Regular Second Appeal No.3696 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.3696 of 2008 Date of decision:10.08.2009 Atma Singh s/o Gurdial Singh r/o village Daraka, Tehsil and District, Barnala. ..... Appellant. Versus Lachhman Dass s/o Walaiti Ram, r/o Tapa, Tehsil and District Barnala. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr.Suresh Goel, Advocate for the appellant. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 23.10.2007, rendered by the Court of Additional District Judge, Barnala, vide which it accepted the appeal against the judgment and decree dated 17.01.2007, rendered by the Court of Regular Second Appeal No.3696 of 2008 -2- Additional Civil Judge (Senior Division), Barnala, dismissing the suit. 2. The facts, in brief, are that, the defendant (now appellant) received a sum of Rs.1,40,000/- from the plaintiff, (now respondent) and executed the pronote and receipt on 28.03.2001, in his favour. The defendant (now appellant) agreed to return the amount, in question, with interest at the rate of 2% per month. It was stated that the defendant was asked many a time, to repay the amount with interest @ 12% per annum, but to no avail. Ultimately, a suit for recovery was filed. 3. The defendant, put in appearance, and contested the suit, by way of filing written statement. It was stated that the plaintiff did not borrow any amount, referred to above, nor did execute the pronote and receipt dated 28.03.2001, in favour of the plaintiff (now respondent). It was further stated that the pronote and Regular Second Appeal No.3696 of 2008 -3- receipt dated 28.03.2001 were forged and fabricated documents. It was further stated that the pronote and receipt suffer from material alterations and could not be read into evidence. It was further stated that the pronote was without consideration. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues, were framed by the trial Court :- “1- Whether the defendant executed a valid pronote and receipt in favour of the plaintiff ?OPP 2- Whether consideration amount passed to the defendant ?OPP 3- Whether the plaintiff is entitled to recover the suit amount alongwith interest, if so, at what rate ?OPP 4- Whether there are material alterations in the pronote and receipt, if so, its effect ?OPD Regular Second Appeal No.3696 of 2008 -4- 5- Whether the plaintiff is doing the business of money lender ?OPD 6- Whether the plaintiff has no locus standi to file the present suit ? OPD 7- Relief.” Issue No.2 was re-casted vide order dated 01.09.2007, as under:- “Whether the pronote and receipt are without consideration?OPD” 5. The parties led oral as well as documentary evidence, in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court dismissed the suit, as stated above. 6. Feeling aggrieved, an appeal was preferred by the plaintiff/appellant, which was accepted by the Court of Additional District Judge, Barnala, vide Regular Second Appeal No.3696 of 2008 -5- its judgment and decree dated 23.10.2007. 7. Feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the defendant/appellant. 8. I have heard the Counsel for the appellant, and have gone through and perused the documents on record, carefully. 9. The Counsel for the appellant submitted that the trial Court was right in coming to the conclusion that the pronote was without consideration. He further submitted that the statement of account of the plaintiff was produced, which showed that he had no amount in the sum of Rs.1,40,000/- in his account, so as to pay the same, by way of loan, to the defendant, on 28.03.2001. He further submitted that even three stamps affixed on the pronote, were not properly cancelled. He further submitted that the Appellate Court was wrong, in coming to Regular Second Appeal No.3696 of 2008 -6- the conclusion, that the pronote was for consideration. He further submitted that the judgment and decree of the First Appellate Court, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion,the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Regular Second Appeal No.3696 of 2008 -7- Court, and first Appellate Court, even if, the same are grossly erroneous as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. It is evident from the judgment of the Appellate Court, that the execution of pronote, (Ex.P1) and and receipt,(Ex.P-2) was proved by Charan Dass, an attesting witness of the receipt, who appeared, as PW1, and Lachman Dass, plaintiff, who appeared as PW-2. Both of them also stated that a sum of Rs.1,40,000/- was paid to the defendant, at the time of execution of pronote and receipt, referred to above. The defendant, when appeared, as his own witness, during the course of cross- examination, stated that he could not Regular Second Appeal No.3696 of 2008 -8- admit or deny that signatures at Marks A and B on pronote, (Ex.P-1) and receipt (Ex.P-2), related to him. No doubt, the statement of account of the plaintiff, was produced, which showed that he did not have the money, in his bank account, on that day, so as to enable him to advance loan, in the sum of Rs.1,42,000/-. However, the plaintiff was also a partner of firm M/s Walaiti Ram Lachhman Dass. The first Appellate Court, on going through the statement of account of the aforesaid firm of Oriental Bank of Commerce, Branch Tapa, came to the conclusion, that a sum of Rs.1,42,000/- was withdrawn by the said Firm. The First Appellate Court was, thus, right in holding that it was not necessary that the plaintiff must be having the requisite amount, which was advanced as a loan, in his personal account. Since he was a partner of the aforesaid firm, he could withdraw the money from the account of the firm, for payment as loan, to the Regular Second Appeal No.3696 of 2008 -9- defendant. Under these circumstances, the First Appellate Court, in my opinion, was right in coming to the conclusion that pronote, (Ex.P-1) was for consideration. Even otherwise, there is a statutory presumption operating under Section 118(a) of the Negotiable Instruments Act, 1881 (amended upto date) that once the execution of the pronote, is proved, the same is presumed to be for valid consideration. No doubt, such statutory presumption is rebuttable . However, in the instant case, the defendant, (now appellant), failed to rebut the said presumption. In Bharat Barrel and Drum Manufacturing Co. v. Aman Chand Pyarelal, AIR 1999 S.C. 1008, the Apex Court held as under:- “12. Upon consideration of various judgments, as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Regular Second Appeal No.3696 of 2008 -10- Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration, by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof, showing that the existence was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff, who will be obliged to prove it as a matter of fact, and upon his failure, to prove would dis-entitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of consideration can be either direct or by bringing on record, the preponderance of probabilities by reference to the circumstances, upon which, he relies. In such an event the plaintiff is entitled under law, to Regular Second Appeal No.3696 of 2008 -11- rely upon all the evidence led in the case, including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence, as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant Regular Second Appeal No.3696 of 2008 -12- has to bring on record such facts and circumstances, upon consideration of which the Court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard.” 11. The principle of law, laid down, in the aforesaid case, is fully applicable to the instant case. The findings of fact, recorded by the First Appellate Court, to the effect that a sum of Rs.1,40,000/- was paid by the plaintiff, to the defendant, as loan on 28.03.2001; that he (defendant) executed the pronote, (Ex.P-1) and receipt, (Ex.P-2) in his (plaintiff) favour on that day; that the Regular Second Appeal No.3696 of 2008 -13- pronote was for consideration; that it was not proved that the pronote and receipt were forged and fabricated documents; and that the plaintiff was entitled to the recovery of amount with interest, being based on the correct appreciation of evidence and law on the point, do not suffer from any illegality or perversity. The same do not warrant any interference. 12. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 13. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) August 10, 2009 Judge dinesh