Discharge plea not proved = D.W-2 is said to be the scribe and document writer. The evidence of D.W-3 does not show the payment of money in his presence and he claims to have casually attested Ex.B-1. It is to be noted that both the Courts below have taken into consideration Exs.A-5 and A-6-charge sheet and report in C.C.No.362 of 2002, respectively, and held that the seven demand drafts which were sought to have been issued by the appellant were fraudulently encashed by himself and it is a subject matter of criminal case against the appellant. This circumstance clearly shows that the conduct of the appellant is not believable and when once a legal notice has been issued without return of the promissory note, it is difficult to believe that a sum of Rs.25,000/- has been paid by the appellant under Ex.B-1. There is also no evidence of the elders who said to have settled the dispute.

HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO

SECOND APPEAL No.688 of 2012

JUDGMENT:

          The unsuccessful defendant in O.S.No.32 of 2003 on the file of the Junior Civil Judge, Palakonda, Srikakulam District, is the appellant herein. The suit was filed for recovery of the money due on a promissory note, dated 05.08.2000, for a sum of Rs.35,000/- which is said to have been borrowed by the defendant and in evidence thereof, the promissory note was executed.

The defendant filed a written statement admitting the borrowing, but contended that he has paid a sum of Rs.7,000/- under seven demand drafts to the plaintiff and asked the plaintiff to credit the same to the suit pronote amount in part. The plaintiff also got issued a legal notice to the defendant on 01.04.2002. According to the defendant, a dispute was raised and the elders have settled it and that, a sum of Rs.25,000/- was agreed to be paid and accordingly, the defendant has paid a sum of Rs.25,000/- to the plaintiff on 10.04.2002 under Ex.B-1 in the presence of D.Ws.2 and 3 and therefore, there is no liability on him to pay the suit amount.

After framing the necessary issues, the trial Court has disbelieved the claim of the appellant and decreed the suit. As against that, A.S.No.6 of 2007 was preferred to the Court of the Senior Civil Judge, Rajam, and the same was dismissed. Aggrieved by the said judgment, the present Second Appeal is sought to be filed.

The contention of the learned counsel for the appellant is that both the Courts below have not properly taken into consideration the payment of Rs.7,000/- by the defendant under seven demand drafts and also did not properly appreciate the evidence of D.Ws.2 and 3.

D.W-2 is said to be the scribe and document writer. The evidence of D.W-3 does not show the payment of money in his presence and he claims to have casually attested Ex.B-1. It is to be noted that both the Courts below have taken into consideration Exs.A-5 and A-6-charge sheet and report in C.C.No.362 of 2002, respectively, and held that the seven demand drafts which were sought to have been issued by the appellant were fraudulently encashed by himself and it is a subject matter of criminal case against the appellant. This circumstance clearly shows that the conduct of the appellant is not believable and when once a legal notice has been issued without return of the promissory note, it is difficult to believe that a sum of Rs.25,000/- has been paid by the appellant under Ex.B-1. There is also no evidence of the elders who said to have settled the dispute. Both the Courts below, even on the question of facts, have disbelieved the plea of discharge of the appellant. Therefore, there is no substantial question of law involved in this Second Appeal and the Second Appeal is devoid of merits.

The Second Appeal is, accordingly, dismissed. There shall be no order as to costs.

__________________________

JUSTICE N.R.L.NAGESWARA RAO

29^th October 2012

DR