RSA No.148 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.148 of 2009 (O & M) DATE OF DECISION: 09.02.2010 **** Surain Singh . . . . Petitioner VS. Hemant Kumar . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Rohit Ahuja, Advocate for the appellant. Mr.H.K. Aurora, Advocate for the respondent. **** RAKESH KUMAR JAIN J. Defendant is in second appeal in a suit for recovery decreed against him by both the Courts below. Plaintiff filed a suit for recovery on the basis of pronote and receipt dated 01.05.2002 for recovery of Rs.3,30,000/- comprising of Rs.2,50,000/- towards principal and Rs.80,000/- as interest. The defendant denied the pronote and receipt and rather alleged that he is a small farmer whereas the plaintiff is a commission agent to whom he used to sell his crop upto year 2001 and since he has started selling his crop at another shop, the plaintiff has been annoyed and file a false suit on the basis of alleged pronote and receipt. The plaintiff filed replication and on the basis of pleadings, issues were framed. RSA No.148 of 2009 -2- The trial Court decreed the suit of the plaintiff holding the due execution of pronote and receipt. The first Appellate Court also endorsed the view of the trial Court by observing as under: “I have perused the evidence on record carefully. In cross-examination defendant admitted that he knows the plaintiff for the last 4-5 years. He admitted that he used to sell crop on his shop. In cross- examination he stated that he has seen the written statement in the file which does not bear his signatures. Later on he stated that if it is written statement, then these are his signatures which itself shows that the witness is intentionally denying his signatures. Further he stated that at point S6, he cannot tell whether these are his signatures. He denied that he has received any notice, whereas the documents especially the acknowledgement shows that he had received the legal notice but no reply was sent by the defendant. Therefore, this fact shows that the defendant borrowed the loan from the plaintiff and executed pronote and receipt. Otherwise also, defendant in the written statement pleaded that pronote and receipt are the result of fraud committed by the plaintiff in connivance with Daljit Singh and Som Shankar but no particulars of fraud have either been pleaded or stated in the affidavit. The onus lies upon the defendant to prove the fraud played upon him but there is no such evidence on record. RSA No.148 of 2009 -3- On the other hand, the plaintiff by bringing attesting witnesses as well as himself into the witness box have duly proved the execution of the pronote and receipt. Further the evidence of the plaintiff is supported by the opinion of the Document Expert PW3. There is nothing in the cross-examination of PWs to make their statements unreliable. There is suggestion to PW-1 Daljit Singh that the person who sell the crop at the shop of Hemant Kumar also borrowed money from him. There is suggestion that whenever he gives loan amount, he gives it on pronote or by obtaining signatures on the bahi. The non-production of account books in no way effects the case of the plaintiff as he has given the explanation that this amount has been given from his personal account and not from the account of the firm. Therefore, he has not entered the same in the account books. Therefore, from the above discussion, I find that the plaintiff has duly proved the execution of the pronote and receipt Ex.P1 and Ex.P2 and the version of the defendant regarding mere denial is not believable. The statement of DW1 of mere denial is insufficient to rebut the oral as well as documentary evidence led by the plaintiff. Therefore, I find that the findings of the learned lower court and the judgment and decree dated 9.1.2008 passed by the learned Addl. Civil judge, Senior Division, Patiala are correct RSA No.148 of 2009 -4- and as per law and does not require any interference from this Court. Finding no merit in the appeal, the same is dismissed with costs.” It is argued by learned counsel for the appellant that the age of ink on pronote and receipt in question should be sent for examination in the Forensic Science Laboratory. He has also submitted that oral evidence is not inconsonance with the finding given by the Courts below. It is, however, admitted by learned counsel for the appellant that no handwriting and finger print expert was examined by the appellant in respect of the signatures available on the pronote and receipt. It is also admitted that no details of fraud have either been pleaded or stated in his affidavit pursuant to which the alleged pronote and receipt were executed on behalf of the appellant. After hearing learned counsel for the parties, I do not find any question of law much less substantial involved in the present appeal as the finding recorded by both the Courts below is based upon appreciation of evidence and is basically a finding of fact, which can not be challenged by the appellant without any substantial question of law involved raised as envisaged under Section 100 of the Code of Civil Procedure, 1908. Hence, the present appeal is dismissed though without any order as to costs. (RAKESH KUMAR JAIN) February 09, 2010 JUDGE vivek