HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 635 OF 2011 DATED 22ND NOVEMBER, 2011 BETWEEN Jangala Suryanarayana …….Appellant and Prathi Rajeswara Rao ……Respondent HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 635 OF 2011 JUDGMENT: This Second Appeal under Section 100 CPC is filed aggrieved by the judgment and decree dated 15.02.2011 passed by the learned Principal District Judge, West Godavari, at Eluru in A.S.No. 217 of 2009, confirming the judgment and decree dated 11.09.2009 passed in O.S.No. 119 of 2008 by the file of the learned Junior Civil Judge, Chinthalapudi, West Godavari District. The respondent herein filed the suit in O.S.No. 119 of 2008 on the file of the learned Junior Civil Judge, Chintalapudi against the appellant herein for recovery of Rs.1,00,000/- on the strength of a promissory note. It was the case of the respondent/plaintiff in the suit that on 28.06.202 the appellant/defendant borrowed a sum of Rs.1,00,000/- and executed the suit pronote agreeing to repay the same with interest at 24% per annum. On 27.06.2005, the appellant/defendant made part payment of Rs.1,000/- and endorsed the same on the back of the suit promissory note and on 27.7.2005 he paid a sum of Rs.70,000/- through a mediator. Subsequently, he did not choose to pay the remaining amount. As such, the respondent/plaintiff filed the aforesaid suit. In the said suit, the appellant/defendant filed a written statement denying the suit averments. It was his case that the suit pronote was not pertaining to him; and that he used to sign in Telugu and not in English; and that the name of the person through whom he sent Rs.70,000/- was not mentioned in suit plaint; and that he did not make any payment of Rs.1000/- as part payment towards the alleged suit promissory note. Basing on the above pleadings, the trial Court framed the issues: that (1) whether the suit promissory note is a forged and create one ? (2) Whether the plaintiff is entitled for recovery of the suit amount from the defendant as prayed for ? and (3) to what relief?. Before the trial Court, the respondent/plaintiff was examined as P.W.1 and Exs. A.1 and A.2 were got marked on his behalf. On behalf of the appellant/defendant, he himself was examined as D.W.1 and Exs.B.1 to B.3 were got marked. The trial Court on thorough consideration of the oral and documentary evidence, holding that the respondent/plaintiff had successfully discharged his burden in proving the execution of Ex.A.1-promissory note by the appellant/defendant, allowed the suit as prayed for through judgment and decree dated 11.09.2009. On appeal in A.S.No.217 of 2009 by the appellant/defendant against the judgment and decree dated 11.09.2009, the lower Appellate Court dismissed the same through judgment and decree dated 15.02.2001. Hence the present second appeal. It is submitted by the learned Counsel for the appellant, apart from the substantial questions of law sought to be raised in the grounds of memorandum of Second Appeal, that the defendant never executed Ex.A.1 promissory note ; and that there was no independent evidence to prove the passing of consideration under the suit pronote; and that as the respondent/plaintiff failed to prove the execution of Exs.A.1 and A2 by examining independent witness, the burden is on the appellant/defendant; and that respondent/plaintiff having categorically asserted that Exs.A.1 and A.2 did not belong to the defendant, both the Courts below ought to have dismissed the suit itself. Perused the case. Before adverting to the contentions of the learned Counsel on either side, be it noted that the scope of this Court under Sec. 100 C.P.C. is quite narrow. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, it is to be seen that as to whether any substantial questions of law raised by the learned Counsel for the appellant in the Memorandum of Grounds need consideration warranting interference by this Court in this second appeal. Time and again, the Supreme Court held that this Court is entitled to exercise its power under Section 100 CPC only when a substantial question of law arises in a second appeal for adjudication but not otherwise Keeping in mind the law laid down by the Supreme Court Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 and Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, (2011) 1 SCC 673, I shall now proceed to examine the pleadings and evidence adduced by both the parties as well as the Judgments and Decrees of the Courts below so as to see whether the findings recorded by them are justified in law and on fact. I n Kundan Lal Rallaram Vs. Custodian,Evacue Property (AIR 1961 SC 1816) it was held by the Apex Court that Section 118 of the Negotiable Instruments Act lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and court shall presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for Consideration. In effect it throws the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be. The phrase "burden of proof" has two meaning - one the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence, i. e. oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact. In Yalamanchili Vijayakishore Vs. Peeta Brahmanandarao {2006 (5) ALT 488}, it was held that the holder of the promissory note must prove its execution as well as its contents when the respondent/defendant denied the execution and consideration. When