To prove the passing of consideration from the plaintiff, the plaintiff made an attempt to examine the scribe of Ex.A-1 promissory note as P.W.3 and also examined one of the attestors in Ex.A-1 promissory note as P.W.2. P.Ws.2 and 3 testified about the passing of consideration of Rs.3,00,000/- from the plaintiff to the defendant under Ex.A-1 promissory note. It is not the case of the defendant that he is having enmity with P.Ws.2 and 3, due to that they deposed falsehood against him. I see no reason to disbelieve the evidence of P.Ws.2 and 3. P.W.1 is the plaintiff. His evidence also supports the case of plaintiff.

HIGH COURT OF ANDHRA PRADESH

TUESDAY ,THE SECOND DAY OF JANUARY

TWO THOUSAND AND TWENTY FOUR

PRSENT

THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO

FIRST APPEAL NO: 574 OF 2007

Between:

1. SINDIRI MADHANA MOHAN RAO S/o.Chandra Sekhar Rao

Business

R/o.Pupalavari Street,

Near Kiran Shop,

Runkana Buildings,

...PETITIONER(S)

AND:

1. MAMIDI MALLESWARARAO S/o.Late Appanna

Cultivation

R/o.Mamidivanipeta Village,

Kotabommali Mandal, Srikakulam.

...RESPONDENTS

Counsel for the Petitioner(s): S A V RATNAM

Counsel for the Respondents: ARAVALA RAMA RAO

The Court made the following: ORDER

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HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO

Appeal Suit No.574 of 2007

Judgment:

The appeal is filed by the defendant in O.S.No.5 of 2005 on the file

of Principal Senior Civil Judge’s Court, Srikakulam, Srikakulam

District. The respondent herein is the plaintiff in the said suit.

2. The parties will hereinafter be referred to as arrayed before the

trial Court.

3. The respondent/plaintiff filed the suit for recovery of a sum of

Rs.4,59,750/- with costs and also with future interest.

4. The brief averments in the plaint are as follows:

The defendant borrowed a sum of Rs.3,00,000/- from the plaintiff

for the purpose of business agreeing to repay the same with interest at

18% per annum and executed the suit promissory note in favour of the

plaintiff on 11-01-2002 at Kotabommali village. In spite of several

demands made by the plaintiff, the defendant did not choose to pay the

amount due under the suit promissory note and postponed the

repayment. The plaintiff got issued a legal notice to the defendant on

19-11-2004 demanding him to pay the amount with interest, which was

returned with an endorsement that the defendant was found absent.

Hence, the plaintiff is constrained to file the suit for recovery of amount.

5. The brief averments in the written statement filed by the

defendant are as follows:

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The defendant denied the plaint allegations. It is contended that

the transaction is not correct and the plaintiff is not known to him. He

never executed the suit promissory note and he has not borrowed any

amount from the plaintiff at any point of time. He had no necessity to

borrow the amount from the plaintiff or from anybody. He contended

that the attestors and scribe are henchmen of the plaintiff and they

might have colluded together and fabricated the suit promissory note

with a view to harass him defendant. Since the suit promissory note is

denied and unenforceable, the suit is liable to be dismissed. He prayed

to dismiss the suit.

6. Based on the above pleadings, the following issues are settled

for trial by the trial Court:

(1) Whether the suit promissory note is true, valid and supported

by consideration ? and

(2) To what relief ?

7. During the course of trial, on behalf of the plaintiff, the

plaintiff himself is examined as P.W.1 and also examined the attestor

and scribe of the promissory note as P.Ws.2 and 3 and marked Ex.A-1

to A-4. On behalf of the defendant, the defendant is examined as D.W.1

and no documentary evidence is adduced on his behalf.

8. After completion of trial and hearing arguments of both sides,

the trial Court decreed the suit for Rs.4,59,750/- with costs and also

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as_574_2007

with subsequent interest at 6% per annum on the principal amount of

Rs.3,00,000/- from the date of filing of the suit till realization.

9. Aggrieved against the said judgment and decree, the

defendant filed the present appeal questioning the finding given by the

trial Court.

10. Heard Smt. S.A.V. Ratnam, learned counsel for the appellant/

defendant and Sri Aravala Rama Rao, learned counsel for the

respondent/plaintiff.

11. The learned counsel for appellant would contend that the

respondent/plaintiff has no capacity to lend money and Ex.A-1 suit

promissory note is brought into existence. She would further contend

that the trial Court failed to appreciate the evidence on record in proper

manner and came to wrong conclusion and decreed the suit.

