illuru Subbanna Vs. Gokulu Chinna Sanjeeva Rayudu - Court Judgment

1. This appeal has beenpreferred against the Judgment and decree dated 8-6-1989 passed in AS No. 18 of 1988 on the file of the Sub-Court, Proddutur, reversing the Judgment and decree dated 23-11-1987 passed in OS No.20S of 1987 on the file of the Principal District Munsif, Proddutur.

2. The appellant herein is the defendant and the respondent herein is the plaintiff in the said suit OS No.208 of 1987. For the sake of convenience, the parties are being referred to as they were arrayed in the suit.

3. The respondent-plaintiff filed the said suit for recovery of a sum of Rs.8,277.60 being the principal and interest due on pronote dated 15-5-1984 said to have been executed by the defendant in favour of the plaintiff for Rs.6,000/- repayable with interest at 24 per cent per annum but claimed at 12 per cent per annum. The plaintiff's case is that on 15-5-1984 the defendant borrowed a sum of Rs .6,000/- from the plaintiff for his family expenses and executed the suit pronote in his favour at Korrapadu village agreeing to repay the said amount with interest at 24 per cent per annum and that inspite of demand notice dated 6-5-1987, the defendant did not repay the amount- Hence, the suit.

4. The defendant resisting the claim of the plaintiff filed his written statement. He disputed the receipt of Rs.6,000/- and execution of the suit pronote. He further pleaded that he does not know the plaintiff. His positive plea is that the suit pronote could have come into existence under the following circumstances. In the village Kottala there was a faction between Donthireddy Lakshmi Reddy and Pedda Konda Reddy. The defendant belonged to the group of Pedda Konda Reddy in the said faction Donlhireddy Lakshmi Reddy wasmurdered on 15-8-1985. On 18-8-1985 while the defendant was answering calls of nature at Machanapalli, he was kidnapped by the co-brother of the deceased Lakshmi Reddy and some others, that he was taken to Kotha Kamanur village and detained unlawfully in a room belonging to Varadarajul Reddy and his signatures on three blank white papers beneath the stamps were obtained cocrcively and on threats and the suit pronote might have been fabricated on the said blank white papers. It is also the case of the defendant that in that connection he preferred a complaint in the police station at Rajupalem and Crime No.36 of 1985 was registered against the followers of the deceased Lakshmi Reddy and ultimately the charge-sheet was filed in CC No.83 of 1985 and after trial the accused were convicted for the said offence and sentenced to pay a fine of Rs. 1,000/- each. It is further pleaded that the plaintiff is a factionist belonging to the group of Lakshmi Reddy and the plaintiff has no capacity to lend the amount that the plaintiff and his brother have indebted to others and in a suit filed against the plaintiffs family members, they have taken a plea that they are small farmers and that suit was also dismissed on that ground. The attestors and the scribe of the suit pronote are followers of Donthireddy Narayana Reddy who is the paternal uncle's son of the deceased Lakshmi Reddy. The defendant also pleaded that he did not receive the demand notice said to have been issued and that he never refused to receive the said notice.

5. On the basis of the pleadings, the trial Court settled the following issues for trial:

(i) Whether the suit pronote is fabricated and devoid of consideration?

(ii) Whether the suit pronote came into existence with ante-date under the circumstances as contended by the defendant in his written statement?

(iii) To what relief?

During the course of trial, PWs. 1 to 3 were examined and Exs.Al to A3 were marked on behalf of the plaintiff. The plaintiff got himself examined as PW1. The defendant got himself examined as DW1 and marked Exs.Bl to B4 on his behalf. On a consideration of the oral and documentary evidence placed before it, the trial Court believed the version set up by the defendant in his written statement and held that the suit pronote is fabricated and devoid of consideration and consequently dismissed the suit without costs.

6. In appeal AS No. 18 of 1988 preferred by the plaintiff, the learned Subordinate Judge, Proddutur, reversed the said findings of the trial Court and held that the suit pronote is true and supported by consideration and consequently decreed the suit after setting aside the Judgment and decree of the trial Court. Aggrieved of that Judgment and decree of the lower appellate Court, the defendant has come up with this appeal.

7. Heard the learned Counsel on either side. The learned Counsel for the appellant took me through the impugned Judgment of the lower appellate Court and also that of the trial Court and the evidence on record.

