Rudda Ramakrishnam Raju vs Kalidindi Ramakrishnam Raju and Another

V. Bhaskara Rao, J.—The Revision Petitioner is defendant in O.S.Nos. 7/92 and 6/92 on the file of Subordinate Judge, Bhimavaram. He filed I.A.Nos. 504/96 and 505/96 for a similar relief and they have been dismissed on similar grounds. As common questions of law and fact are involved in both these revision petitions, they are being disposed of by a common order.

The facts in C.R.P.No. 2357 of 1997 are that the revision petitioner is said to have borrowed a sum of Rs. 65,000/- from the respondent and executed the suit pronote dated 30-12-1988. He is resisting the above suit on various grounds one of them being that the pronote is materially altered inasmuch as the date 30-12-1985 is altered to 30-12-1988 underneath the signature on the revenue stamps therein and hence he sought for sending the suit pronote to the handwriting expert for his opinion.

The facts in CR.P.No. 2382 of 1997 are that the Revision Petitioner is said to have borrowed a sum of Rs. 50,000/- from the respondent herein and executed a pro note on 30-12-1988. A written statement is filed by him resisting the suit on various grounds. One of the grounds is that there is a material alteration therein, namely, that the date 13-12-1985 underneath the revenue stamps is altered to 13-12-1988 and hence it is void under law. He, therefore, sought for the pronote being sent to the handwriting expert for his opinion.

Both the petitions have been resisted by the concerned respondents-plaintiffs on similar grounds. It is stated that the revision petitioner has set up inconsistent pleas in his written statement namely, that the suit pronote is a forged one and that the same is materially altered and as such it is not valid under law. The learned Subordinate Judge considered the rival contentions and passed separate orders dismissing both the petitions but he recorded similar reasons for doing so. Assailing these orders, Sri K. Suryanarayana, learned counsel for the revision petitioner contended that the learned Subordinate Judge proceeded on a wrong premise that the revision petitioner has pleaded that the suit pro note is a forged one, whereas the plea is that the signatures were obtained on blank papers which does not amount to plea of forgery. He further contended that the material alteration under the signature on stamp papers is clearly visible to the naked eye so much so, that the date 30-12-1985 is altered to 30-12-1988 so as to bring the suits within limitation. As the above material alteration has the effect of rendering the suit pronote void, he urged that the same may be referred to an expert for proper and effective adjudication of the matter.

Sri Kodandaram, learned counsel for the respondents in both the C.R.Ps. however, resisted the same on the ground that the burden of proof to show that alteration, if any, is not improperly made is upon the holder i.e., plaintiff. He further contended that inconsistent pleas cannot be taken by the defendant in such suits and that the impugned orders are sustainable in view of valid reasons recorded by the lower Court.

I carefully perused the impugned orders and I find that the learned Subordinate Judge recorded in so many words that in one breath the revision petitioner pleaded that the suit pronote is a forged one and in another breath he pleaded that there is material alteration and in view of these inconsistent pleas the petition cannot be considered. As pointed out by Sri K. Suryanarayana, the defence appears to be that signature of the revision petitioner was taken on blank papers which means that the signature on the suit pronote is admitted. It is then pleaded that there is material alteration in the date underneath the signature on the revenue stamps. In that view of the matter, it cannot be said that there is a plea of forgery of the suit pro note. Thus, it is evident that the learned Subordinate Judge proceeded under a wrong premise that there are inconsistent pleas set up by the revision petitioner.

As regards the burden of proof Section 118 of the Negotiable Instruments Act raises certain presumptions regarding the passing of consideration and it is well settled that the burden of proof is heavy upon the defendant to establish want of consideration when once execution is proved or admitted even in the manner and to the extent as is admitted by the revision petitioner in these cases. Likewise, Clause (b) of Section 118 raises a presumption as to date that "every negotiable instrument bearing a date was made or drawn on such date". It is needless to say that a presumption u/s 118 of the Act is a rebuttable presumption. It is, therefore, understandable that the onus of proof shifts to the defendant when once the execution is proved or admitted if not specifically but even if it be to the extent of the signature on blank papers, in my view, it is open to the revision petitioner-defendant in such cases to seek resort to Section 87 of Negotiable Instruments Act and contend that there is a material alteration. In such cases the burden lies upon him to establish the material alteration pointed out by him if necessary with the help of handwriting expert. When once the defendant is able to establish the material alteration the presumption u/s 118 Clause (b) can be said to have been rebutted. Then the onus shifts to the plaintiff to show that the alteration of date is not improperly made and it is in this context that the authority in Subba Reddy v. Ramana Reddy, 1996 (1) An.W.R. 141 referred to in the impugned order can be applied. Therefore, the revision petitioner is entitled to seek the help of handwriting expert by referring the suit pro notes to him and an opinion of handwriting expert will go a long way in deciding the real questions in controversy. The learned Subordinate Judge has, therefore, landed in error of judgment on account of the wrong premise on which he proceeded and failed to consider the effect of presumption under Clause (b). There is, therefore, merit in these Revision Petitions and the same are fit to be allowed.

In the result, both the Revision Petitions are allowed and the impugned orders in I.A.Nos. 504/96 in O.S.No.7/92 and 505/96 in O.S.No. 6/92 on the file of the Subordinate Judge, Bhimavaram, are set aside and consequently, both the I.As are allowed. The suit pronotes in both the cases are accordingly directed to be referred to a handwriting expert for opinion regarding the alleged material alterations in the dates underneath the signatures of the Revision Petitioner on the stamps. There will be no order as to costs.