12. Per contra, the learned counsel for respondent would contend

that on appreciation of the entire material on record, the trial Court

rightly decreed the suit and there is no need to interfere with the finding

given by the trial Court.

13. Now, the points for determination are:

(1) Whether the trial Court is justified in holding that the

plaintiff proved the execution of suit promissory note and the suit

promissory note is true, valid and binding on the defendant ?

(2) Whether the judgment and decree passed by the trial Court

needs any interference ? and

(3) To what extent ?

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14. Point No.1:- Whether the trial Court is justified in holding

that the plaintiff proved the execution of suit promissory note and the

suit promissory note is true, valid and binding on the defendant ?

In order to prove his case, the plaintiff examined the 1st attestor

in Ex.A-1 as P.W.2. His evidence clearly proves about the borrowing of

Rs.3,00,000/- by the defendant from the plaintiff and so also the

execution of Ex.A-1 promissory note dated 11-01-2002 in favour of the

plaintiff. There was a clear admission by the defendant in his evidence

in cross-examination itself that he has no enmity with P.W.2 and so

also another attestor and so also the scribe. It is not the case of the

defendant that he is having enmity with P.W.2, due to that he deposed

falsehood against the defendant. To discharge his liability, furthermore

he examined the scribe of Ex.A-1 promissory note as P.W.3. His

evidence also clearly proves about the borrowing of Rs.3,00,000/- by

the defendant from the plaintiff and so also the execution of Ex.A-1

promissory note dated 11-01-2002 in favour of the plaintiff. It is not

the case of the defendant that he is having enmity with P.W.3, due to

that he deposed falsehood against the defendant. In cross-examination,

the evidence of P.Ws.2 and 3 is not at all disturbed on the material

aspects of the case. The evidence of P.W.1 is well corroborated by the

evidence of P.Ws.2 and 3.

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15. The defendant, to prove his defence, examined himself as

D.W.1. He deposed in his evidence that he never executed any

promissory note in favour of the plaintiff and the alleged promissory

note is a forged document and no consideration was passed under

Ex.A-1 promissory note. In cross-examination when elicited, he clearly

admits that he has no acquaintance with the attestors and scribe of

Ex.A-1 and he does not have enmity with them. There was a clear

admission in his evidence in cross-examination itself that a suit in

O.S.No.8 of 2004 was filed in Additional Senior Civil Judge’s Court,

Srikakulam, for recovery of money against him and the said suit was

decreed for an amount of Rs.2,25,000/- and in the said case, the

plaintiff is the State Bank of Hyderabad and final decree in the said suit

is also pending before the competent Court. Another admission made

by him in his evidence in cross-examination is that O.S.No.18 of 2002

was filed for recovery of Rs.1,00,000/- by Lakshmi Manikya Chits and

Finance against him on the file of Additional Senior Civil Judge’s Court,

Srikakulam and the same is pending. Another admission made by him

in his evidence in cross-examination is that another suit in O.S.No.130

of 2004 is also filed against him on the file of Additional Senior Civil

Judge’s Court, Srikakulam, for recovery of Rs.25,000/- and it is

decreed. The above admissions of D.W.1 clearly go to show that he is

in the habit of borrowing monies. As stated supra, in cross2024:APHC:9

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examination nothing was elicited from P.Ws.1 to 3 to discredit the

testimony of P.Ws.1 to 3.

16. In civil cases, rival contentions and rival evidence will have to

be considered, assessed, evaluated and weighed to conclude whether

the burden on the plaintiff has been discharged. In the case of

R. Puthunainar Alhithan v. P.H. Pandian1, the apex Court held as

follows:

“An inference from the proved facts must be so probable that if the

Court believes, from the proved facts, that the facts do exist, it must be

held that the fact has been proved. The inference of proof of that fact

could be drawn from the given objective, direct or circumstantial”.

17. To prove the passing of consideration from the plaintiff, the

plaintiff made an attempt to examine the scribe of Ex.A-1 promissory

note as P.W.3 and also examined one of the attestors in Ex.A-1

promissory note as P.W.2. P.Ws.2 and 3 testified about the passing of

consideration of Rs.3,00,000/- from the plaintiff to the defendant under

Ex.A-1 promissory note. It is not the case of the defendant that he is

having enmity with P.Ws.2 and 3, due to that they deposed falsehood

against him. I see no reason to disbelieve the evidence of P.Ws.2 and 3.

P.W.1 is the plaintiff. His evidence also supports the case of plaintiff.

