Kapil Kumar vs Raj Kumar

KAPIL KUMAR ...APPELLANT(S)

VERSUS

RAJ KUMAR …RESPONDENT(S)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 05.08.2019 passed by the High

Court of Punjab and Haryana at Chandigarh in Regular

Second Appeal No. 1727 of 2016, by which, the High Court

has allowed the said appeal preferred by the original

defendant and has set aside the judgment and order

passed by the First Appellate Court as well as the Trial

Court decreeing the suit for recovery of Rs. 1,36,550/­ the

original plaintiff has preferred the present appeal.

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2. The appellant herein – original plaintiff instituted the suit

against the respondent – original defendant for recovery of

Rs. 1 lakh. It was the case on behalf of the plaintiff that

the defendant has borrowed a sum of Rs. 1 lakh from him

on 29.06.2007 and has also executed a pro­note (exhibit

P1) and receipt (exhibit P2) in favour of the plaintiff. The

defendant denied the execution of pro­note and took the

stand that no loan was taken by the defendant and in fact

the transaction was in between the father of the plaintiff

and the defendant had paid the whole amount borrowed

by him from the father of the plaintiff. The learned Trial

Court framed the relevant issues.

2.1 The plaintiff examined four witnesses, namely, PW1 – Kapil

Kumar (plaintiff), PW2 – Yashpal Chand (handwriting and

finger print expert), PW3 – Satish Kumar (deed writer) and

PW4 – Sat Narian (clerk to prove legal notice).

2.2 The defendant examined three witnesses, namely, DW1 –

Dinesh Kumar (clerk cum cashier, SBI to prove the deposit

of amount in bank account), DW2 – Raj Kumar (defendant)

and DW3 – Phool Singh s/o Puran Singh (father of

plaintiff).

2 2.3 On appreciation of evidence, the learned Trial Court

believed the execution of pro­note executed by the

defendant in favour of the plaintiff and consequently

decreed the suit. The appeal filed by the defendant before

the learned First Appellate Court came to be dismissed. In

the second appeal under Section 100 of Code of Civil

Procedure, the High Court has interfered with the

concurrent findings recorded by both the courts below on

execution of the pro­note by the defendant in favour of the

plaintiff, solely on the ground that attesting witness to the

pro­note has not been examined therefore, the content of

the pro­note has not been proved and consequently has

allowed the second appeal.

2.4 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court the original

plaintiff has preferred the present appeal.

3. Learned counsel appearing on behalf of the appellant –

original plaintiff has vehemently submitted that in the

facts and circumstances of the case the High Court has

erred in upsetting and/or quashing the concurrent

findings recorded by both the courts below on execution of

3 the pro­note by the defendant in favour of the plaintiff, in

exercise of powers under Section 100 of CPC.

3.1 It is submitted that when the findings on facts were

recorded by both the courts below on execution of pro­note

by the defendant in favour of the plaintiff which as such

were on appreciation of evidence on record, more

particularly, the testimony of PW3, the same was not

required to be interfered with by the High Court in exercise

of powers under Section 100 of CPC.

3.2 It is submitted that if the deposition of PW3 is considered

as a whole, it is apparent that PW3 – deed writer has

specifically stated that when he asked the defendant as to

whether he had received the money then the defendant

admitted the receipt of money. It is submitted in that view

of the matter and the deposition of PW1 – plaintiff and the

deposition of deed writer – PW3 the execution of pro­note

and even the content of payment of the consideration

mentioned in the pro­note has been established and

proved. Therefore the High Court has committed a very

serious error in allowing the second appeal and

consequently quashing and setting aside the judgment and

4 decree passed by the learned Trial Court confirmed by the

learned First Appellate Court.

3.3 It is further submitted that even the signature on the pro­

note of the defendant has been established and proved by

the plaintiff by examining handwriting expert – PW2.

3.4 Making the above submissions and relying upon Section 4

of the Negotiable Instruments Act, 1881 (NI Act) and the

findings recorded by the learned Trial Court as well as the

learned First Appellate Court, it is prayed to allow the

present appeal and restore the judgment and order passed

by the learned Trial Court confirmed by the learned First

Appellate Court.

4. While opposing the present appeal the learned counsel

appearing on behalf of the original defendant has

vehemently submitted that as the plaintiff has failed to

prove the execution of pro­note by examining the witness

to the pro­note the High Court has rightly quashed and set

aside the decree passed by the learned Trial Court

confirmed by the learned First Appellate Court.