a negotiable instrument was made for consideration, the burden initially rests on the plaintiff who has to prove that the promissory note was executed by the defendant. On its proof, the rule of presumption under Section 118(a) of the NI Act helps him to shift the burden on the defendant. The burden of proof as a question of law rests therefore on the plaintiff in the first instance, but as soon as the execution is proved, section 118 of the NI Act imposes a duty on the Court to raise a presumption in his favour that the said instrument was made for consideration. That presumption shifts the burden of proof namely establishing a case that the promissory is not supported by consideration to the defendant. The defendant may adduce direct or circumstantial evidence to prove that the promissory note was not supported by consideration. If he adduces acceptable evidence, the burden again shifts to the plaintiff. If the circumstances relied on by the defendant are so compelling the burden is on the plaintiff to prove the contra. The statutory presumption though is one of the law is also question of fact to be proved in each case. The presumption raised under Section 118 of the NI Act is not in respect of consideration mentioned in negotiable instruments, the presumption is in the favour of there being a consideration for the negotiable instruments. Any consideration which is a valid consideration in law is valid and enforceable. If a particular consideration mentioned in the negotiable instrument is found to be false and some other consideration is set up, that is a factor which the Court would take into consideration in deciding whether the defendant has discharged the burden cast on him by Section 118 of the NI Act. The Court is required to consider the entire evidence laid before it. Very often important admissions elicited by counsel for the defendant in the cross-examination of the plaintiff certainly can be availed of by the defendant. The Court therefore must always bear in mind the statutory presumption under Section 118 (a) and also the fact that the burden of proof lies on the defendant and to see whether the burden has been discharged or not. How burden can be discharged or whether it has been discharged is a matter of appreciation of evidence. The failure of the plaintiff to prove a particular consideration may itself probabilise the defendants version and lead to conclusion that there was no consideration at all; on the other hand , it may not have any consideration. (See G.Ramatulasamma Vs.Kogowaraiaha: 1984 (2) ALT 333). If the case on hand is tested on the touchstone of the aforesaid well settled principle of law, the respondent/plaintiff in his oral evidence proved the execution of Ex.A.1 as well as Ex.A.2- endorsement of part payment. The defendant did not elicit any worthy and supporting evidence contrary to the stand of the respondent/plaintiff in his chief examination, and he while away the cross examination of the plaintiff in the form of suggestions suiting the averments made in the written statement. As such burden shifted on to the appellant/defendant. In the cross-examination of the plaintiff, the defendant alleged that there were business dealings between them and he discharged the debt covered under Ex.A.1 in terms of Ex.B.1 statement of account. There was no whisper in the written statement of the defendant about this discharge by way of Ex.B.1. On the foot of Ex.B.1, the appellant/defendant alleged that he discharged the entire debt. However, in the written statement, except denying the execution of Exs.A.1 and A.2, the appellant/defendant had not furnished any details. Apropos the denial of signature appending on Ex.A.1 promissory note by the appellant/defendant, the Courts below examined the same with reference to the signature of the appellant/defendant on his reply notice Ex.B.3, and it was found that the contention of the appellant/defendant that he would sign in Telugu only is quite vague and incorrect. The other submission of the learned Counsel for the appellant/defendant is that the respondent/plaintiff having categorically asserted that Exs.A.1 and A.2 did not belong to the defendant, both the Courts below ought to have dismissed the suit itself. Both the Courts below on analysis of the evidence on record found that the same is incorrect in as much as while recording the evidence, the respondent/plaintiff made such statement in the process of denying the suggestion given by the appellant/defendant and in the process typographical mistake took place and as such, the appellant/defendant cannot take advantage of such typographical mistake occurred while recording evidence. Therefore, it is clear that the respondent/plaintiff proved the execution of Exs.A.1 and A.2 by the appellant/defendant. The lower appellate Court re-appreciated the evidence on record in proper perspective and rightly confirmed the judgment and decree passed by the trial Court through the judgment and decree under appeal, which do not call for interference. Viewed from any angle, I donot see any question of law much less a substantial question of law involved in the Second Appeal warranting inference with the well founded judgments and decrees of the Courts below. The Second Appeal fails and is accordingly dismissed. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 22ND NOVEMBER, 2011. Msnro