1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 92 OF 2009 Narayan Trambak Burkule ........Appellant versus Kailas ramchandra Dhoble ........ Respondent. Mr. P.B. Kulkarni i/b P.S. Dani adv. for the Appellant None for the respondent CORAM: A. P. DESHPANDE, J. DATED : 9th FEBRUARY, 2009. P.C.: 1. The appellant is the original plaintiff whose suit has been dismissed by a judmgent and decree dated 20-10-2008 by Civil Judge Senior Division. The appellant had brought the suit on the pleadings that in the month of January 2001 the defendant requested to advance him a handloan of Rs. 5,50,000/- and agreed to repay the said amount within six months. The appellant advanced hand loan of Rs. 5,50,000/- to the respdt. It is then contended that after six months when the plaintiff/appellant demanded the amount, the respondent handed over a cheque dated 4-8-2008 bearing no. 075334 of Nashik Merchant Co-op. Bank Ltd. from S.B. Account No. 1597 for Rs.5,50,000/-. It is then contended that on instructions from the 2 respondent the cheque was deposited in September 2001 and it came to be dishonoured with remarks “referred to drawer”. Thus the appellant instituted proceeding under section 138 of the N.I. Act vide criminal case no.6331/01 and also instituted the present suit for recovery of the amount. 2. The defendant by filing the written statement pleaded that the cheque in question was a blank cheque and was handed over to one Mrs. Usha Devidas Patil by way of security, as the husband of the said lady has stood as surety for the loan amount in some other transaction and the cheque was so issued with a view to secure payment of the amount to Usha Patil. It was categorically pleaded that when the cheque was handed over to Usha Patil in the year 1999, neither the amout nor the name of the payee or the date was mentioned. It was also contended by the respondent that there was no consideration passed on to the respondent under the cheque in question. It was also categorically pleaded that when in the year 1999, the respondent apprehended misuse of the cheque he issued notice through his advocate dated 7-12-999 to the present plaintiff/appellant and Usha Patil and demanded the return of the cheque. The defendant also claimed to have informed the bank on 17-12-1999 itself, not to encash the cheque. Hence on a notice of stop payment, the payment was not made by the bank. Thus the case of the defendant is that on 4-8-2001, he did not 3 have the cheque with him for being issued in favour of the present appellant, rather it was a cheque issued in favour of one Usha Patil way back in 1999. A further plea was raised that the appellant is a money lender and has instituted proceedings against many persons and had also filed criminal cases under section 138 of N.I.Act. 3. On the above referred pleadings, the court below framed issues and recorded its findings that the plaintiff has failed to prove that he has paid a sum of Rs. 5,50,000/- to the defendant in January 2001 by way of handloan. To reach the said conclusion, the trial court has relied upon the evidence led by the parties and the admissions given by the present appellant. The appellant admitted that he did not have that much amount when he allegedly handed over the same to the respondent and had borrowed the amount from some other persons. He failed to name the said persons during the cross examination. It is also admitted by the appellant in his evidence that said amounts are not reflected in the income tax return nor did he maintain the accounts, indicating the payment of amount. The trial court also held that the defendant has proved that he has handed over a blank cheque in favour of Usha Patil and Usha Patil in turn delivered the same to the plaintiff. A finding was recorded that the cheque has been misused. Touching the issue of money lending, there has been cross examination of the appellant and it 4 has come on record that the appellant is being prosecuted for the offences under the Money Lending act for carrying on the business without licence. The appellant's admissions are brought on record. It reveals that the appellant claims to have advanced loan to Usha Patil, Karkamkar, Atul Bhalerao, Minakshi Bhalerao, Ashok Sonawane, Shaikh Khalil Ajgarkhan Pathan, Trambak Walunj, Deepak Patil, Milind Mali, Shyam, Maind. Mohan Kale. Minakshi Nikam, Kalpana Sukenkar etc. He also admitted that he had instituted proceedings against various parties under section 138 of N.I. Act wherein huge sums are stated to have been given as handloans to the said parties. It has come on record that amounts in the sum of over few lacs are stated to have been advanced by way of handloan and atleast half a dozen cases are filed by the appellant which are pending in the criminal court. Though sufficient material has been placed on record, the court below has not recorded a finding that the appellant is a money lender. I am of the view that such a finding could have been recorded. Be it as it may, the above referred evidence has been considered by the court below as sufficient to rebut the presumption available to a holder of an instrument, and being of the view that no consideration has passed under the cheque in question, has dismissed the suit. What is pertinent to note is that when the cheque is alleged to have been handed over by the defendant to the plaintiff, the 5 defendant did not have the cheque in his custody and in the year 1999 itself defendant has issued notice to the present plaintiff so also Usha Patil and instructed the bank to stop the payment. 4. From the circumstanes that are brought on record, it is crystal clear that the alleged transaction of hand loan is not a genuine transation as no consideration has passed. If the appellant admits that he did not have money and had raised it from other persons for advancing hand loan, then it is for him to show the source from where he procured the amount and failure on the part of the appellant to name the persons from whom he borowwed the amount speak volumes about the bonafides of the appellant. As no case is made out, the impugned judgment and decree passed by the trial court does not warrant any interference at the hands of this court. Hence there being no merit in the appeal the same is dismissed. (A. P. DESHPANDE, J.)