JUDGMENT
C.Y. Somayajulu, J.
1. In a suit filed by the respondent for recovery of the amount covered by the promissory note dated 12-6-1996, executed by the appellants in his favour, appellants filed their written statement contending that they did not borrow any amount from the respondent and did not execute the suit promissory note and that is a forged document. It is their case that the 1st appellant worked as a mason under the respondent for some time and since respondent failed to pay the amounts due and payable to him, he stopped attending the works taken up by the respondent and so he must have forged the promissory note to spite him.
2. Basing on the pleadings, the trial Court framed the following issues:
1. Whether the suit promissory note is fabricated and forged one ?
2. Whether the plaintiff is entitled to recover the suit sum as prayed for ?
3. To what relief ?
3. In support of his case, respondent examined himself as P.W.I and another person, who is said to have been present at the time of execution of the suit promissory note, as P.W.2 and marked Exs.A1 and A2. In support of their case, appellants examined themselves as D.Ws.l and 2, but did not adduce any documentary evidence.
4. The trial Court, after considering the evidence on record, held on issue No. 1 that the suit promissory note is not forged and on issue No. 2 that the respondent is entitled to recover the amount, and accordingly, on issue No. 3, decreed the suit. Appeal preferred by the appellants against the said decree to the Senior Civil Judge, Gudur was dismissed. Hence, this second appeal.
5. The contention of the learned Counsel for the appellants is that since the Courts below solely based on the presumption arising under Section 118 of the Negotiable Instruments Act, 1881 (for short ‘the Act’) ignoring the fact that the respondent failed to prove Ex.A1 by examining its attestors or the scribe, those findings of the Courts below are unsustainable in view of the ratio in G. Vasu v. Syed Yaseen Sifuddin Quadri, 1987 (1) ALT 1, where it is held that if the defendant adduces evidence which is sufficient to rebut the presumption under Section 118 of the Act, legal burden would be on the plaintiff in the suit to establish the execution of promissory note and the passing of consideration by adducing cogent evidence.
6. The contention of the learned Counsel for the respondent is that since both the Courts below concurrently found that the suit promissory note was executed by the appellants, the presumption under Section 118 of the Act is automatic, because appellants failed to establish want of consideration and since no question of law much less substantial question of law arises for consideration, this appeal is liable to be dismissed.
7. At the outset, it is to be stated that the trial Court was in error in framing the issue No. 1 in the suit in the manner in which it did, obviously, failing to keep in view the rules relating to burden of proof and especially Section 102 of the Evidence Act, which lay down that the burden of proof in a suit or proceeding lies on that person, who would fail if no evidence at all were given on either side. In view thereof when the defence of forgery is taken by the defendant in a suit based on a promissory note, the burden of proof will always be on the plaintiff to establish that the suit promissory note is executed by the defendant because he will have to fail if no evidence is adduced on either side. In such a case the plaintiff should adduce evidence in the first instance to prove that the suit promissory note was executed by the defendant. Therefore, issue No. 1 should have been “whether the suit promissory note is executed by the defendants.” Not framing issue No. 1 properly by the trial Court does not have a bearing on this appeal because the respondent adduced evidence in the first instance to prove his case and appellants adduced evidence later.
8. It is to be noted that 1st appellant is a signatory and the 2nd appellant is a markswoman. Though respondent adduced evidence to show that both appellants executed Ex.A1, respondents tried to project their case that the signature of the 1st appellant in Ex.A1 is forged, but did not say anything about the thumb impression of the 2nd appellant. I would deal with this aspect in detail later.
