Regular Second Appeal No. 3796 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3796 of 2010 Date of decision : May 09, 2011 Vishnu Kumar ....Appellant versus Smt. Prem Lata and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Varun Gupta, Advocate for Ms. Kanwaljeet Kaur, Advocate, for the appellant L.N. Mittal, J. (Oral) Plaintiff having lost in both the courts below has come up by way of instant second appeal. Appellant-plaintiff filed suit against defendant Ram Singh (since deceased and represented by respondents as his legal representatives) alleging that on 1.4.2002 defendant Ram Singh borrowed Rs 32,000/- from the plaintiff and executed pronote-cum-receipt for the same and agreed to repay the same with interest @ 2% per annum but the defendant neither paid the principal amount nor paid interest. Accordingly, the plaintiff sought recovery of Rs 43,000/- i.e. Rs 32,000/- as principal amount and Rs 11,000/- as interest. Regular Second Appeal No. 3796 of 2010 -2- The defendant broadly denied the plaint allegations. The defendant denied having borrowed any money from the plaintiff or having executed any pronote-cum-receipt for the same. The defendant alleged that he had purchased some clothes from the plaintiff on credit for which the plaintiff served notice on the defendant and thereupon the defendant made payment of the said amount and nothing remained due. However, at that time, the plaintiff obtained thumb impressions of the defendant on blank pronote. Various other pleas were also raised. Learned Civil Judge (Junior Division), Rewari vide judgment and decree dated 27.8.2009 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Rewari vide judgment and decree dated 7.5.2010. Feeling aggrieved, the plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiff himself stepped into witness box as PW1 and examined Ajay Kumar PW2. Both of them broadly stated according to the plaint averments. On the other hand, respondents no. 3 and 1 i.e. son and widow of original defendant appeared as DW1 and DW2. They also examined Hoshiyar Singh DW3. All of them broadly stated according to defendant's version. Plaintiff's oral bald statement is not corroborated by any other cogent evidence. Statement of Ajay Kumar PW2 has been rightly discarded because he is not witness or signatory to the pronote. On the other hand, Regular Second Appeal No. 3796 of 2010 -3- one Partap Singh attested the pronote-cum-receipt as witness but said Partap Singh has not been examined as witness by the plaintiff. Consequently, adverse inference has been rightly drawn against the plaintiff. On the contrary, statements of plaintiff and Ajay Kumar have also been found to be contradictory and therefore, not reliable. In addition to the aforesaid, the plaintiff himself admitted that he had obtained thumb impressions of defendant Ram Singh on blank pronote-cum-receipt. However, plaintiff came out with new version that he had returned the same to the defendant. In view of aforesaid admission of the plaintiff also, the impugned pronote-cum-receipt becomes highly suspicious. In this view of the matter, self serving oral statement of the plaintiff is not sufficient to prove his case particularly because he has not examined Partap Singh witness of the pronote-cum-receipt in question. Learned counsel for the appellant contended that there is presumption under section 118 of the Negotiable Instruments Act, 1881 that pronote was executed for consideration. There is no dispute with the legal preposition but the same is not applicable to the facts of the instant case. Aforesaid presumption would arise only if execution of the negotiable instrument i.e. pronote is proved. In the instant case, however, plaintiff- appellant has failed to prove execution of the impugned pronote by the defendant. Consequently, plaintiff-appellant cannot avail of the presumption under section 118 of the Negotiable Instruments Act,1881. Learned counsel for the appellant also referred to some weaknesses of the case of the defendant. However, plaintiff cannot take Regular Second Appeal No. 3796 of 2010 -4- advantage thereof. The plaintiff has to prove his own case by depicting that the defendant had borrowed Rs 32,000/- from the plaintiff and executed the impugned pronote-cum-receipt. Plaintiff has, however, failed to do so. There is concurrent finding recorded by the courts below against the plaintiff-appellant. The said finding is based on analysis of evidence and is supported by reasons. Consequently, the said finding does not warrant interference in second appeal nor the said finding is shown to be illegal or perverse or based on misreading or misappreciation of evidence. No question of law much less substantial question of law arises for adjudication in the instant second appeal. On the contrary, fate of the lis depends on finding of fact for which lower appellate court is final court. Accordingly, I find no merit in the instant second appeal which is, therefore, dismissed in limine. ( L.N. Mittal ) May 09, 2011 Judge 'dalbir'