8. The learned Counsel for the appellant submits that the lower appellate Court was simply carried away by the interested testimony of PWs. 1 to 3 with regard to the execution of the suit pronote but failed to consider the circumstances pleaded by the defendant under which his signatures were obtained on blank white papers and also beneath the stamps, that the lower appellate Court failed to consider the effect of the finding of the Criminal Court in CC No.83 of 1985 on the file of the II Additional Munsif Magistrate Court, Proddutur, wherein it has been categorically held that the defendant herein (complainant in CC No.83 of 1985) was abducted on 18-8-1985 and his signatures wereobtained by coercion on blank white papers with stamps affixed thereon and that the accused in that case were also convicted and sentenced to pay a fine of Rs. 1,000/- each. Ex.Bl is the certified copy of the judgment in CC No.83 of 1985, Exs.B2 and B3 are certified copies of the written statement and the decree in OS No.70 of 1983 on the file of the Subordinate Judge's Court, Proddutur, respectively. The learned Counsel for the appellant further submits that the lower appellate Court also failed to consider the fact that the plaintiff and his brother in earlier suit filed against them in OS No.70 of 1983 pleaded that they arc small farmers and based on their plea, the money suit filed against them was dismissed. The learned Counsel for the appellant further submits that while deciding a matter of this type, the presiding Judge should not be carried away by what the witnesses say in Court but their evidence has to be scrutinized more carefully in the light of other circumstances in the case. Many a time, men may lic to seek wrongful gain, but the circumstances, when properly analysed, never lie. The learned Counsel for the appellant further submits that as the lower appellate Court failed to appreciate the circumstances under which the said pronote was said to have been executed, it resulted in mis-carriage of justice and it warrants interference by this Court under Section 100 of the Civil Procedure Code.

9. The learned Counsel for the respondent-plaintiff, on the other hand, vehemently contends that there is no substantial question of law involved in this appeal and as such it docs not warrant interference by this Court.

10. It is well settled that the jurisdiction of the High Court to entertain a Second Appeal under Section 100 of the Civil Procedure Code after the 1976 Amendment is confined only to such appeals as involved a substantial question of law. The existence of a substantial question of law and not a merequestion of law is the sine quo non for the exercise of the jurisdiction under Section 100 of the Civil Procedure Code. In Kasi Bai v. Parvathi Bai, : (1995)6SCC213 their Lordships of the Supreme Court held thus:

'It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact based on appreciation of the relevant evidence. There is catena of decisions in support of this view.'

In Dndnath Pandey v, Suresh Chandra Batha Soli, : AIR1986SC1509 , the Supreme Court held that the High Courts in exercise of power under Section 100 of the Civil Procedure Code cannot make a fresh appraisal of evidence and come to a different conclusion contrary to the finding recorded by the first appellate Court. There is catena of decisions in support of this view.

11. In K. Subramaniyam v. S. Nagappa, 1986 (1) ALT 32, it is held that where the reasons given by the Appellate Judge are perverse and there is no consideration of evidence on record at all in the appeal, it constitutes a substantial question of law within the meaning of Section 100 CPC. Thus, where the first appellate Court had considered the evidence on record by applying its mind independently and considered the reasoning of the trial Court and gave its finding on facts, the same does not deserve to be interfered with by the High Court in second appeal. But if a finding of fact has been recorded by the first appellate Court without considering the entire evidence on record, that finding can be successfully challenged in second appeal because a finding of fact which is not supported by any evidence can be questioned under Section 100 of the Civil Procedure Code and in that connection it may be said that a decree proceeding on such a finding discloses a substantial defect or error in procedure. This, however, does not mean that wherever the High Court thinks that the evidence accepted by the lower appellate Court would not havebeen reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate Court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellate Court, no reasonable person could have accepted and that really amounts to saying that there is no evidence at all. The High Court is also justified in interfering when it is made out that the findings given by the lower appellate Court are vitiated by non-consideration of the relevant evidence or failed to meet the points raised by the trial Court in appreciating the evidence on record or the approach to decide the case is quite erroneous. The High Court can also interfere when there is perversity in finding of fact or deliberate mistake either in collection or cvalualion of evidence or when it is the result of surmises and conjectures.

