Rajagopal vs A.K. Chinnu

V. Bakthavatsalu, J.—The Plaintiff is the Appellant. The Plaintiff filed a suit for recovery of the amount based on promissory note. It is the

case of the plaintiff that the defendant and one Sengamuthu borrowed a sum of Rs.4.500/- from the plaintiff on 4.10.75 and executed a promissory

note and that in spite of repeated reminders, the defendant has not paid the amount. The defendant contended in the written statement that

Sengamuthu borrowed a sum of Rs.7,000/-from Ramasamy, plaintiffs cousin and that the amount was paid in the presence of the defendant and

that Sengamuthu was having a lorry MDN 5041 and that the lorry met with an accident 10 days prior to the borrowing of Rs.7,000/- and that only

to effect the repairs for the lorry Sengamuthu borrowed the amount promising to repay the same with interest of Rs.500/- within 15 days and that

Sengamuthu executed a written document on stamp paper in favour of Ramasamy and after effecting repairs Sengamuthu was not willing to

dispose of the lorry and that he was postponing the payment of Rs.7,000/- due to Ramasamy and that subsequently Sengamuthu paid Rs. 2,500/-

in the presence of the defendant in June, 1975, and that the defendant was asked by Ramasamy to take Sengamuthu and accordingly on

4.10.1975, the defendant went to the firewood depot of the plaintiff and that Sengamuthu was also present there and that Ramasamy demanded

execution of promissory note for Rs.4,500/- from the said Sengamuthu and that they also demanded the defendant to join in the execution of the

promissory note as surety for which the defendant refused and that Ramasamy and plaintiff threatened the defendant to detain him under ""MISA

and that out of fear, the defendant put his signature in the suit promissory note and that when the witness Kutti Gounder asked the plaintiff as to

why the defendant was compelled, the plaintiff told them that no action will be taken against the defendant and that only to ensure the payment by

Sengamuthu the promissory note has been obtained from the defendant and that the plaintiff also informed that if the promissory note is in his name

Sengamuthu will have a fear to pay the amount promptly and that therefore the suit promissory note is not supported by consideration and that it is

not binding on the defendant and that the defendant is a debtor as per Act 13 of 80. The trial Court has framed the following issues: -

(i) Whether the suit promissory note was obtained from the defendant under coercion?

(ii) Whether the suit promissory note is not supported by consideration?

(iii) Whether the defendant is entitled to the benefits of Tamil Nadu Act 13 of 80?

On Issue Nos. 1 and 2 the trial Court has held that the suit promissory note is supported by full consideration. On Issue No.3, the trial Court has

held that the defendant is not entitled to the benefits of Act 13 of 80. Aggrieved on the said judgment and decree, the defendant filed the appeal.

The Appellate Court has also concurred with the finding of the Trial Court that the defendant is not entitled to benefit of Act 13 of 80. But, on the

issue whether the suit promissory note is not supported by consideration, the Appellate Court relying upon Ex.B.3, statement alleged to have been

given by the plaintiff before Tahsildar has held that the suit promissory note is not supported by consideration. Aggrieved on the said judgment and

decree, the plaintiff has filed this appeal.

The following questions are formulated as points for determination in this Second Appeal.

(i) Whether the legal presumption u/s 118 of the Negotiable Instruments Act is applicable in favour of the plaintiff, when the defendant has admitted

the due execution of ExA-1?.

(ii) Whether the alleged recording under Ex.B-3 by the Special Tahsildar in respect of simple money debt under Act 13 of 80 is non est and void

ab-initio and as no evidentiary value?

(iii) Whether Section 145of the Evidence Act permits the admissibility of Ex.B-3?

(iv) Whether the extortion alleged against the plaintiff is proved by Ex.B-3?

