(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, as against the Judgment and Decree of the Subordinate Court, Kallakurichi in A.S.No.148 of 2005 dated 21.02.2008 reversing the Judgment and Decree of the Principal District Munsif, Kallakurichi in O.S.No.945 of 2004 dated 04.04.2005.)

The Second appeal has been preferred as against the decree and judgment passed by the Subordinate Judge, Kallakurichi in A.S.No.148 of 2005 dated 21.02.2008. The appellant is the Plaintiff before the trial Court, who filed the Suit for the relief of recovery of money based on a Promissory Note. The said Suit was decreed on 04.04.2005. Aggrieved by the said decree and judgment, the defendants have preferred an appeal in A.S. No.148 of 2005 on the file of the Subordinate Judge, Kallakurichi. The said appeal was allowed by setting aside the decree and judgment passed by the trial Court. Aggrieved by the said decree and judgment, the Plaintiff has preferred this second appeal.

2. The case of the Plaintiff before the trial Court is that the defendant Annamalai, being the Manager of a joint family, borrowed a sum of Rs.80,000/-from the Plaintiff and executed a Promissory Note dated 30.06.1995 agreeing to repay the said principal amount with interest at Rs.1/- per Rs.100/- per month. Inspite of repeated demands and requests made by the Plaintiff, the defendant failed to repay the amount. Therefore, the Plaintiff filed the Suit for recovery of money based on the said Promissory Note.

3. The case of the defendant before the trial Court is that he denied the borrowal of money, execution of promissory note and passing of consideration through the Suit promissory note. According to the defendant, the Suit Promissory Note is a forged and fabricated one. In fact, the defendant, one year before, on 24.02.1998, borrowed a sum of Rs.10,000/- by putting signature in an unfilled Promissory Note for that amount. Thereafter, the said amount was repaid within 6 months and agreed to pay the interest amount after the sale of turmeric within a short period. However, the Plaintiff refused to return the Promissory Note as the interest amount was not paid on that date. While so, on 15.02.1998, the Plaintiff and his sons and son-in-laws, in the Chinna Salem Bus stand, assaulted the defendant by demanding interest amount, thereby, a criminal case has been registered against the appellant and others in Cr. No.705 of 1998. Further on 24.02.1998, the defendant issued a notice to the Plaintiff to return the Promissory Note and not to create any other Promissory notes and the said notice was served on the Plaintiff, but no reply was sent by him. Therefore, the Suit is liable to be dismissed.

4. Based on the above said pleadings and after hearing both sides, the trial court has framed the following issues and additional issues for trial:-

                          Issues:

                          (i) Whether the Promissory Note dated 30.06.1995 is a forged one?

                          (ii) Whether the defendant executed a blank Promissory Note and the same was forged by the Plaintiff?

                          (iii) Whether the defendant has to pay, only the interest to the Plaintiff?

                          (iv) To what other reliefs, the Plaintiff is entitled?

                          Additional Issues:

                          (i) Whether the Suit Promissory Note is genuine and consideration has been passed through the Promissory Note?

                          (ii) Whether the Plaintiff is entitled to the recovery of money from the defendant?

                          (iii) To what other reliefs, the Plaintiff is entitled?

5. Before the trial court, on the side of the plaintiff, witnesses P.W.1 to PW3 were examined and marked exhibits, Ex.A.1 to A3. On the side of the defendants, witnesses D.W.1 to DW3 were examined and Ex.B.1 to Ex.B.3 have been marked. The trial court, after evaluating the oral and documentary evidences adduced on both sides and perusing the records, decreed the Suit on 04.04.2005. Aggrieved by the said decree and judgment, the defendants have preferred an appeal in A.S. No.148 of 2005 on the file of the Subordinate Judge, Kallakurichi on various grounds.

                          5.1. The First Appellate Court has framed the point for determination as to Whether the appeal has to be allowed or not?

6. After hearing both sides and perusing the records, the First Appellate Court allowed the appeal by setting aside the decree and judgment passed by the trial Court. Aggrieved by the said decree and judgment, the present second appeal has been preferred by the appellant / Plaintiff.

