Guddangouda Tirakangouda vs Shivappa Guddappa

This is a plaintiff''s second appeal against the concurrent findings of the Courts below.

The plaintiff filed the suit against the defendant praying for a decree in the sum of Rs. 3,960, Rs. 3,000 being the principal and Rs. 960 being the interest The plaintiff stated that he paid by cheque the said amount as the defendant wanted a handloan.

The defendant resisted the claim stating that he received the cheque only for purposes of encashment of the cheque and handing over the cash to the plaintiff on account of the fact that on that particular day he was going on his official duties to the Bank at Shiggaon.

Three issues were framed by the trial Court placing the burden on both the plaintiff and the defendant equally as to their rival contentions and on appreciating the evidence came to the conclusion that the defendant''s version was worthy of credence and therefore the plaintiff had not proved that he had advanced the handloan of Rs. 3,000 muchless stipulating any interest. The lower appellate Court, more or less, followed the same reasoning as that of the trial Court.

Mr. Bannurmath, learned Counsel appearing for the appellant made a slender attempt on the basis of S. 28 of the Negotiable Instruments Act, that on account of the fact that the defendant admitted his signature on the back of the counterfoil of the cheque, benefit of Section 28 of the Negotiable Instruments Act should go to the plaintiff. I do not see how this would be available to the plaintiff. S. 28 of the Negotiable Instruments Act contemplates the signing of the instrument itself by the agent. In other words, the agent must be drawing the instrument himself and not merely affixing his signature in some part of the cheque or counterfoil as the case may be, not being the drawer or at the place marked for the signature of the drawer.

Similarly, the learned Counsel''s argument that S. 118 of the Negotiable Instruments Act would come to his aid is neither here nor there. The presumption under S. 118(1)(a) of the said Act is that the drawer of the cheque or a pronote or any other Bill of Exchange had so drawn it for consideration. This actually operates against the plaintiff and not against the defendant.

For these reasons there is no merit in this second appeal and therefore it is dismissed.