of plaintiﬀ, here it appears that there is no speciﬁc suggestion to the defendant that he borrowed sum of Rs.2,50,000/- from plaintiﬀ and executed Exhibit A.1 promissory note. In the absence of such speciﬁc suggestion to the defendant, the version of defendant that he neither borrowed amount from plaintiﬀ nor executed suit promissory note in his favour remains unchallenged. Defendant got suggested to P.Ws. 1 to 3 that he never executed Exhibit A.1 promissory note and the same is forged and fabricated one, further got suggested to PW.4 that P.W.4 never signed in Exhibit A.1 promissory note as attestor and he is no way connected with that promissory note. As mentioned earlier, the evidence of PW.1 also does not disclose about the presence of PW.4 or the alleged attestation of suit promissory note by PW.4. It is no doubt true, during cross-examination the defendant had denied his signature on the vakalat ﬁled on his behalf, and also denied his signature on the written statement at the ﬁrst instance and after some time he admitted his signature on the written statement. As mentioned earlier, no speciﬁc suggestion was put to him disputing his version set out in the written statement. Simply because the evidence of defendant is not consistent, the case of plaintiﬀ cannot be accepted on such evidence, as burden lies on plaintiﬀ to establish the execution of Exhibit A.1 promissory note. In view of material discrepancy in the evidence and pleading of plaintiﬀ about the date of alleged execution of Exhibit A.1 promissory note, and in view of fact that the evidence of plaintiﬀ is silent about the presence of any of his witnesses i.e. P.Ws. 2 to 4 at the time of alleged transaction under Exhibit A.1. promissory note, coupled with the fact that no speciﬁc suggestion was put to defendant that he borrowed amount from plaintiﬀ and executed suit promissory note Exhibit A.1, it cannot be held that the version of plaintiﬀ about the alleged Exhibit A.1 transaction is consistent and convincing. As the evidence of plaintiﬀ itself gives scope to doubt about the presence of P.Ws. 2 to 4 at the time of alleged execution of Exhibit A.1 promissory note, their evidence does not inspire any conﬁdence. Therefore, the contention of plaintiﬀ set out in the written arguments ﬁled on his behalf that he successfully proved the due execution of Exhibi A.1 promissory note cannot be accepted. As the evidence of plaintiﬀ is not consistent with his own pleading on material fact i.e. the date of alleged execution of suit promissory note and his evidence is silent about the presence of P.Ws. 2 to 4 at the time of alleged execution of suit promissory note, it can be held safely that the evidence brought on record on behalf of plaintiﬀ is not consistent, convincing and trustworthy. Therefore, it can be held that plaintiﬀ failed to establish the due execution of Exhibit A.1 promissory note by the defendant.” Aggrieved thereby, the respondent/plaintiff ﬁled appeal in A.S.No.166 of 2007 on the ﬁle of the learned Principal District Judge, Nellore. The lower appellate Court after perusal of the judgment of the trial Court as well as other material placed before it, came to conclusion as under: “ In view of the above discussion of the learned Principal Senior Civil Judge, it is necessary to look into the promissory note which is marked as Ex.A.1. A perusal of this document shows at the top right side, the date is mentioned as 9.5.2005. In the printed promissory note, the columns are ﬁlled as 2005, May, …………………….. In para-3 of the plaint, it is mentioned, the defendant herein has borrowed a sum of Rs.2,50,000/- from the plaintiﬀ on 2.5.2005 for his necessities. But in the list of documents, it is mentioned, the demand promissory note dated 9.5.2005. In the aﬃdavit ﬁled in support of the plaint, the date is mentioned as 9.5.2005. In para-3 of the written statement, the fact is denied by mentioning the same words which are mentioned in the plaint. But there is no clear averment in the written statement to the eﬀect that he did not borrow amount from the plaintiﬀ either on 2.5.2005 or on 9.5.2005 as mentioned in the body of the plaint or as mentioned in the promissory note. A perusal of the plaint, sworn aﬃdavit ﬁled in support of the plaint and Ex.A.1 promissory note made it clear the words mentioned in para-3 of the plaint that the defendant borrowed Rs.2,50- ,000/- from the plaintiﬀ on 2.5.2005 is only a typographical mistake which was un-noticed either by the counsel for the plaintiff or by the plaintiﬀ. As there is no speciﬁc denial of the said date in the written statement except a general denial, the plaintiﬀ did not choose to take steps to rectify the said typographical mistake occurred in the body of the plaint. In the sworn aﬃdavit of P.Ws. 1 to 4 which were ﬁled in support of their chief examination, all the witnesses clearly stated, the defendant borrowed Rs.2,50,000/- from the plaintiﬀ on 9.5.2005 and executed Ex.A.1 promissory note. Though there is no mention in the chief aﬃdavit of P.W.1 with regard to presence of the scribe and attestors at the time of execution of the promissory note by the defendant, the learned counsel for the defendant clearly elicited during the course of his cross-examination, one Ravi and Ashok are attestors of Ex.A.1 promissory note. Harischandra Reddy had scribed Ex.A.1 promissory note. The defendant had signed on Ex.A.1 promissory