7. This Court, at the time of admitting the second appeal, formulated the following Substantial Question of Law.:-

Whether the mention of discharge of loan amount in criminal complaint without any reference to the Suit transaction would discharge the liability of the respondent against the appellant

8. For the sake of convenience and brevity, the parties herein are referred as plaintiff and defendant, as referred before the trial Court.

9. The learned counsel appearing for the appellant would submit that the appellant is the Plaintiff and he filed a Suit for the relief of recovery of money based on the Promissory Note. In fact, the defendant borrowed money for a sum of Rs.80,000/- with interest at the rate of Rs.1/- per Rs.100/- per month and he executed a Promissory Note dated 30.06.1995. Thereafter, the defendant failed to repay the money, thereby, the Plaintiff filed the Suit. The defendant denied the borrowal of money and execution of Promissory Note. Further he admitted that he borrowed only Rs.10,000/- and he repaid the same. According to the defendant, the interest amount for the said amount alone, is payable by the defendant. Thereby, the defendant was unable to pay interest.

                          9.1. Before the trial Court, in order to prove the case of the Plaintiff, witnesses P.W.1 to PW3 were examined and marked exhibits, Ex.A.1 to A3. On the side of the defendants, witnesses D.W.1 to DW3 were examined and Ex.B.1 to Ex.B.3 have been marked. The trial Court after considering the evidences, correctly decreed the Suit by holding that the defendant admitted the receipt of Rs.10,000/- and execution of unfilled Promissory Note, thereby, the defendant has to prove that he borrowed only Rs.10,000/- and not Rs.80,000/- and he returned back the said loan amount of Rs.10,000/-. Whereas the defendant has not proved the discharge of loan amount by adducing proper evidence and the original borrower died and the defendants 2 to 6 are the legal heirs, who are enjoying the properties of the 2nd defendant and thereby, they are liable to pay the money and decreed the Suit. However, the First Appellate Court without considering the evidence in a proper and perspective manner, allowed the appeal by setting aside the decree and judgment of the trial Court on the ground that FIR has been registered in a criminal case, wherein it has been mentioned as if the defendant has to pay the interest amount only. The First Appellate Court failed to consider that once the defendant has taken a plea that the defendant received a sum of Rs.10,000/- and the same was paid and the interest alone is payable, it is for the defendant to prove the same. But the First Appellate Court, without considering the above said real position, erroneously dismissed the Suit. Already when the Plaintiff, his sons and son-in-law have demanded the money, there was a scuffle between them, thereby, a criminal complaint was also lodged against the appellant. Further the First Appellate Court relied upon the mentioning about the discharge of loan amount in a criminal case, without any reference to the Suit transaction. Therefore, the decree and judgment passed by the First Appellate Court are liable to be set aside.

10. The learned counsel appearing for the respondents would submit that the appellant is the Plaintiff, who filed the Suit for recovery of money as against the defendant. In fact, the defendant had money dealings with the appellant / Plaintiff and he has borrowed only Rs.10,000/- and already he repaid the said amount and at the time of borrowal of money, he handed over an unfilled, signed Promissory Note to the Plaintiff and after payment of the principal amount, the Plaintiff did not return the Promissory Note due to non-payment of interest amount by the defendant. The Plaintiff and others demanded the interest amount and a criminal case was registered. In that criminal proceedings, the Plaintiff admitted that the defendant has to pay the interest amount only and thereby, he himself admitted the principal amount was paid and the interest amont alone is payable. However, he filed the Suit for recovery of money for Rs.80,000/- with interest. The trial Court, without considering the evidence in a proper and perspective manner, decreed the Suit by placing the burden on the defendant to prove the case. However, the First Appellate Court has correctly appreciated the facts and law and set aside the decree and judgment of the trial Court and dismissed the Suit, as the Plaintiff admitted in the criminal case that the defendant has to pay the interest amount only. Therefore, the First Appellate Court has correctly set aside the judgment and decree passed by the trial Court. There is no substantial question of law involved in this case and the second appeal is liable to be dismissed.