1 1996 (3) SCC 624

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18. In the case of Pottem Subbarayudu v. Kothapalli

Gangulu Naidu2, the composite High Court of Andhra Pradesh at

Hyderabad held as follows:

“There can be no straightjacket formula for the appreciation of oral

evidence of the witnesses. The credibility of the witness is the

paramount consideration for the Court. After passing the three legal

tests viz, relevancy, admissibility, and competence of the witness, while

considering the credibility of the witness, the Court has to consider

various parameters so as to appreciate the oral evidence on the point

by testing the same on the touch stone of two important yardsticks viz.,

the probabilities and surrounding circumstances among various other

parameters. Even when no rebuttal is adduced by the adversary, the

ocular testimony of the witnesses examined on the side of the party on

whom the burden lies, cannot implicitly be relied upon without testing

the same with reference to the probabilities and surrounding

circumstances. The judgments of the Apex court in Govinda v. Champa

Bai (AIR 1965 SC 354) and Chaturbhuj Pande v. Collector, Raigarh,

would lend support to my above view”.

19. In the case of Pratap Singh v. Rajinder Singh3, the apex

Court held as follows:

 “… … … There is no presumption, either in this country or anywhere else,

that a witness, deposing on oath in the witness box, is untruthful unless

he is shown to be, indubitably, speaking the truth. On the other hand,

the ordinary presumption is that a witness deposing solemnly on oath

before a judicial tribunal is a witness of truth unless the contrary is

shown.

 11. It is not required by our law of evidence that a witness must

be proved to be a perjurer before his evidence is discarded. It may be

2 2000(5) ALT 759

3AIR 1975 SC 1045

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enough if his evidence appears to be quite improbable or to spring from

such tainted or biased or dubious a source as to be unsafe to be acted

upon without corroboration from evidence other than that of the witness

himself. … … …”

20. In a civil case, the preponderance of probabilities constitutes

a sufficient ground for decision if the facts and circumstances are such

that no reasonable man would draw a particular inference from them

or if the degree of probability in the case is such that as to include any

hypothesis besides the one to be proved than the party who relies on

a particular theory cannot be said to have been discharged the onus of

proof of establishing that theory. But if the evidence is strongly

prepondering in favour of any other two theories set up, the Court is

entitled to act on it.

21. The defendant is unable to show any reason or circumstance

to disbelieve the evidence of P.Ws.1 to 3 regarding the execution of suit

promissory note by the defendant and passing of consideration under

Ex.A-1. The evidence of P.Ws.1 to 3 is consistent, cogent with regard to

execution of suit promissory note and so also passing of consideration

under Ex.A-1. Though P.Ws.1 to 3 were subjected to crossexamination, nothing was elicited from them to discredit their evidence.

The plaintiff has no reason to fabricate the suit promissory note.

As stated supra, it is not the case of the defendant that he is having

enmity with the plaintiff and so also P.Ws.2 and 3. In the present case,

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the presumption has not been rebutted by the defendant even by the

preponderance of probabilities. Ex.A-1 promissory note shows that the

plaintiff lent the amount of Rs.3,00,000/- to the defendant under

Ex.A-1 promissory note.

22. The defendant failed to prove the contentions regarding

non-payment of consideration by leading cogent evidence.

The defendant was not successful in showing the improbability of the

consideration. The defence taken by the defendant is not substantiated.

23. After careful consideration, the trial Court had adequately

appreciated the evidence and there is no reason for this Court to arrive

at a different conclusion than the one arrived at by the trial Court.

I believe the findings arrived at by the trial Court are correct and

no justifiable reasons have been shown by the appellant/defendant for

arriving at a different conclusion. For the foregoing reasons, I do not

find any illegality in the said judgment and decree passed by the trial

Court and it requires no interference.

24. Point No.2: Whether the judgment and decree passed by

the trial Court needs any interference ?

In view of my finding on point No.1, I do not find any illegality in

the judgment and decree passed by the trial Court and the judgment

and decree passed by the trail Court is perfectly sustainable under law

and it requires no interference.

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25. Point No.3:- To what extent ?

In the result, the appeal suit is dismissed confirming the judgment

and decree, dated 30-3-2007, in O.S.No.5 of 2005 passed by the learned

Principal Senior Civil Judge, Srikakulam. Pending applications, if any,

shall stand closed. No costs.

_____________________________

V. GOPALA KRISHNA RAO, J.

02nd January, 2024.

Ak

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11 VGKR, J.

as_574_2007

HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO

Appeal Suit No.574 of 2007

02nd January, 2024.

(Ak)

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