R.S.A. No.285 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.285 of 2008 (O&M) Date of Decision:19.12.2008 Amarjit Singh .....Appellant Vs. Nazar Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Mukand Gupta, Advocate for the appellant. **** JUDGMENT HARBANS LAL, J. (Oral) This appeal is directed against the judgment/ decree dated 1.3.2007 passed by the Court of learned Additional District Judge, Mansa whereby he dismissed the appeal preferred against the judgment/ decree dated 15.12.2006 vide which the Court of learned Civil Judge (Junior Division), Mansa had dismissed the suit. The factual basic terrafirma with brevity is that on 16.5.1996, the defendant borrowed a sum of Rs.5,80,000/- from the plaintiff with the promise to repay the same on demand together with interest at the rate of Rs.1.56% per month. In consideration thereof, he executed the pronote and receipt of even date in favour of the plaintiff. The defendant did not return this amount along with interest despite repeated requests. In answer to this claim, the defendant has inter-alia pleaded that he is the owner of Bagi Filling Station, Fatta Maloka. In the year 1987-1988, he was doing LL.B and he appointed the plaintiff as Manager of this Filling Station. After R.S.A. No.285 of 2008 (O&M) -2- some time, a dispute arose between them with regard to the amount of the Filling Station. The plaintiff got registered an FIR bearing No.36 dated 6.6.1997, Police Station Jhunir against the defendant who was kidnapped by the plaintiff with the help of some other persons and was kept in illegal custody and was threatened with dire consequences and when he was in illegal custody, his signatures were obtained on some blank pronote and receipt forms. The defendant got registered an FIR No.69 dated 17.8.1997, Police Station Sadar, Mansa against the plaintiff, whereafter the matter was compromised and Rapat No.33 dated 18.4.1998 was recorded, wherein the plaintiff admitted that nothing was due towards the defendant except an amount of Rs.7,55,000/-. As per the terms and conditions of the compromise, the defendant has made all the payments to the plaintiff. He has also got recorded his statement with regards to the same on 7.6.1999, 8.6.1999 and 9.6.1999 but the plaintiff with malafide intention has not returned the blank papers/ pronote and receipt. The plaintiff prepared the document in question in connivance with the witnesses who are related to him, whereas Amrik Singh scribe and Sarban Singh witnesses were not at good terms with the defendant. The plaintiff was not in a position to lend a sum of Rs.5 lacs. There being material alterations and additions in the pronote, the same cannot be read into an evidence. Lastly, it has been prayed that the alleged pronote and receipt being forged and fabricated documents, the suit may be dismissed with costs. The following issues were framed by the learned trial Court:- (i) Whether the plaintiff is entitled for the recovery of amount as prayed for? OPP (ii) Whether the Civil Court has no jurisdiction to try the R.S.A. No.285 of 2008 (O&M) -3- suit? OPD (iii) Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court dismissed the suit as noted supra. Feeling aggrieved therewith, the plaintiff went up in appeal, which was also dismissed by the learned First Appellate Court. Being undaunted and dissatisfied, he has filed this regular second appeal. I have heard the learned counsel for the appellant, besides perusing the findings returned by both the Courts below with due care and circumspection. Mr. Mukand Gupta, Advocate representing the appellant urged with great eloquence that both the Courts below have dismissed the suit merely on the ground that once the appellant and the respondent have entered into compromise in the year 1998, nothing remained due from the respondent to the appellant, though the appellant has proved the due execution of the disputed pronote and receipt. Moreso, the said loan was taken by the respondent in his personal capacity on 16.5.1996. There was no dispute between the parties till 23.8.1996. All the disputes had arisen after 30.8.1996. In the compromise, it was decided that the respondent will pay a sum of Rs.7,55,000/- to the appellant. The respondent in his capacity as owner of Bagi Filling Station has settled the account relating to this Filling Station with the appellant. Therefore, there was no occasion to mention the amount of disputed pronote and receipt in the compromise. The present dispute is totally different from the earlier one. The Courts below have inter-mingled both the disputes and thus dismissed the recovery suit of the appellant in an illegal and arbitrary manner. The respondent has not R.S.A. No.285 of 2008 (O&M) -4- adduced any evidence in proof of the fact that the disputed pronote is forged and fabricated document. I have well considered the above submissions. The following substantial questions of law arise for determination:- 1. Whether the disputed pronote and receipt were executed by the defendant- respondent in favour of the plaintiff- appellant for consideration? 