12. Having given my anxious thought to the facts and circumstances and the evidence on record and the impugned Judgment of the lower appellate Court and that of the trial Court, 1 am satisfied that it is a fit case warranting interference by this Court under Section 100 of the Civil Procedure Code. The lower appellate Court failed to appreciate all the circumstances in this case and it has also not met the points raised by the trial Court in appreciating the evidence on record and, therefore, the approach of the lower appellate Court is quite erroneous and the findings of the lower appellate Court have to be held as perverse.

13. It is not disputed that the plaintiff who was examined as PW1. and PWs.2 and 3 are the residents of Korrapadu village which is at a distance of 10 KMs. from Kottala village where the defendant resides. It is also not disputed that village faction existed in Kottala village between Donthireddy Lakshmi Reddy and Pedda Konda Reddy and the defendant herein is the follower of Pedda Konda Reddy. It is also not disputed that Donthireddy Lakshmi Reddy the faction leader of opposite group was murdered on 15-8-1985,It has also come in evidence that Donthireddy Narayana Reddy of Korrapadu village where PWs. 1 to 3 reside is no other than the paternal uncle's son of die deceased Lakshmi Reddy. PWs. 1 and 2 admit that they attend to coolie work of the said Narayana Reddy, but they denied the suggestion that they are also staunch followers of the said Narayana Reddy. The fact that the defendant was abducted on 18-8-1985 from Machanapalli village where the defendant had gone to sec his son-in-law by Jangam Reddy who is the co-son-in-law of the deceased Lakshmi Reddy along with others in a jeep and he was taken away to the house of one Varadarajuki Reddy at Kotha Kamanuru and there they took the signatures of the defendant on three blank white papers on which the stamps were affixed and also beneath the stamps and on 19-8-1985 die defendant was set free by said Jangam Reddy and others, then he preferred a complaint in the police station at Rajupalcm and a case had been registered in Crime No.36 of 1985 and after due investigation die police filed charge-sheet against the said Jangam Reddy and 12 others in CC No.83 of 1985 on the file of the II Additional Munsif Magistrate, Proddutur. After full trial, die said Jangam Reddy and five others (A2 to A6) were found guilty of the offences punishable under Sections 363 and 342 IPC and Jangam Reddy (Al) was also found guilty of the offence punishable under Section 385 IPC and they were convicted for the said offences and Al to A3, A5 and A6 were sentenced to pay a fine of Rs.1,000/-each and in default to suffer simple imprisonment for three months each and A4 who is said to be a student was released under Sections 3 and 4 of Probation of Offenders Act after due admonitions. A7 to A13 were given benefit of doubt and they were acquitted. Ex.Bl is the certified copy of the Judgment in the said CC No.83 of 1985. It is not disputed that the said judgment has become final. It is obvious that the present version set up by the defendant in his written statement in this suit, was held to be true by a competent Criminal Court in its earlier proceedings i.e., in CC No.83 of 1985. The Criminal Court, as earlierstated, gave its findings that this defendant was abducted on 18-8-1985 by Jangam Reddy who is the co-son-in-law of the deceased Lakshmi Reddy and others and the signatures of the defendant were extorted on blank white papers duly stamps affixed to them and Jangam Reddy and five others were also convicted. Therefore, the fact that the defendant was abducted and his signatures on blank white papers were extorted earlier has been upheld by a competent Criminal Court. The lower appellate Court failed to consider this aspect properly and simply brushed aside the Judgment of the Criminal Court stating that the plaintiff was not an accused in that case. It is common knowledge that in a faction ridden village this type of abduction of persons belonging to opposite group and extorting the signatures of such persons on blank white papers with stamps affixed thereon are common, more so, in Rayalaseema region specially in the districts of Anantapur, Cuddapah and Kumool. It is also the modus operandi of the factionists that the blank papers containing the signatures extorted from the persons belonging to opposite group will be converted as pro-notes or any other valuable securities in the name of their followers and confidants. On a consideration of the circumstances in this case, I have no hesitation to say that it is one of such instances. Admittedly, PWs.l to 3 are residents of Korrapadu village where Donthireddy Narayana Reddy also resides and he is no other than the senior paternal uncle's son of the deceased Lakshmi Reddy. The plaintiff-PW1 and PW2 have admitted in their cross-examination mat they used to attend as coolies to the work of the said Donthireddy Narayana Reddy but they denied mat they belonged to the faction of the said Narayana Reddy. It has been categorically stated by the defendant both in his written statement as well as in his evidence that he does not know the plaintiff and that he did not execute the suit pronote in favour of the plaintiff and that the plaintiff has no capacity to lend that amount of Rs.6,000/-to him. The plaintiff examined as PWl also admitted in his evidence that he owns only 4acres of land while the defendant owns about 20 acres of land. The plaintiff also admitted that he saw the defendant once when he (defendant) visited his village. He further admits that about three days prior to the execution of the pronote the defendant asked him to lend the said amount but at that time he had no money and after selling away cholam and groundnut to Donthireddy Bala Rangareddy, he lent that amount to the defendant. It has come on record that the said Donihireddy Bala Rangareddy is also a close relative of the said Donthireddy Narayana Reddy though that fact has been denied by the plaintiff. The plaintiff also admits that in the money suit filed against him and his brother they have taken up a plea that they are small farmers and that suit was dismissed on that ground. Exs.B2 and B3 arc the written statements and the decree passed in OS No-70 of 1983 on the file of the Sub-Court, Proddutur. As seen from these documents, one Kolta Patti Naga Raja Rao and his brothers filed a suit for recovery of Rs.11,260/- due under a pronote dated 29-8-1974 executed by the defendant and his brother and in that suit the defendants i.e., the plaintiff herein and his brother liave set up a plea that they were small farmers and they arc entitled to the benefits of Act 7 of 1977 and, that suit was dismissed on that ground. These two documents amply prove that the present plaintiffs family was not affluent and they themselves were indebted to the public. As seen from Ex.B3, the pronote in that suit OS No.70 of 1983 was executed on 29-8-1974 for Rs.4,350/- and even by 1983 the debt was not discharged by the present plaintiff and his brother. That itself indicates the bad financial position of the present plaintiff. More over that suit OS No.70 of 1983 was dismissed only on the ground that the plaintiff herein and his brother (defendants in that suit) are entitled to the benefits under Act 7 of 1977. In the instant case, the plaintiff was said to have lent a sum of Rs.6,000/- to the defendant on 15-5-1984. In the light of Exs.B2 and B3 it is highly improbable for the plaintiff to tend Rs.6,000/-to the defendant under the suit pronotc Ex.Al. It lends credence to the defence version that the suit pronote was fabricated on blank white paper containing the signatures of the defendant extorted on 18-8-19855. It is no doubt true that the suit pronote is dated 15-5-1984 but the same can be ante-dated to give a colour that it is true and genuine one.