Points:- (i) It is alleged in the plaint that the defendant borrowed a sum of Rs.4,500/- from the plaintiff. The plaintiff, P.W.1, has stated in his

evidence that he paid the amount to defendant and that he executed the suit promissory note. P.W.2 is scribe of Ex.A-1. He has stated that the

defendant executed the promissory note. D.W.1, the defendant has also stated that he has signed in Ex.A-1. But he would say that he did not

receive any consideration. D.W.2, has stated that he and D.W.1 executed Ex.A-1. The Appellate Court has framed the following point for

determination, ""Whether the suit promissory note is not supported by consideration."" The case of the plaintiff that the defendant and D.W.2

executed Ex.A-1 has been accepted by the Trial Court.

(ii) When once the execution of the promissory note is proved, the burden is upon the defendant to establish that it is not supported by

consideration. Both D.Ws. 1 and 2 have stated that they did not receive any consideration for Ex.A-1. In the written statement, the defendant has

narrated the circumstances under which the suit promissory note came to be executed. It is alleged that D.W.2, Sengamuthu borrowed Rs.7,000/-

from Ramasamy, the plaintiffs cousin and that the amount was paid in his presence and that to effect repairs to the lorry, D.W.2 borrowed the

amount and that after selling the lorry D.W.2 executed the written statement in favour of Ramasamy and that after effecting repairs D.W.2 was not

willing to dispose of the lorry and that he was postponing the payment of Rs.7,000/- due to Ramasamy and that subsequently, he paid Rs.2,500/-

in his presence and that thereafter the defendant was asked by Ramasamy to take D.W.2 and that on 4.10.75 he went to the fire wood depot of

plaintiff and that the plaintiff and Ramasamy demanded execution of the promissory note for Rs.4,500/-and that they demanded the defendant to

join the execution of the promissory note as surety and that when the defendant refused to execute the promissory note, the plaintiff threatened the

defendant to detain him under ""MISA"" and that out of fear the defendant put his signature in the promissory note. The trial Court did not accept the

evidence of D.W.1 and D.W.2. The trial Court has held that the suit promissory note was not executed under coercion. The trial Court has held

that the suit promissory note is supported by consideration. The lower Appellate Court, relying upon the proceedings initiated before Tahsildar

under Act 13 of 80 and the statement given by the plaintiff before Tahsildar under Ex.B-3 has held that the suit promissory note is not supported

by consideration. It is seen from Ex.B-2 the order passed by Tahsildar that the defendant filed application for discharge of debt and accordingly,

the Tahsildar has passed an order holding that the loan is discharged. Ex.B-3 is the certified copy of the statement alleged to have been given by

the plaintiff before the Tahsildar where under he has stated that the defendant brought D.W.2 to the house of his cousin and executed the

promissory note for Rs.15,000/- and that of his cousin Ramasamy insisted on payment of the amount, they executed the promissory note in his

favour and that he did not pay any amount. The lower Appellate Court has placed reliance on the above statement for holding that the suit

promissory note is not supported by consideration. The plaintiff contended before the trial Court that he did not give any such statement before the

Tahsildar and that he was asked to sign in a blank paper by Tahsildar and that his deposition was fabricated. The above contention raised on

behalf of the plaintiff before the Court was not accepted by the trial Court. In paragraph 6 of the Judgment, the trial Court has stated thus:-

In my opinion, there is no substance in the contention raised by the plaintiffs counsel in view of Ex.B-3 and also as per the provisions of the Indian

Evidence Act.

It is, thus, clear that the contentions of the plaintiff that he did not make any statement before the Tahsildar and that he was asked to sign in blank

paper were not accepted by the trial Court. Therefore, it is to be held that the plaintiff participated in the proceedings initiated under Act 13 of 80

and that he gave the statement before the Tahsildar under Ex.B-3. It is contended on behalf of the appellant/plaintiff that the date of the promissory

note is not mentioned in the above statement. D.W.1, the defendant has stated in his evidence that he gave petition before Tahsildar. The

proceedings covered under Ex.B-2 & B-3 will clearly show that only with regard to suit promissory note the proceedings were initiated under Act

13 of 80.