2. Whether there are material alterations in the disputed promissory note? It was own admission of the plaintiff that there has been a long standing dispute between him and the defendant even prior to the execution of the disputed pronote and receipt. If it was so, neither the defendant- respondent could approach the plaintiff- appellant for borrowing the amount in dispute nor the latter could give such a huge amount as a loan to the defendant- respondent. It is a common-place experience that when the relations between the parties are strained or soured, such transactions can lie hardly expected of the parties. The plaintiff- appellant admitted his statement Ex.D8 as correct in his cross-examination. As per the same, some monetary dispute did subsist between the parties. In his affidavit, Ex.D.1 dated 7.6.1999, the plaintiff- appellant has admitted that nothing remained due towards the defendant. In his affidavit Ex.D.3 dated 12.6.1998 he has also admitted that he had left with no concern with the defendant or his Filling Station. In his affidavit Ex.D4, he has solemnly affirmed that he had no concern with Nazar Singh proprietor of Bagi Filling Station. As would be apparent from Ex.D12, the inquiry report, the plaintiff- appellant did not disclose about the disputed pronote and receipt. He lets the cat out of bag R.S.A. No.285 of 2008 (O&M) -5- by admitting that some blank papers duly signed by the defendant were in his possession and he will hand over the same to him or destroy in the presence of the Panchayat. He has nowhere mentioned in this document about the pronote and receipt in dispute. If the promissory note in question had been in existence by all probabilities he would have made mention thereof. As per the admitted Rapat No.33 dated 18.4.1998, no other amount was due against the defendant on 17.4.1998 except Rs.7,55,000 which related to the Filling Station. In this factual scenario, it can be held without any demur that if it is assumed that the execution of the disputed pronote and receipt is proved, notwithstanding, the same are without consideration. Thus, in respect to the first substantial question of law, it is concluded that these documents are without consideration. A glance through the pronote Ex.P.1 would reveal that at point Q.3, there is material alteration in the name of the father of Amarjit Singh which has not been explained as to under what circumstances it had crept. If this alteration had been introduced at the time of execution of alleged pronote, the initials/ signatures of the respondent- defendant would have been obtained to authenticate these material alterations. As ruled in re: Narayanprasad Rai Gokulprasad Rai v. Ghanshyam Lal alias Shukhlal Jawaharlal Kurmi, AIR 1961 Madhya Pradesh 62, “the alteration which has the effect of making the instrument void u/s 87 of Negotiable Instruments Act, 1887, should have been brought about by the plaintiff or by anyone with his consent or on account of his negligence. If the alteration is brought about by an accident, or by some stranger who come in possession of the instrument in an unauthorized manner, then the instrument would not be rendered void.” It is further observed that “The burden of R.S.A. No.285 of 2008 (O&M) -6- proving how the alterations were made in the document lies on the plaintiff suing on the document and in the absence of any proof, it should be presumed that they were made by him or by his next friend, who was in custody of the document. A party who has the custody of an instrument made for his benefit is bound to preserve it in its original state and any material alteration will vitiate the instrument. Where a party sues on an instrument which, on the face of it, appears to have been altered, it is for him to show that the alteration has not been improperly made.” Adverting to the facts of the instant case, the plaintiff who is seeking the enforcement of the promissory note has not explained as to when and how the stated alteration was made. In absence of such explanation, he must fail as onus is upon him to show that the material alteration was made either with consent of parties or in order to effectuate common intention of parties. In absence of such plea, presumption is that the material alteration was made subsequently. Sequelly, the disputed pronote is void under Section 87 of the Negotiable Instruments Act, 1881. The second substantial question of law is determined accordingly. In consequence of the preceding discussion, this appeal fails and is dismissed. December 19, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes.