R.S.A.No.2023 of 2011(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.2023 of 2011(O&M) Date of decision: 9.5.2011 M/s Gurnam Singh Amarjit Singh, Commission Agents ......Appellants Versus Hakam Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.K.R.Dhawan, Advocate, for the appellants. **** SABINA, J. Plaintiff had filed a suit for recovery basing reliance on a cheque issued by the defendants. The case of the plaintiff, in brief, was that the defendants were liable to pay the amount in question to the plaintiff. In order to discharge their liability, defendants issued a cheque dated 25.5.2002 for a sum of ` 1,73,000/- in favour of the plaintiff. The cheque was duly signed by defendant No.3, Amarjit Singh, being partner of the firm. However, when the said cheque was presented for encashment, the same was dishonoured with the remarks “insufficient funds”. A complaint had been filed by the plaintiff under R.S.A.No.2023 of 2011(O&M) 2 Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'). Defendants, in their written statement, denied the contentions in the plaint. It was averred that the plaintiff had access to their shop and had stolen the cheque in question. The issuance of cheque by the defendants in favour of the plaintiff was denied. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the recovery of ` 2,66,420/- on the basis of cheque dated 25.5.2002 issued by the defendants in favour of the plaintiff, along with interest as prayed for? OPP. 2. Whether the plaintiff has got no locus standi to file the present suit ? OPD 3. Whether the cheque is false and fabricated document? OPD 4. Relief.” The Civil Judge (Jr.Divn.) decreed the suit of the plaintiff vide judgment and decree dated 3.3.2010. Aggrieved by the said judgment and decree, defendants preferred an appeal and the same was dismissed vide judgment and decree dated 8.1.2011 passed by the Additional District Judge. Hence, the present appeal by the defendants. Learned counsel for the appellants has submitted that the Courts below have erred in decreeing the suit of the plaintiff merely because the defendants had failed to prove their plea. In fact, it was for the plaintiff to plead and prove his case. In support of his R.S.A.No.2023 of 2011(O&M) 3 arguments, learned counsel has placed reliance on LIC of India and another vs. Rampal Singh Bisen 2010 (2) RCR (Civil) 459, wherein it was held that failure to prove the defence did not amount to an admission nor does it reverse or discharge the burden of proof of the plaintiff. After hearing learned counsel for the appellants, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The plaintiff had filed a suit for recovery basing reliance on cheque Ex.P-1 issued by the defendants in his favour. In order to prove his case, the plaintiff himself appeared in the witness box as PW-2. It had been noticed by the learned Additional District Judge, in para 11 of its judgment, that no suggestion had been given to the plaintiff when he appeared in the witness box during cross- examination that he had stolen the cheque in question. The cheque was issued by the defendants in favour of the plaintiff. However, when the said cheque was presented for encashment, the same was dishonoured for insufficient funds vide memo Ex.P-3. The complaint filed by the plaintiff under Section 138 of the Act was dismissed. Learned Additional District Judge, in para 13 of its judgment, has noticed that the complaint in question had been dismissed on technical grounds as the cheque had been presented for encashment in a wrong bank account of the defendants. Since the plaintiff had been successful in proving the due execution of the cheque Ex.P-1, the Courts below have rightly decreed the suit of the plaintiff. The present suit has not been R.S.A.No.2023 of 2011(O&M) 4 decreed merely because the defendants had been unable to prove their plea that the cheque in question had been stolen but the suit had been decreed as the plaintiff had been successful in proving his case, whereas, the defendants had failed to rebut the evidence led by the plaintiff. Hence, the judgment relied upon by learned counsel for the appellants fails to advance the case of the appellants. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE May 09, 2011 anita