R.S.A. No. 2922 of 2005 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2922 of 2005 Date of Decision : 11.5.2009 Chhiatta Singh & others .......... Appellants Versus Mohar Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. B.S. Sidhu, Advocate for the appellants. Mr. Gulshan Sharma, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 29.4.2005, passed by the learned Courts below, dismissing the suit for recovery filed by the plaintiff / appellants. The plaintiff brought a suit claiming recovery of an amount of Rs. 1,47,620/-, on the basis of pronote and receipt. It was the case of the plaintiff / appellant, that a loan of Rs. 1,21,000/- (Rupees one lac and twenty one thousand only) with interest @ 2% per month, was given to the defendant / respondent. The pronote and receipt were executed in proof thereof. On notice, the suit was contested, plea was taken, that the receipt and pronote were outcome of fraud and misrepresentation. No R.S.A. No. 2922 of 2005 2 transaction of loan had taken place. The case set up by the defendant / respondent was, that the signatures of the defendant / respondent have been used by the plaintiff / appellant, which were taken for the purpose of civil suit, which was pending, and collectively contested. In support of the case set up, the plaintiff examined PW1 Amarjit Singh Gill, Advocate, who was said to be scribe of the pronote and receipt as well as one of the attesting witness Sonu, whereas the second attesting witness Hari Ram was examined by the defendant / respondent to prove his case. The learned Courts below recorded a concurrent finding, that the execution of pronote, receipt and passing of consideration, was not proved. The witnesses produced by the plaintiff / appellant were not consistence with regard to the execution of documents and that there were material contradictions in their statements. Shri Amarjit Singh Gill, Advocate PW-1, who was the scribe of the pronote and receipt, categorically admitted, that he had not signed the document as a scribe. Whereas PW-1 in his statement stated, that witness signed the pronote and receipt in presence of the defendant / respondent and that the consideration amount was said to have been given after the pronote and receipt were read over and explained. However, Sonu the attesting witness did not support this version and stated in cross-examination, that the pronote and receipt had already been prepared by the time he reached the spot. That DW2-Hari R.S.A. No. 2922 of 2005 3 Singh, the other attesting witness, did not support the execution of the pronote and receipt. Rather he supported the case set up by defendant / respondents. The learned counsel for the appellant contends that the appeal raises the following substantial questions of law :- 1. Whether the findings of the learned Courts below in rejecting the pronote and receipt are perverse and therefore not sustainable in law ? 2. Whether the learned Courts below were bound to decree the suit on the failure of the defendant / respondent to prove fraud and misrepresentation ? In support of the substantial questions of law, the learned counsel for the appellant vehemently contends, that due execution of the pronote was proved by the scribe and one of the attesting witnesses. It is also the contention of the learned counsel for the appellant, that even Hari Singh had not disputed his signatures on the pronote, thus, due execution of the pronote was proved and the presumption was required to be drawn, that the pronote was executed for consideration. It was for the defendant/ respondent to prove the case set up by leading cogent evidence. The reference was made to the statement made by the defendant / respondent in the Court, where he admitted, that he had come to the Court taking liquor. The contention of the learned counsel for the appellant is, that the defendant / respondent, could not be trusted. Therefore the finding of the learned Courts below being perverse and is outcome of misreading of evidence, are liable to be set aside. R.S.A. No. 2922 of 2005 4 In support of the contention raised, the learned counsel for the appellant placed reliance on the judgment of this Court in the case of Hans Raj & Ors. Vs. Surinder Singh & Ors. 1997(1) Civil Court Cases 407 (P&H), wherein this Court has been pleased to lay down as under :- “20. I do not find any merit in the contention of the learned counsel for the appellant that the presumption under Section 118 of the Negotiable Instruments Act was not available to the plaintiff in the present case. There is a clear recital in the pronotes regarding the receipt of the suit amount by the appellant. As stated herein above, appellant Hans Raj in his own handwriting had written on the pronotes “Rs.65,500/- Naked Vasul Pae”. One of the witnesses, namely, Madan Gopal Deed Writer had clearly stated in his statement that he scribed the Pronotes at the instance of Hans Raj and Hans Raj had himself signed on the revenue stamp on the pronote that he had received Rs. 65,500/- in cash. There was no gross-examination by the defendant on this point. Since, the execution of the pronotes has been fully proved, it will have to be presumed that the appellant had received consideration mentioned in the pronotes. The appellants have failed to prove that in fact they had not received any consideration. The view I have taken finds full support from the judgment of the Supreme Court in the case of Rani (supra). This contention is also rejected.” On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellant. It may be noticed, that in the cross-examination PW-1 categorically admitted, that he had not signed the document as scribe. R.S.A. No. 2922 of 2005 5 Furthermore the statement of PW-1 was contradicted by the only attesting witness examined by the plaintiff / appellant i.e. Sonu, who did not support the passing of the consideration and execution of the document. He stated that pronote and receipt stood already prepared, when he reached the spot. He claimed to have simply signed. These proved facts coupled with the fact that Hari Singh, other witness did not support the case set up by the plaintiff, rather supported the case set up by defendant / respondent. No fault, therefore, can be found with the finding recorded by the learned Courts below. Even otherwise, this Court in exercise of powers under Section 100 of the Code of Civil Procedure this Court cannot interfere with the concurrent finding of fact recorded by the learned Courts below, merely because other view than the one taken by the learned Courts below, is also possible. For the reasons stated above, the substantial questions of law are answered against the appellants. No merit. Dismissed. 11.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE