Harnek Singh vs Surjit Singh

M.M. Kumar, J.—This is defendant''s appeal filed u/s 100 of the Code of Civil Procedure, 1908 (for brevity "the Code") against the judgment and decree dated 31.7.2002 passed by the District Judge, Sirsa reversing the judgment and decree dated 26.7.2001 passed by the Civil Judge (Junior Division), Sirsa. The Civil Judge has dismissed the suit of the plaintiff-respondent seeking recovery of Rs. 80,840/- (Rs.47,000/- as principal and Rs. 33,840/- as interest). The District Judge has recorded a categorical finding that the defendant-appellant duly executed the promissory note Ex.P1 and the receipt Ex.P2. It has also been held that the consideration amount was passed on, to the defendant-appellant at the time of execution. Therefore, a presumption u/s 118 of the Negotiable Instruments Act, 1881 (for brevity, the Act) has been raised in favour of the plaintiff-respondent. The learned District Judge has taken into consideration various factors which weighed with the Civil Judge to discard the promissory note Ex.P1 and the receipt Ex.P2. The views of the District Judge regarding the error committed by the Civil Judge and recording his own finding read as under:-

"The main grounds which appeared to have been weighed with the trial Court in dismissing the suit of the plaintiff are that: (1) the plaintiff has failed to establish that consideration has passed at the time of execution of promote and receipt; (ii) the pronote and receipt are false and fabricated; (iii) the plaintiff has failed to produce any documentary evidence to prove his residence at Village Rori, the plaintiff had failed to establish the source of money and (v) there are some discrepancies in the statements of the PWs. Here, to my mind the learned trial Judge slipped on the path of mistake because besides the testimony of the plaintiff himself as PW3, therefore, is direct and reliable evidence of PW1-Ved Parkash, scribe who had stated in unequivocal terms that the pronote Ex.P1 and receipt Ex.P2 were scribed by him at the asking of the defendant in the presence of witnesses, including PW2. He has specifically deposed about the passing of the consideration amount of Rs. 47,000/- to the defendant by the plaintiff and that these were read over and explained to the parties as also the witnesses. Thereafter defendant put his thumb, impressions on the pronote and receipt which were attested by PW2- Major Singh and Amar Singh. Even PW-2 has also corroborated the testimony of PW1 and PW3. Though these witnesses were put to search and lengthy cross-examination, but their credibility could not be shaken. Even the thumb impressions of the defendant on the pronote and receipt have been admitted by DWs. Moreover, the trial Court has recorded a finding of fact that the plaintiff has proved the execution of pronote Ex.P1 and receipt Ex.P2. Thus, it is well nigh established on record from the over whelming evidence that the pronote and receipt in question were duly executed and the consideration amount was passed to the defendant at that time."

I have heard Mr. P.S. Jammu, learned counsel for the defendant-appellant who has submitted that as a matter of fact no consideration passed on the defendant-appellant at the time of the execution of the promissory note and that the plaintiff-respondent was not resident of village Rori. The learned counsel has further submitted that in such circumstances, the presumption raised in favour of the plaintiff u/s 118 of the Act stands rebutted.

The celebrated argument raised by the learned counsel for the defendant-appellant would not require any detailed and serious consideration because no documentary or oral evidence has been placed on record which may sufficiently replace the presumption raised in favour of the plaintiff-respondent that the promissory note is supported by consideration. The thump impression of the defendant-appellant on the promissory note and the receipt have even been admitted by his own witness as is clear from the para extracted from the judgment pf the District Judge. The question with regard to presumption in favour of consideration u/s 118(a) of the Act has repeatedly been considered by the Supreme Court. In the case of Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal, , their Lordships of the Supreme Court observed as under:-

"12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption u/s 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitled him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendants fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising u/s 118(a) in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even tf led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the Court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard."

The principles enunciated by their Lordships in Bharat Barrel and Drum Manufacturing Co. case (supra) would apply to the facts of to present case. It becomes evident that presumption u/s 118(a) of the Act would arise in favour of the plaintiff-respondent and promissory note Ex.P1 and receipt Ex.P2 have been proved to be duly executed and in fact, there is even admission of thumb impression on the part of the witnesses produced by the defendant-appellant. The findings recorded by the District-Judge are based on cogent evidence and it cannot be concluded that the approach adopted by the District Judge is perfunctory. It is well settled that this Court u/s 100 of the Code would not be inclined to interfere in the findings of fact even if another view is possible. Therefore, the firm findings are not open to interference by this Court u/s 100 of the Code and the appeal is liable to be dismissed.