11. This Court heard both sides and perused the entire materials available on record.

12. In this case, the appellant is the Plaintiff, who filed the Suit for recovery of money based on the Promissory Note. According to the Plaintiff, the defendant borrowed the money for a sum of Rs.80,000/- on execution of Promissory Note by agreeing to repay the same with interest at Rs.1/- per Rs.100/- per month. Thereafter, he did not repay the amount and hence the Plaintiff filed the Suit. The defendant denied the borrowal of Rs.80,000/-, execution of Promissory Note and passing of consideration through the Promissory Note. However, he admitted that he borrowed a sum of Rs.10,000/-only from the Plaintiff and at the time of borrowal, the defendant handed over an unfilled,signed Promissory Note with the Plaintiff and the same is now utilized for the case and the principal amount of Rs.10,000/- was repaid by the defendant and the defendant has to pay only the interest amount for the said Rs.10,000/-. Due to the non-payment of interest by the defendant, there was a scuffle between the parties, thereby, a criminal case was registered and in that criminal case, the Plaintiff admitted that the defendant has to pay only the interest amount. Therefore, the defendant has to pay only the interest amount.

13. Though the Plaintiff has filed the Suit for recovery of money based on the Promissory Note, the defendant admitted the unfilled Promissory Note signed by him and the same was utilised by the Plaintiff and the defendant admitted that he borrowed money to the tune of Rs.10,000/- and the same was repaid and there was interest amount only payable by the defendant. While so, the defendant has to prove that he had borrowed money for a sum of Rs.10,000/- from the Plaintiff and the same was repaid by him and only the interest amount is payable by the defendant to the Plaintiff. In this context, the defendant has not mentioned the date of borrowal of money and the rate of interest and on which date, he repaid the money for a sum of Rs.10,000/- to the Plaintiff and what is the interest payable by the defendant. There are vague pleadings in the written statement about the borrowal of Rs.10,000/- and repayment by him. Whereas the Plaintiff has examined the witnesses from PW1 to PW3 and marked Ex.A.1 to Ex.A3, and through the said evidences, the Plaintiff has proved the execution of Promissory Note and passing of consideration. The defendants failed to prove that they only borrowed Rs.10,000/-, the same was repaid and the interest amount alone has to be paid. There is no acceptable evidence adduced on the side of the defendants. They have examined DW1 to DW3 and marked Ex.B1 to Ex.B3. Those evidences are not sufficient to prove the contention of the defendants.

14. The defendants have mainly relied upon the criminal proceedings, where the Plaintiff stated that , therefore, the above said wordings show that already the principal amount was paid and only the interest amount above has to be paid by the defendants. The proceedings in criminal case is noway relevant to decide the present case. In that case, the FIR has been registered for the offences under Sections 147, 294(b), 323, 326 and 506(1) read with 34 of IPC. While rendering judgment in the above case, the words has been referred. That itself is not sufficient to discharge the burden on the defendant to prove that they already paid the principal amount and interest amount only has to be paid. In this context, the trial Court has elaborately discussed about the evidence adduced on both sides in a proper and perspective manner and held that the defendants denied the receipt of Rs.80,000/- and they had received Rs.10,000/- only and the same was also repaid and the interest alone has to be paid. While demanding interest amount, there was a scuffle between the parties, thereby, a criminal case has been registered. But the defendants’ side evidences have not even known about the transaction between the deceased defendant and the plaintiff and there is no evidence that the above said criminal case was registered for the Suit Promissory Note transactions. The Plaintiff, through evidence, has proved the execution of Promissory Note and passing of consideration through that Promissory Note. Whereas the defendants have failed to prove that they borrowed Rs.10,000/- only, for which, principal amount was already paid and the interest only has to be paid. Therefore, the defendant failed to rebut the presumption under Section 118 of the Negotiable Instruments Act and decreed the Suit.

