(Prayer:Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 12.04.2000 made in A.S.No.30 of 1999 on the file of the Principal District Court, Karur, reversing the Judgment and decree dated 08.12.1997, made in O.S.No.234 of 1996 on the file of the Subordinate Court, Kulithalai.)
1. This Second Appeal has been filed against the judgment and decree dated 12.04.2000 made in A.S.No.30 of 1999 on the file of the Principal District Court, Karur, reversing the Judgment and decree dated 08.12.1997, made in O.S.No.234 of 1996 on the file of the Subordinate Court, Kulithalai.
2. The appellant is the plaintiff, who succeeded in the Trial Court, but lost in the first appellate Court. The respondent is the defendant.
3. Facts of the case:-
(i) The appellant filed suit in O.S.No.234 of 1996, before the Subordinate Court, Kulithalai, against the respondent, for recovery of a sum of Rs.34,960/-, being the principal sum of Rs.20,000/- together with interest based on the promissory note (Ex.A.1), dated 06.03.1990 executed by the respondent. The respondent borrowed money from the appellant for the purpose of his business and on 26.12.1992 and 22.06.1993, paid Rs.50/- each to the appellant and made endorsements in the promissory note, dated 06.03.1990. The respondent subsequently, did not pay the amount. Therefore, the appellant issued a notice (Ex.A.4) dated 11.06.1996 to the respondent. In spite of repeated demands and reminders, the respondent has not paid the amount. Hence, the appellant has filed the suit for the relief stated above together with interest.
(ii) The respondent filed written statement and denying borrowal of the amount. According to the respondent, he was having business transaction with the father of the appellant and for that purpose, he executed blank promissory note and handed over the same to the father of the appellant. He did not know the appellant and he did not borrow any money from the appellant and also did not pay Rs.50/- each on two occasions and did not make any endorsement. After receipt of notice, dated 11.06.1996, he went and met the appellant's father, who informed the respondent that, the appellant by mistake issued the notice and he will take care of the issue and therefore, the respondent did not send any reply.
(iii) The respondent further stated that in the business transaction, the respondent executed a blank promissory note to the father of the appellant and after settlement of the accounts, the respondent requested the father of the appellant to return the unfilled blank promissory note. The father of the appellant informed the respondent that he will trace out the promissory note and return it to the respondent. Believing the same, the respondent did not get back the promissory note. Only for the purpose of filing of the suit, the appellant has forged the promissory note and filed the suit with false claim. The endorsements to payment dated 26.12.1992 and 22.06.1993 on the suit promissory note are also forged ones. The said endorsements are fabricated for the purpose of filing of this suit and prayed for dismissal of the suit.
(iv) Based on the pleadings, the learned Subordinate Judge, Kulithalai, framed necessary issues.
(v) Before the Trial Court, the appellant examined himself as P.W.1 and four witnesses to the promissory note and two endorsements, were examined as P.Ws.2 to 5 and marked four documents as Exs.A.1 to A.4. On behalf of the respondent, the respondent examined himself as D.W.1 and he did not mark any document.
(vi) The learned Subordinate Judge, Kulithalai, considering the pleadings, oral and documentary evidence adduced by the parties and arguments of the learned counsel appearing for the parties, decreed the suit, holding that the respondent borrowed money and executed promissory note and also made endorsements and subsequently, did not pay the amounts.
(vii) Against the said judgment and decree, dated 08.12.1997, the respondent has filed A.S.No.30 of 1999 before the Principal District Court, Karur.
(viii) The learned Principal District Judge, Karur, framed necessary points for consideration.
(ix) The learned Principal District Judge considering the pleadings, oral and documentary evidence, judgment of the Trial Court and arguments of the learned counsel for the parties, by judgment and decree, dated 12.04.2000, allowed the appeal holding that Ex.A.1 Promissory Note was a forged document and it is not supported by consideration and also held that Exs.A.2 and A.3 are also forged documents. The learned Principal District Judge also compared the signature in Exs.A.1, A.2 and A.3 and admitted signature in the written statement and held that there are variations in the disputed signature and the admitted signature.