4.1 It is vehemently submitted by the learned counsel

appearing on behalf of the defendant that as held in the

5 case of Mirza Gorgani Vs. (Firm) Bhola Mal Nihal Chand;

AIR 1934 Lahore 293 (2) burden to prove the execution of

promissory note is on the plaintiff, even if signatures are

admitted and execution of document is denied.

4.2 It is further submitted that even the plaintiff has to prove

the consideration which in the present case plaintiff has

failed to prove. It is submitted that in the facts and

circumstances of the case presumption under Section 118

of the NI Act shall not be attracted as the execution of pro­

note has not been proved.

4.3 It is submitted that as rightly observed by the High Court

non­examination of witness to the pro­note is fatal to the

case of the plaintiff. It is submitted that as observed and

held by this Court in the case of M.S. Narayana Menon

alias Mani Vs. State of Kerala and Anr.; (2006) 6 SCC

39 in the case of negotiable instrument in case of

withholding of relevant evidence adverse inference can be

drawn against the person and presumption can be

rebutted on the bases of preponderance of probabilities.

6 4.4 Making the above submissions it is prayed to dismiss the

present appeal.

5. We have heard learned counsel appearing on behalf of the

respective parties at length and have gone through the

judgment and findings recorded by the learned Trial Court

while decreeing the suit confirmed by the learned First

Appellate Court. We have also gone through the impugned

judgment and order passed by the High Court. We have

also re­appreciated the entire evidence on record including

the deposition of relevant witnesses examined by both the

sides.

5.1 At the outset it is required to be noted that as such there

were concurrent findings of facts recorded by the learned

Trial Court as well as the learned First Appellate Court on

execution of pro­note by the defendant in favour of the

plaintiff. The said findings were on appreciation of entire

evidence on record. Therefore, unless the concurrent

findings recorded by the courts below were found to be

perverse, the same were not required to be interfered with

by the High Court in exercise of powers under Section 100

of CPC. Even the substantial question of law framed by the

7 High Court cannot be said to be as such a question of law

much less substantial question of law. From the impugned

judgment and order passed by the High Court it appears

that as such no specific substantial question of law seems

to have been framed by the High Court. However, it

appears that what was considered by the High Court was

whether the plaintiff has proved the execution of pro­note

and the receipt by leading cogent evidence. The aforesaid

can be said to be a question of facts and cannot be said to

be a question of law much less substantial question of law.

Therefore, as such the High Court has committed a very

serious error in upsetting the findings of facts recorded by

the learned Trial Court confirmed by the learned First

Appellate Court on execution of pro­note by the defendant

in favour of the plaintiff.

6. Even otherwise on merits also the impugned judgment and

order passed by the High Court is unsustainable. The

signature of the defendant on the pro­note has been

established and proved by the plaintiff by examining the

handwriting expert – PW2. No contrary evidence has been

led by the defendant to disprove his signature on the pro­

8 note. Even the execution of pro­note has been established

by the plaintiff by examining the deed writer ­ PW3. Now

so far as the consideration mentioned in the pro­note is

concerned there may be some minor contradictions in the

depositions of PW1 and PW3. However, at the same time if

the deposition of PW3 as a whole is considered, in the

cross­examination it has come out that when the deed

writer asked the defendant that he has received the

consideration, he has admitted the same.

6.1 In view of the above facts and circumstances of the case

emerging from the evidence on record, non­examination of

the witness to the pro­note cannot be held against the

plaintiff. At this stage it is required to be noted that as per

the provision of Section 118 of the NI Act there is a

presumption of consideration in the negotiable instrument

[Section 118(a)]. It is true that such presumption may be

rebutted. However, no rebuttal evidence is led by the

defendant. Under the circumstances also the High Court

has erred in allowing the second appeal and quashing and

setting aside the decree passed by the learned Trial Court

confirmed by the learned First Appellate Court.

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7. In view of the above and for the reasons stated above the

impugned judgment and order passed by the High Court is

unsustainable both, on law as well as on facts and the

same deserves to be quashed and set aside and the same

is accordingly quashed and set aside. The judgment and

decree passed by the learned Trial Court decreeing the suit

confirmed by the learned First Appellate Court is hereby

restored. The present appeal is accordingly allowed. No

costs.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. OCTOBER 14, 2022 [KRISHNA MURARI]

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