note. In the sworn aﬃdavit which was ﬁled by the defendant in support of his chief examination, he stated, he did not borrow Rs.2,50,000/- from the plaintiﬀ on 2.5.2005 and he did not execute promissory note on that day. But it is deﬁnite case of P.Ws. 1 to 4 and also recitals of Ex.A.1 the defendant borrowed a sum of Rs.2,50,000/- from the plaintiﬀ on 9.5.2005. The learned counsel for the defendant had taken the typographical mistake which occurred in the body of the plaint and magniﬁed the same. The learned Principal Senior Civil Judge also had taken the said typographical mistake as grave error committed by the plaintiﬀ by ignoring the entire positive evidence adduced on behalf of the plaintiﬀ to prove the validity and genuineness of Ex.A.1 by examining the scribe and attestors of the document and also by producing the document. The learned Principal Senior Civil Judge, Nellore ought to have taken into consideration the conduct and attitude of the defendant when he had gone to the extent of denying his own signatures in Vakalat and written statement when they were confronted to him during the course of his cross-examination. There is no doubt true when the defendant had taken the plea of forgery, the plaintiﬀ ought to have taken steps to take out the disputed document to the handwriting and ﬁnger print expert for comparison of the signature of the executant with that of the admitted signatures. But the defendant failed to produce any contemporary signatures to enable the Court to send the disputed signature available in Ex.A.1 with that of the admitted signatures. Even if the document was sent to the handwriting and ﬁnger print expert, his opinion was only an opinion and it cannot be conclusive proof. When the plaintiﬀ has produced cogent and clear evidence by examining the attestors and the scribe and also by marking the document as P.Ws. 2 to 4 and Ex.A.1, the initial burden was discharged by him. The defendant failed to disprove the contention of the plaintiﬀ by adducing rebuttal evidence. When the plaintiﬀ has produced positive evidence, the burden shifts on the defendant to take steps to take out the suit document to handwriting and finger print expert to compare the disputed signature available in Ex.A.1 with that of his admitted signatures. He also failed to take any steps to send the disputed document to handwriting and ﬁnger print expert to get his opinion. As already discussed above the ﬁnal report of the handwriting and ﬁnger print expert is only an expert opinion. It will not be a conclusive proof. When the plaintiﬀ has produced convincing evidence to prove the execution of the document in his favour on 9.5.2005 by the defendant after borrowing a sum of Rs.2,50,000/- it is not proper to say, non sending of the disputed document to handwriting and ﬁnger print expert is fatal to the contention of the plaintiﬀ. The lower Court did not properly appreciate the oral and documentary evidence adduced on behalf of the plaintiﬀ and came to an erroneous conclusion. As the plaintiﬀ proved his case by marking Ex.A.1 and by examining P.Ws. 2 to 4 to substantiate his contention, he is entitled to recover the amount due to him under Ex.A.1. Hence, I answer the point infavour of the appellant and against the respondent.” and decreed the suit as prayed for. The learned Counsel for the appellant strenuously contended that the witnesses as well as the scribe of Ex.A.1 gave inconsistent statements and therefore, the trial Court has rightly held that the plaintiﬀ failed to establish the execution of Ex.A.1 document and rightly dismissed the suit. The learned Counsel for the appellant further contended that the plaintiﬀ neither pleaded in the plaint averments nor in the aﬃdavit in chief ﬁled by him as to the presence of the witnesses or as to the scribe. Therefore, the Trial Court was right in dismissing the suit, which the appellate Court erroneously allowed and decreed the suit. The appellate Court erred in holding that the plaintiﬀ discharged initial burden as to the execution of Ex.A.1 document and the appellant/defendant has not taken steps either for sending Ex.A.1 for expert opinion or rebutted by way of any evidence, both oral and documentary. I am of the considered opinion that as noticed above, the evidence recorded by the lower appellate Court that the plaintiﬀ has discharged the initial burden and the defendant failed to produce any evidence both oral and documentary and further failed to get the document examined by expert at that point of time, cannot be said to be arbitrary or illegal. What the learned Counsel for the appellant stated is that there is some inconsistency in the evidence of P.Ws. 2 to 4. But all of them unequivocally stated that the document Ex.A.1 was executed. All these things would show that Ex.A.1 was executed in the presence of the witnesses as well as the scribe. Against this there is no rebuttal evidence let in by the appellant/defendant. Therfore, it cannot be said that the lower appellate Court has committed any error calling interference of this Court under Section 100 CPC. No question of law, much less a substantial question of law arises for consideration in this Second Appeal. The Second Appeal is devoid of merits and is liable to be dismissed The Second Appeal is accordingly dismissed at the admission stage. -------------------------------- JUSTICE C.V. RAMULU 8T H SEPTEMBER, 2010. Msnr.