4. Against the said judgment and decree, dated 12.04.2000, the present second appeal is filed.
5. At the time of admitting the second appeal, this Court framed the following substantial questions of law:
a) Whether the lower appellate Court is right in law in wrongly casting the burden upon the plaintiff to prove that pronote was supported by consideration thus completely ignoring the presumption laid down under Section 118 of the Negotiable Instruments Act?
b) Whether the lower appellate Court is right in law in failing to note that once the execution of the pronote is admitted the presumption under Section 118 of the Negotiable Instruments Act is that, unless the contrary is proved the presumption shall be made that every negotiable instrument was drawn for consideration?
c) Whether the lower appellate Court is right in law in comparing the defendant's admitted signature in the written statement with that of the signature in Ex.A.2 and A.3 in disregard of the specific provisions contained in the Section 73 of the Indian Evidence Act?
6. The learned counsel for the appellant submitted that the learned Principal District Judge, Karur, erred in shifting the burden of proof on the appellant to prove that the promissory note was supported by consideration. The learned Principal District Judge failed to consider that once the execution of the promissory note is admitted as per Section 118 of the Negotiable Instruments Act, it is presumed that the promissory note is supported by consideration and it is for the respondent to rebut the said presumption. The respondent admitted his signature in Ex.A.1. In addition to that, the appellant and the witnesses to the promissory note and endorsements, deposed to prove that the appellant paid the consideration and subsequently, the respondent made endorsements, Exs.A.2 and A.3 after paying Rs.50/- each. The learned Principal District Judge erred in allowing the appeal taking into consideration the minor discrepancies in the evidence of P.W.1 to P.W.5 and prayed for allowing the second appeal.
7. Notice was served on the respondent on 04.02.2008 and this Court, vide order dated 07.11.2016 directed the Registry to verify whether any vakalath was filed on behalf of the respondent or not. The Registry, on verification, has reported that there is no vakalath on behalf of the respondent. Today, the respondent's name is printed in the cause list, but there is no representation on behalf of the respondent either in person or through pleader. Hence, this Court is constrained to pass orders on merits based on the materials on record and considering the arguments of the learned counsel for the appellant.
8. I have carefully perused all the materials available on record and the judgment and decree of the Courts below and considered the argument advanced by the learned counsel for appellant.
9. The respondent has admitted his signature in Ex.A.1 Promissory Note. The appellant has deposed as P.W.1 and examined witnesses P.Ws.2 to 5, who were the witnesses to promissory note and endorsements made by the respondent. The respondent, apart from deposing as D.W.1, did not examine any independent witness to substantiate his case that due to business transaction with the father of the appellant, he had executed Ex.A.1 blank promissory note and settled entire amounts due to his father in the business transaction and that the suit promissory note was fabricated and forged, as he stopped from doing business with the father of the appellant. The learned Principal District Judge, failed to consider that the respondent admitted his signature in Ex.A.1 and erred in law in holding that Ex.A.1 is a forged document. As per Section 20 of the Negotiable Instruments Act, even if a blank promissory note or incomplete promissory note was handed over to a person, the holder of the said promissory note can fill up the said promissory note. Further, the learned Principal District Judge failed to consider the presumption under Section 118 of the Negotiable Instruments Act, since the respondent has admitted his signature in Ex.A.1. P.Ws.2 and 3, who witnessed the execution of Ex.A.1, have stated that consideration was paid to the respondent, but they did not know how much amount was paid to him. This cannot be the reason for rejecting Exs.A.1 to A.3. The learned Subordinate Judge compared the disputed signature of the respondent with the admitted signature as per power conferred under Section 73 of the Indian Evidence Act and held that there is no discrepancy between the disputed signature and admitted signature. The learned Principal District Judge, Karur, erred in not giving any reason for not accepting this finding.
10. For the above reasons, I hold that the learned Principal District Judge, Karur, erred in law in allowing the appeal. In the circumstances, the substantial questions of law are answered in favour of the appellant.
11. In the result, the second appeal is allowed. The judgment and decree dated 12.04.2000, made in A.S.No.30 of 1999, is set aside and the judgment and decree, dated 12.04.2000, made in O.S.No.234 of 1996, is confirmed. No costs.