15. However, the First Appellate Court reversed the judgment and decree passed by the trial Court based on the criminal court judgment, wherein they referred the words used by the Plaintiff that ““mry; bfhLj;JtpL;Lhy; nghJkh. tL;o v ; nfLh”, thereby a criminal case has been registered and therefore, the defendants have probabilised their defence. The First Appellate Court, cannot take the Criminal Court judgment to decide the case of the defendant based on the Promissory note. The First Appellate Court ought to have analised evidences adduced in this case, instead of relying the criminal case records. Even in the said criminal case, there is no reference about which transaction, there was scuffle between the parties and when the Plaintiff has categorically proved the execution of Promissory Note and passing of consideration through evidences, it is the duty of the defendant to prove that he borrowed Rs.10,000/-only and the same was repaid and the interest alone has to be paid. But the defendant has not discharged his burden and thereby, the findings of the First Appellate court are without any evidences and based on the irrelevant materials. Therefore, the decree and judgment passed by the First Appellate Court are unsustainable and are liable to be set aside.

16. The learned counsel appearing for the appellant had relief upon the following judgments:

                          (i) M.S. Sheriff and another v. State of Madras and another reported in (1954) 1 Supreme Court Cases 524.

                          (ii) Syed Askari Hadi Ali Augustine Imam and another v. State (Delhi Administration) and another reported in (2009) 5 Supreme Court Cases 528.

                          (iii) Vishnu Dutt Sharma v. Daya Sapra (Smt) reported in (2009) 13 Supreme Court Cases 729.

On a careful perusal of the above judgments, it is clear that ordinarily a criminal proceeding will have primacy over the civil proceeding in view of the fact that disposal of a civil proceeding generally takes a long time. If primacy is to be given to a criminal proceeding, the civil suit must be determined on its own merit, keeping in view the evidence brought therein and not in terms of the evidence brought in the criminal proceeding. Also it is clear that the judgment given in a criminal proceeding will not be binding in a civil proceeding and judgment of a criminal court in a civil proceeding will only have limited application inter alia for ascertaining who was the accused and what was the result of the criminal proceedings. In the case on hand also, the respondents have relied upon the juidgment of the criminal court and the criminal court judgment will not be applicable to decide the civil case and thereby, the said judgments are squarely applicable to the present facts of the case.

17. Further, the learned Senior Counsel appearing for the respondents has relied upon the following judgments:

                          (i) Basalingappa v. Mudibasappa reported in (2019) 5 SCC 418.

                          (ii) K.G. Premshanker v. Inspector of Police, and another reported in CDJ 2002 SC 529.

On a careful perusal of the above said judgments, it is clear that the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Section 40 and 42 of other provisions of the Evidence Act, then in each case, Court has to decide to what extent it is binding or conclusive with regard to the matters decided therein. If the criminal case and the civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. The said judgments will not be applicable to the present facts of the case, as the present facts of the case are distinguishable, thereby, the said judgments are no way helpful to decide the case in favour of the respondents.

18. As far as the substantial question of law is concerned, the Plaintiff filed the Suit for recovery of money for a sum of Rs.80,000/- based on the Suit Promissory Note. However, the defendant denied the borrowal of Rs.80,000/-. According to him, he borrowed only Rs.10,000/- and the same was also repaid by him. At the time of borrowal of money, the defendant handed over an unfilled and signed Promissory Note. Once the defendant has taken a plea of discharge, he has to prove the discharge of loan. As far as the criminal complaint is concerned, in that complaint, there is no reference about the Suit Promissory Note transactions and only there was a scuffle between the parties in respect of payment of money. While so, it is not appropriate to hold that the said quarrel was related to the Suit transactions. The defendant has also not specifically pleaded about the criminal case and whether the said criminal case is based on the Suit money transactions or not and he has only referred that a criminal case filed against the Plaintiff. Therefore, mere claiming of interest in a criminal complaint, without any reference with respect to the Suit transaction, would not discharge the liability of the defendant against the appellant and thereby, the substantial question of law is answered in favour of the appellant and as against the defendant.

19. In view of the above discussions, judgments relied upon by the learned counsels appearing on both sides and answer to the substantial question of law, this Court is of the opinion that the the decree and judgment passed by the First Appellate Court are unsustainable and are liable to be set aside and the second appeal is to be allowed.

20. Accordingly, the Second Appeal stands allowed. The Judgment and Decree of the Subordinate Court, Kallakurichi in A.S.No.148 of 2005 dated 21.02.2008, are set aside and the Judgment and Decree of the Principal District Munsif, Kallakurichi in O.S.No.945 of 2004 dated 04.04.2005, are restored. There shall be no order as to costs.