RSA No.3651 of 2010 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3651 of 2010 (O&M) Date of decision: July 6, 2011. Hari Chand & Sons ... Appellant(s) v. Lashkar Singh ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Sherry Singla, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. C.M. No.10735-C of 2010 This is an application for condonation of delayof 67 days in filing the appeal. For the reasons stated in the application, the delay is condoned. CM application is disposed of. C.M. No.10736-C of 2010 For the reasons stated in the application, it is allowed and the applicant-appellant is permitted to make good the deficiency in court fee. The application stands disposed of. C.M. No.10737-C of 2010 Exemption, as prayed for, is granted. The application stands disposed of. R.S.A. No.3651 of 2010 Having failed in both the courts below, the plaintiff-appellant has knocked the doors of this Court by filing the present regular second appeal. Plaintiff-appellant, firm through its partner Ram Kumar, RSA No.3651 of 2010 -: 2 :- instituted a suit for recovery of Rs.1,70,000/-, i.e., Rs.1,50,000/- as principal and Rs.20,000/- as an interest against the defendant. The Plaintiff firm was engaged in the business of commission agent and used to facilitate sale and purchase of foodgrains. The defendant had borrowed an amount of Rs.1.50 lacs on 21.10.2002 from the plaintiff firm after executing a pronote and issuing a receipt thereof duly attested by the marginal witnesses. Its entry was also made in the account books of the plaintiff firm and was duly thumb marked by the respondent-defendant. It was pleaded that respondent-defendant had undertaken to repay the loan amount at the time of sale of wheat crop of 2003. On his failure to do so, the instant suit for recovery of principal amount and interest, accrued thereon, was filed. On notice, the defendant caused appearance and filed a written statement stating that he was having good relations with Raj Kumar, partner of the firm as he used to purchase produce of the defendant and while making sale proceeds of the produce, he used to obtain his thumb impression on the account books and other papers. It was specifically denied that the defendant had borrowed any amount from the plaintiff. It was stated that the plaintiff had prepared the alleged pronote and receipt fraudulently in connivance with other partners of the plaintiff firm. After completion of the pleadings, the trial court had drawn the following issues:- 1. Whether the defendant borrowed a sum of Rs.1,50,000/- from the plaintiff on 21.10.2002 @ 1.5% per month interest and executed pronote and receipt in this regard in favour of the plaintiff on the say day? OPP 2. Whether plaintiff is entitled to recover a sum of RSA No.3651 of 2010 -: 3 :- Rs.1,70,000/- including interest of Rs.20,000/- @ 1.5 PM along with future interest at the same rate w.e.f. 21.6.2003 till its realization? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the alleged pronote and receipt are forged and fabricated documents and without consideration? OPD 6. Relief. The trial court taken up together issues No.1, 2 and 5 being inter- linked and to avoid repetition of discussion. Plaintiff-firm adduced its oral as well as documentary evidence in support of its claim. It examined Om Parkash, one of the attesting witness to the pronote and receipt, appeared as PW1, Raj Kumar as PW2 and Dr. Inderjit Singh, Document Expert as PW3. And closed its evidence. Defendant himself appeared and closed his evidence. The trial court held that the presumption under Section 118 of the Negotiable Instruments Act regarding the validity of pronote P1 and receipt P2 is rebuttable. The trial court took into consideration not only pronote and receipt Ex.P1 and P2 but also Rokra Bahi dated 21.10.2002 which was proved as Ex.P3 along with its Punjabi translation as P3/A, the statement of accounts for the year 2002-03 Ex.P4 along with its Punjabi translation Ex.P4/A, statement of accounts for the year 2003-04 Ex.P5 and its translation Ex.P5/A, along with all the statements of accounts of subsequent years 2007-08, which were duly exhibited. The trial court, to RSA No.3651 of 2010 -: 4 :- hold that the plaintiff has filed to prove disbursement of the loan, relied upon the following circumstances:- (A) Admittedly the defendant has been selling his produce at their shop since the year 1966. The court held that the plaintiff had failed to produce account books for the year 2002-03 and he has also not proved J- form book pertaining to the year 2002. (B) Argument raised by counsel for the defendant that proper account books were not maintained in the ordinary course of business was also given due credence. The trial court examined various entries made and names of the account holder and also found that in the bahi, two pages were blank, without page marking and number of pages have been left unused. Taking into account various suspicious circumstances, entry in the Rokra Bahi was discarded. the trial court also doubted the authenticity of pronote and receipt P1 and P2. The testimony of PW1 Om Parkash was ruled out of consideration holding that he is a procured witness. The trial court noticed the fact that PW1 Om Parkash admitted that he might have appeared as a witness of plaintiff in other cases. (C) The trial court minutely examined the testimony of Inderjit Singh, hand-writing and finger print expert and held that this witness admitted that he cannot mark 9 points of stated similarities of photographs of thumb impressions. Due to various reasons stated in the judgment, the trial court doubted the testimony of the witness by holding that “... in these circumstances, report of PW-3 Dr. Inderjit Singh has become highly doubtful because the entire exercise of inspecting the file as well as taking of photographs was made from the photostat copy lying on the file, so far as Bahi and account books are concerned”. RSA No.3651 of 2010 -: 5 :- Thus, issues No.1 and 2 were decided against the plaintiff and issue No.5 in favour of the defendant. The other two issues, i.e., issues No.3 and 4 were decided in favour of the defendant. After appreciating the evidence threadbare, the suit was dismissed by the trial court. The lower appellate court concurred with the findings returned by the trial court. Shri Sherry Singla, Counsel appearing for the appellant, has stated that only substantial question of law which calls for attention of this Court is whether evidence led by the plaintiff has been rightly appreciated by both the courts below or not. Shri Singla has stated that the entry made in the Rokra Bahi Ex.P3 has been taken as an unusual circumstance to discard pronote and receipt Ex.P1 and P2 and by doing so, the courts became oblivious of the fact that there is presumption regarding the validity of this evidence under Section 118 of the Negotiable Instruments Act. I am unable to accept this contention. The trial court was conscious of this fact and has rightly stated that presumption under Section 118 of the Negotiable Instruments Act is one which is rebuttable. After appreciating the evidence, the view formulated by the trial court is one which is possible on the facts of the case. This view has been affirmed by the lower appellate court. This Court in Regular Second Appeal will not disturb the concurrent finding of fact, simply because another view can be formulated. The courts below have followed well accepted cannons of appreciation of evidence. Therefore, the projected substantial question of law, in no way, arises in the present appeal. Hence, there is no merit in this appeal and the same is dismissed in limine. [Kanwaljit Singh Ahluwalia] July 5, 2011. Judge kadyan