IMPORTANT POINT
The plaintiff failed to prove the execution and authenticity of the promissory note, leading to the dismissal of the appeal.

JUDGMENT :

Sathish Ninan, J.

The suit for recovery of money under a promissory note was dismissed by the trial court. The plaintiff is in appeal.

2. According to the plaintiff, on 20.04.2007 the defendant borrowed an amount of Rs. 9 lakhs from the plaintiff and executed Ext.A1 promissory note. Alleging failure on the part of the defendant to wipe off the liability, the suit is filed.

3. The defendants denied the alleged borrowal and also the execution of Ext.A1 promissory note. The signature thereon was denied. It was contended that Ext.A1 agreement is a forged document created at the instance of the money lender viz. one Saseendra Babu. The defendants challenged the financial capacity of the plaintiff to advance the amount.

4. The trial court on appreciation of the evidence held that the plaintiff has failed to prove the transaction and accordingly dismissed the suit.

5. We have heard learned counsel on either side.

6. The points that arise for determination in this appeal are :-

(i) Has the plaintiff proved the due execution of Ext.A1 promissory note?

(ii) Does the evidence on record prove the transaction claimed by the plaintiff?

(iii) Does the decree and judgment of the trial court warrant any interference ?

7. The defendants have denied the very execution and signature in Ext.A1 promissory note. Ext.A1 mentions one Gopakumar as a witness. In spite of the above stand of the defendants, the said Gopakumar was not examined. It is curious to note that his non-examination was in spite of the fact that he was summoned and present before the court on the date of trial. The scribe of Ext.A1 was examined as PW2. Going by his evidence the said Gopakumar played an active role in the transaction. It is in spite of the same that the said Gopakumar is not examined.

8. In spite of the specific denial of the financial capacity of the plaintiff to advance the amount, the plaintiff has not produced any document evidencing the source of the funds. While examined as PW1, he has admitted that during the relevant time he had liabilities to Bank of more than Rs. 5 lakhs. It is in spite of the same that Rs. 9 lakhs is claimed to have been given as loan to the defendant. Regarding the source, though the plaintiff attempted to project a case that he had sold his immovable properties under Ext.A5 to A9 sale deeds and thus had funds with him, noticeably the sale deeds were during the period from 13.09.1996 to 30.12.2006. It is difficult to accept that he was retaining the consideration for the said sale transactions in cash, and was given to the defendants under Ext.A1. Further, as noticed by the trial court even the total sale consideration under the said sale deeds is only Rs.1,42,000/-. Though the plaintiff claimed that he has seven bank accounts, none of the bank statements are produced to substantiate the availability of sufficient funds with the plaintiff to advance such amounts to the defendants under Ext.A1. The failure on the part of the plaintiff to produce materials to show his source coupled with the fact that he was at the relevant time indebted to the Bank casts cloud on the genuineness of the claim.

9. The above apart, it has come out in evidence that at the relevant time there was a criminal case pending against the defendants initiated at the instance of the plaintiff alleging that an amount of Rs. 12.5 lakhs is due to the plaintiff in relation to an agreement for sale of a property. The claim of the plaintiff that a further amount of Rs. 9 lakhs was paid when such proceedings were pending and Rs. 12.5 lakhs was outstanding, is very difficult to be accepted. The plaintiff would contend that the defendants had agreed that the property would be sold and the entire liability wiped off. However admittedly