R. Balaraman vs P. Muniswamy

Ram Mohan Reddy

Appellant instituted O.S. No. 15/2009 before the Prl. Civil Judge (Jr. Dn), K.G.F., for recovery of Rs. 30,880/- with interest at 9% p.a. on the basis of a promissory note and consideration receipt. The defendant, on notice, resisted the suit by filing written statement interalia stating that he had money transaction with M.Y. Rajashekar and executed five On Demand Promissory Notes and Consideration Receipts in the possession of the said M.Y. Rajashekar, who having received the amount in entirity under the promissory notes, returned three promissory notes, stating that two promissory notes were misplaced. According to the defendant, misunderstanding between himself and M.Y. Rajashekar a friend of the plaintiff took undue advantage of pronotes and by fabricating the same instituting the suit.

The trial Court in the premise of pleadings of parties framed issues, whereafterwards, the plaintiff was examined as P.W.1 and two other witnesses as P.W.2 and P.W.3 and marked documents Exs. P.1 to P.4 and Ex. C.1, while the defendant was examined as D.W.1 and did not produce documents.

The trial Court having regard to the material on record declined to accept the plea of the defendant that it was a design of the plaintiff by making use of the promissory notes and consideration receipts executed by the defendant in favour of M.Y. Rajashekar, in the absence of the said M.Y. Rajashekar being examined, coupled with the admission of D.W.1 in cross-examination that the promissory notes were executed for having received Rs. 10,000/- in the year 2006 from M.Y. Rajashekar. The trial Court further observed that though the promissory note does not require attestation by witnesses, nevertheless, eschewed the testimony of P.W.2 attestor to the Promissory Note and Consideration Receipt-Exs. P.1 and P.2, respectively, since attestation was not required for a negotiable instrument, and that there being no material alternation in the writing of the figures representing the amount in Ex. P.1 as alleged, i.e., figure ''3'' altered as ''8'' and prefixed with figure 1, so as to claim Rs. 18,000/- the principal sum, while infact ought to have been Rs. 3,000/-, coupled with the defendant''s admission of execution of Exs. P.1 and P.2, by reason of which, the burden shifted on to the defendant to disprove its contents despite vacillatory statements of P.W.1 in the examination-in-chief and cross-examination over the principal amount paid to the defendant, accepted the testimony of P.W.3, as corroborating the evidence of P.W.1 to answer the issues in favour of the plaintiff and decree the suit by judgment and decree dated 24.4.2009.

The defendant filed R.A. No. 36/2009 before the Civil Judge (Sr. Dn) and Prl. JMFC, K.G.F., and thereafter, made over to the Fast Track Court for hearing, whence on a reappreciation of the material on record and the evidence, both oral and documentary, the lower Appellate Court observed that the trial Court failed to consider the relevant material relating to material alteration in Exs. P.1 and P.2 rendering the negotiable instrument void, as also the vacillatory statements made by P.W.2 and the failure to examine the scribe of Exs. P.1 and P.2, to record findings in the negative over the issues framed by the trial Court and by judgment and decree dated 19.7.2010 allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit with costs. Hence, this second appeal.

Heard the learned counsel for the appellant, perused the pleadings and examined the judgment and decree of the courts below and the evidence, both oral and documentary, since records were called for.

The first submission of the learned counsel for the appellant that the appellant was not served with the notice of the proceeding before the lower Appellate Court is without merit. The notice issued by the Additional Civil Judge (Sr. Dn) and JMFC, K.G.F., on 9.6.2009 was received by the appellant arraigned as respondent therein by affixing his signature on 25.6.2009 on the said notice. The order sheet dated 6.7.2009, discloses that the respondent when called out was absent and was placed exparte. On 15.9.2009 by order dated 27.8.2009 of the Prl. District Judge, Kolar, the file was transferred to the Fast Track Court at K.G.F.

The submission of the learned counsel that discrepancy in the testimony of P.W.2 over the principal amount made over to the defendant is very minor and ought to be over looked is unacceptable. P.W.2 said to be an attesting witness to Exs. P.1 and P.2, filed an affidavit in lieu of recording examination-in-chief stating that Rs. 18,000/- was received by the defendant on 20.3.2006, however, in the cross-examination, admitted that Rs. 15,000/- was received by the defendant in the evening. Thus, P.W.2, who claimed to be present at the time of execution of Exs. P.1 and P.2 by the defendant having made vacillatory statements, the defendant''s claim that the plaintiff did not pay Rs. 18,000/- when made more probable, and as P.W.2''s version was not in the direction of corroborating the evidence of P.W.1, I am afraid, cannot be said to be a mere abrasion not touching upon the merit of the claim of the plaintiff that Rs. 18,000/- was paid to the defendant on 20.3.2006.

The next submission of the learned counsel that the date and place as written in Exs. P.1 and P.2, though apparently not in different hand writing and ink, in comparison with other writings in the promissory note and hence not material alteration, too, is unacceptable. The testimony of the plaintiff''s witness is that Exs. P.1 and P.2 were written by K. Subramani, who is neither examined nor reason for his non-examination. A bare perusal of the writing recording the place and date in Exs. P.1 and P.2 as "KGF and 20.3.2006", to the naked eye, is different from the hand writing in the other portions of Exs. P.1 and P.2. As to who wrote in the blank spaces for recording the place and date in Exs. P.1 and P.2 are not forthcoming from the plaintiff''s witnesses as observed by the lower Appellate Court. It is true that under Sec. 118(b) of the Negotiable Instrument Act, 1981, a presumption arises over the date that is made or drawn in every negotiable instrument unless and until the contrary is proved. Keeping in mind the assertion of the defendant that the two promissory notes were executed in favour of M.Y. Rajashekar and not in favour of the plaintiff, coupled with the difference in hand writing in the recording of the place, date and other particulars in Exs. P.1 and P.2 and in the absence of material evidence of its scribe, it cannot, but, be said that the lower Appellate Court was justified in concluding that the material alteration was fatal to the case of the plaintiff, which the trial Court failed to address. Yet again, the lower Appellate Court observed that the figures Rs. 18,000/- recorded in ink against the blank block showing the principal sum in Ex. P.1-Promissory Note, is altered as is visible to the naked eye, from the figure 300 to 1800. There is no explanation forthcoming from the plaintiff as to why these figures are not in the same ink and the same hand writing of the scribe K. Subramani, leading to a serious doubt over the legality of the promissory note-Ex. P.1. The lower Appellate Court having re-assessed the material on record and the evidence, both oral and documentary, in my considered opinion, arrived at a just conclusion.

No substantial question of law arises for decision making. Appeal is accordingly dismissed.