14. One of the reasons which weighed with the lower appellate Court for disbelieving the version of the defendant is that the plaintiff is not an accused in the said criminal case. But it docs not stand to reason. It is common knowledge that no person who extorted white papers containing the signatures of the defendant would convert it as a pronote or any valuable security either in the name of his person or that of the persons who were arrayed as accused in the criminal case instituted by the victim of that extortion and naturally it would be fabricated in the name of his confident or follower. The trial Court observing the demeanour of the witnesses-PWs.l to 3 categorically held that they are not truthful witnesses and they are suppressing the truth. I do not find any reason to reject the said observation of the trial Court. The lower appellate court also disagreed with the observation of the trial Court with regard to the manner of writing of the pronote and that the signatures found on the pronote appear to have been written under some compulsion or coercion when compared to the admitted signatures of the defendant found in his deposition. In paras 14 and 15 of its Judgment, the trial Court observed thus:

'14. In the suit pronote, Ex.Al, it appears the defendant has signed on the revenue stamps and underneath them. The signature as found in the deposition of the defendant should be compared with the signatures in Ex.Al. In the deposition, the defendant has signed in the public Court. He appears to be aged about 55 years. The signature in the suit pronote, Ex.Al appears to be trembling and while holding the per, and signing underneath the revenue stamps one of the letters was struck off as perhapswrongly written and again written. When compared the signatures as found in the deposition it appears that the signatures as found in the suit pronote appear to have been written under some compulsion or coercion. Further, above the revenue stamps in the suit pronote, the body of the pronote has to be seen. The body of the suit pronote is not regular and failed to maintain the place and gap uniformly. Upto the first six lines there appears uniformity maintained in writing and in the further sentences till the end, there is no such uniformity, but gradually maintained by giving more space between line and line probably so as to adjust and cover the space till end upto the revenue stamps. Further more, the letters as found in the last lines also appearing to be some what bold compared to the letters as found in the above lines.