9. The case of the appellants is that since 1st appellant stopped attending to the masonary work of the respondent, he bore a grudge against him and fabricated Ex.A1. There is nothing on record to show that 1st appellant is a reputed mason of great skill and that no other mason of that repute or skill is available in that area, for the respondent to bear grudge against the 1st appellant and spite him by forging a promissory note. There is nothing on record to show why the respondent has to rope in the 2nd appellant when the dispute is said to be between the first appellant and respondent. Though this aspect of the alleged grudge between the 1st appellant and the respondent was not considered by the trial Court in its judgment the learned Senior Civil Judge held that there was no necessity for the respondent to forge a promissory note for the 1st appellant’s failure to attend the masonary work. I agree with that observation and also add that the evidence on record does not disclose any reasons for the respondent bringing into existence of promissory note implicating the 2nd appellant also.
10. The fact that respondent did not take steps to send Ex.A1 to an expert is of no consequence because Section 73 of the Evidence Act empowers the Court to compare the signatures to decide their genuineness or otherwise. The trial Court, after comparing the signatures of the first appellant on Ex.A1 with the admitted signatures, came to a conclusion that the signature in Ex.A1 is that of his inspite of the fact that there is omission of one small line therein, which is found in the admitted signatures. Obviously the trial Court must have compared the signature of the 1st appellant in his written statement, vakalat, and the suit summons with that in Ex.A1, because no other documents containing the signature of the 1st appellant are available on record. All those signatures are subsequent to Ex.A1. The possibility of the 1st appellant trying to disguise his signature cannot be ruled out. It is also well known that no two genuine signatures would be identical and there would always be some variation between the two genuine signatures because it is almost impossible for a person to make two signatures exactly alike in all details. In fact some persons find it difficult to sign on revenue stamps, as perforations of stamps impede speed. So while signing across a revenue stamp the signatory may miss some details or characteristics of his usual signature. In view therefore the fact that there is a small omission in the signature of the first appellant found in Ex.A1, which is present in the other admitted signatures of his, compared by the Courts below, cannot be a ground for holding that the signatures found in Ex.A1 is not that of the first appellant.
11. All the above apart whether the signature on Ex.A1 is that of the first appellant or not is a pure question of fact and no question of law is involved therein. Since both the Courts below, after considering the evidence on record, and on comparison of the signatures, concurrently found that the signature found in Ex.A1 is that of the first appellant, this Court sitting in second appeal cannot interfere with that findings.
12. The fact that none of the attestors to Ex.A1 are examined is also of no consequence and is not fatal to the case of the respondent because promissory note is not a compulsory attestable document. Similarly, non-examination of the scribe also is not of much relevance, because it is for the respondent to decide how to prove execution of Ex.A1. He can be satisfied by examining himself, and make a request to the Court to compare the signatures and give a findings. The appellants could have examined the attestor and scribe on their side when the respondent failed to examine them to rebut the case of the respondent. But, for reasons known only to them, they did not choose to do so.
13. In G. Vasu’s case (supra) strongly relied on by the learned Counsel for the appellants, the Full Bench was considering the question as to how the defendant in a suit on a promissory note can establish that the same is not supported by consideration. In this case, appellants except stating that Ex.A1 is a forgery, and is brought into existence to spite them since 1st appellant stopped attending to the masonary work of respondent, did not take any other plea. As stated earlier, 1st appellant’s alleged discontinuance to work with the respondent, cannot be a ground for respondent forging Ex.A1. Since the Courts below concurrently found that Ex.A1 is true, presumption under Section 118 of Negotiable Instruments Act automatically springs up. So the onus would be on the appellants to establish that Ex.A1 is not supported by consideration. When the appellants fail to establish that Ex.A1 is not supported by consideration, respondent is entitled to a decree. Therefore, I am unable to agree with the contention of the learned Counsel for the appellants that when execution of Ex.A1 is specifically denied by the appellants, respondent besides establishing due execution of Ex.A1 should also establish passing of consideration therein, because when execution of Ex.A1 is proved, the presumption under Section 118 of Negotiable Instruments Act that it is supported by consideration automatically applies to Ex.A1.
14. Since no question of law much less substantial question of law arises for consideration, this second appeal deserves to be and hence is dismissed with costs.