RSA No.2777 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2777 of 2011 (O&M) Date of decision 21.7.2011. Major Singh ...... Appellant. versus Kirpal Singh ...... Respondent. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Ajay Pal Singh, Advocate for the appellant. K.C.PURI . J. This is an appeal directed by defendant/appellant against the judgment dated 17.3.2011 passed by Shri M.S.Chauhan, learned District Judge, Sangrur vide which the appeal preferred by the defendant/appellant against the judgment and decree dated 2.2.2010 passed by Shri Muneesh Arora, Additional Civil Judge (Senior Division), Dhuri was dismissed. 2. Kirpal Singh filed suit for recovery of Rs.2,35,200/- on the basis of pronote and receipt dated 1.11.2006 along with interest. It is pleaded that defendant executed pronote and receipt dated 1.11.2006 for a sum of Rs.2,10,000/- and interest was agreed at the rate of 1.50% per RSA No.2777 of 2011 2 month. The pronote and receipt were executed for the purpose of taking loan 2,10,000/-. The amount has not been paid. Hence this suit. 3. Upon notice, defendant filed written statement denying the contents of the plaint. It is pleaded that pronote and receipt are forged and fabricated documents. The defendant used to sell his produce through the commission agency of Deep Trading Company, Dhuri. Gurwinder Singh and Paramjit Singh are its partners. The defendant used to borrow certain amounts from them from time to time and they used to obtain signatures of the defendant on blank pronotes and receipts. No pronote and receipt were executed in favour of the plaintiff. 4. Replication was filed, denying the contents of written statement and reiterating the stand taken in the plaint. 5. From the pleadings of the parties, following issues were framed :- 1. Whether the plaintiff is entitled for recovery of Rs.2,35,200/- along with interest ?OPP 2. Whether the pronote and receipt are forged and fabricated documents ?OPD 3. Whether the receipt was issued to the defendant regarding the settlement of the entire account by Paramjit Singh to the defendant, if so its effect ?OPD 4. Relief. 6. To prove his his case, plaintiff examined Gurwinder Singh as PW-1 and appeared as his own witness as PW-2 and closed his evidence. 7. In rebuttal Major Singh defendant appeared as his own witness and has also examined DW-2 Mohan Singh. 8. The learned trial Court has taken up issue Nos.1 and 2 together RSA No.2777 of 2011 3 and returned the finding on both these issues in favour of the plaintiff and against the defendant. Issue No.3 was also decided against the defendant for want of any evidence. 9. In view of the finding on the aforesaid issues, suit of the plaintiff was decreed for recovery of Rs.2,10,000/- along with interest @ 12% per annum from the date of pronote and receipt till the date of judgment and decree. Future interest at the rate of 6% per annum from the date of decree till realization was also allowed vide judgment and decree dated 2.2.2010 passed by Shri Muneesh Arora, Additional Civil Judge (Senior Division), Dhuri. 10. Feeling dissatisfied with the judgment and decree dated 2.2.2010, referred to above, the defendants preferred the First Appeal, which was dismissed by the District Judge, Sangrur vide judgment and decree dated 17.3.2011. 11. Feeling still dissatisfied with the aforesaid judgment and decree dated 2.2.2010 and judgment and decree dated 17.3.2011, the defendant-appellant has preferred the present regular second appeal. 12. The appellant in paragraph No.9 of the grounds of appeal has mentioned that following substantial questions of law have arisen :- (i) Whether the presumption under section 118 of the Negotiable Instruments Act is rebuttable particularly when the subscribe of the pronote and receipt not examined ? (ii) Whether the presumption under section 118 of the Negotiable Instrument Act is rebuttable if the amount of consideration was not shown in Income Tax Return ? RSA No.2777 of 2011 4 (iii) Whether the non-existence of the material alteration made in the document makes the documents void ? (iv) Whether the adverse inference be drawn if the party withheld the best evidence ? 13. The main stress of the counsel for the appellant is that scribe of the pronote and receipt has not been examined and on that account the execution of pronote and receipt is not proved. It is further submitted that in the income tax return, the amount of pronote and receipt has not been mentioned. Learned counsel for the appellant has further submitted that Gurwinder Singh is the partner of firm M/s Deep Trading Company, Dhuri. The appellant has been selling his product at the said firm. The accounts have been cleared with the said firm. Gurwinder Singh partner of the said firm in connivance with the plaintiff and scribe has filed false claim against the appellant. No pronote and receipt were executed by the appellant. 14. I have carefully considered the submission made by the learned counsel for the appellant. 15. The questions mentioned above are not the questions of law muchless the substantial questions of law arisen in the present appeal. The claim of the plaintiff is based upon pronote and receipt. Both the Courts below have given a concurrent finding of fact that plaintiff has advanced the loan to defendant/appellant and has been able to prove the execution of pronote and receipt and passing of consideration. That being a finding of fact cannot be assailed in the regular second appeal. All the questions raised above, by the learned counsel for the appellant were also raised even before the trial Court but the same do not find favour. The defendant has failed to RSA No.2777 of 2011 5 prove that the pronote and receipts are the result of fraud committed by Gurwinder Singh. Mere fact that Gurinder Singh is partner of the Deep Trading Company, does not prove the fact that the amount relates to the firm Deep Trading Company, Dhuri. Non-production of the scribe and income tax returns are not fatal in the present lis. No doubt, the presumption under Section 118 of the Negotiable Instruments Act is rebuttable but the defendant/appellant has failed to rebut that presumption. It could not be pointed out during the course of arguments how the material alteration has been made in the pronote and receipt. It has also not been argued by the counsel that why adverse inference should be drawn against the plaintiff. It is not pointed out by the counsel for the appellant that which best evidence has been withheld by the plaintiff. No other point has been urged before me. 16. So, in view of the concurrent finding of fact I have no hesitation in observing that no substantial question of law has arisen in the present appeal. 17. Consequently, the appeal is without any merit and the same stands dismissed. 18. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 21, 2011 sv