15. Further, it appears four different pens were used to write the entire pronote. The body of the pronote, the signatures of the scribe and the words 'Induku Sakshulu' are written with one pen. In between the words 'Induku Sakshulu' and the sentence 'Bikkalam Kakarla Narasimha Reddi Vrasinadi - Thedi 15-5-84' 'there is space meant for signatures of the attestors will be found one by one. But here in the suit pronote, the signatures both the attestors are found in a single line one after the another, which would be probably to maintain the space. As different pens were appeared to have been used, I could not come to the conclusion that the suit pronote was written on the one and the same day at a particular time and at a time.'

The lower appellate Court while disagreeing with the said observations of the trial Court observed in para 12 of its Judgment thus:

'12. The trial Court observed that the signatures of the respondent in Ex.Al pronote appear to be 'Trembling'' and they appear to have been written under somecompulsion or coercion. On same careful comparison of the admitted signatures of the respondent in Ex.Al pronote and his signature in the deposition I am unable to accept the conclusions of the trial Court. It is to be stated that respondent is not an educated person and he knows only to sign. Therefore we cannot expect a steady writing from the respondent. Further the respondent himself admitted in the trial Court that the signatures in Ex.Al pronote are his signatures. The trial Court further observed that the manner in which Ex.Al pronote was written give the impression that the contents were written after obtaining the signatures of the defendant. I have gone through the contents of Ex.Al pronote. They did not give me the impression that there is significant gap between the lines in the later portion of Ex.Al with a view to bring the writing till the revenue stamps.'

15. These contradicting conclusions rather compelled me to observe the suit pronote carefully. On a careful observation of the preparation of the suit pronote and the signatures of the executant found on it. I fully agree with the observations of the trial Court. The signatures in the suit pronote, Ex.Al, appeared to have been written by a person trembling and one of the letters in the signature found beneath the revenue stamp has been struck off and again it has been written. The signature found on the deposition of the defendant is quite natural. Further, I also fully agree with the observation of the trial Court that the body of the suit pronote is not regular. There is no uniformity in the gap maintained between two lines. The first six lines appeared to have been written giving less space and gradually thereafter the space is more in between the lines. Further the letters as found in last few lines appears to be some what bold compared to the letters found in the first few lines. This itself is an indication that the body of the suit pronote has been written adjusting the space containing above the signature of the executant. It does not appear to have beenexecuted under normal circumstances. If it had been executed under normal circumstances, there would have been uniformity in the space in between the lines and also there would not have been difference in the letters as found in the suit pronote, Ex.Al. I also agree with the observation of the trial Court that four different pens might have been used to write the entire suit pronote in view of the difference in ink found in Ex.Al. This does not corroborate with the testimony of PWs.l and 2 that only one pen was used for drafting the entire pronote and also for obtaining the signatures of the attestors. All thes'e circumstances give credence to the defendant's version that the suit pronote was not executed by him after receiving the consideration and that his signatures were extorted under duress on white paper and it might have been converted into the suit pronote.

16. On a careful consideration of the entire evidence on record, I am inclined to accept the findings of the trial Court rather than the findings of the lower appellate Court. There is no proper appreciation of the evidence on record and other circumstances in this case by the lower appellate Court. As earlier stated, in a case of this type, one should consider all the circumstances in their proper perspective while ascertaining the truth in the matter. The circumstances, when analysed properly, will bring forth the truth to light and the Judge should have open mind to see that truth in the light of those circumstances.

17. For the foregoing reasons, I am satisfied that the findings of the lower appellate Court are perverse as it failed to properly appreciate the defendants version in the light of the Judgment of the criminal case and other circumstances of this case. This discloses substantial defect and error in the evaluation of the evidence on record by the lower appellate Court. Therefore, the findings of the lower appellate Court are liable to be set aside and this appeal has to be allowed.

18. In the result, this second appeal is allowed with costs. The Judgment and decree in AS No-18 of 1988 on the file of the Sub-Court, Proddutur are set aside. The Judgment and decree in OS No.208 of 1987 on the file of the Principal District Munsif, Proddutur, are confirmed.