This takes us to the next crucial question, whether Ex.B-3 can be relied upon the substantiate the case of the defendant. It is admitted by both

the parties that the Tahsildar has no jurisdiction to pass the order of discharge regarding promissory note. In support of the same, the plaintiff''s

counsel relied upon a decision reported in (1981) II M.LJ. 1 before the trial Court. It is seen from the Judgment of the trial Court that the plaintiffs

counsel relied upon two decisions reported in AIR 1933 Mad 575 (Sankappa Raj and others v. Keraga Pujary and others) and Sudhindra Nath

Vs. The State, . In Sudhindra Nath Vs. The State, it is held that the deposition recorded by an unauthorised person is not admissible and could not

be used for retrial before a competent Court u/s 33of the Indian Evidence Act. In AIR 1933 Mad 575 (Supra) it is held that the proceeding before

the Judge or a Magistrate who has no pecuniary jurisdiction is not a judicial proceeding and evidence of witness given in such a proceeding cannot

be used in retrial before a competent Court. Before, the trial Court, it was contended by the defendant that admission made by witness could be

used for contradicting the witness u/s 145of Evidence Act. In support of the same, the defendant counsel relied upon three decisions reported in

The Punjab University, Chandigarh and Others Vs. Prem Chand Handa, Kr. Wasiq Ali Vs. The Director of Consolidation, Agra and Others,

before trial Court. But the trial Court did not consider the above decisions. On the other hand, the trial Court had held, that the above decisions do

not help the defendant in any way. The finding of the trial Court with regard to Ex.B-3 statement are not accepted by the lower Appellate Court.

The lower Appellate Court has held that Sudhindra Nath Vs. The State, the question whether deposition can be used u/s 145of the Evidence Act

to contradict its maker in subsequent proceedings was not decided therein and that Section 145 of the Evidence Act does not lay down that the

writing to be used for cross examination of its maker must have been recorded by a person having jurisdiction to reduce the statement into writing.

It is contended on behalf of the respondent that even though the Tahsildar has no jurisdiction to give the discharge order regarding promissory

note, the statement recorded by him can be used for contradicting its maker u/s 145of the Evidence Act. In support of the same, learned counsel

for the respondent relies upon a decision reported in Ramkishun Sao and Others Vs. Emperor, wherein it is held thus:-.

Previous statement of a witness reduced to writing can be used in cross-examination u/s 145but the section does not lay down that the writing

which is to be used for the purpose of cross-examination must be by a person having jurisdiction to reduce that statement to writing.

Therefore, even though the previous statements of a witness recorded by a Special Magistrate under the Special Criminal Courts Ordinance 2(2)

of 1942, must on the declaration of that Ordinance as illegal be taken to have been recorded by a Magistrate who had no jurisdiction to record the

same, the statements can still be used u/s 145for the purpose of cross-examining the witness.

It is thus, clear from the above decision that the statement recorded by authorities can be used in cross-examination u/s 145of the Evidence Act

even though, the authorities who recorded the statement had no jurisdiction. In view of the above decision, the finding of the lower Appellate Court

that the Statement Ex. B-3 can be used for contradicting its maker u/s 145of the Evidence Act appears to be correct. Relying upon Ex.B-3 and

evidence adduced by the defendant, the lower Appellate Court has held the circumstances under which Ex.A-1 came to be executed as contended

by D.W.2 is true. If, the pleadings and evidence of D.W.1 & 2 is considered along with Ex.B-3 it can be reasonably concluded that Ex.A-1 is not

supported by consideration. As already stated, both the Courts have held that the plaintiff gave statement before Tahsildar. If really the plaintiff

paid the amount to defendant under Ex.A-1, he would not have stated in Ex.B-3 that he did not pay Rs.4,500/- to the defendant. The trial Court

has not properly appreciated the distinction between admissibility of evidence u/s 33and contradicting the evidence of witness u/s 145of the

Evidence Act. For the reasons stated above, I hold that the finding of the lower Appellate Court that the suit I promissory note is not supported by

consideration, has to be upheld. I find that there are no merits in this appeal. I accept the finding of the first Appellate Court and hold that the suit

promissory note is not supported by consideration. In the result, this Second Appeal is dismissed with costs. The judgment and decree of the

lower Appellate Court are confirmed.