S.Y. Anandkumar vs Dhanashree and Others

S. Sujatha, J.—This second appeal is directed against the judgment and decree dated 29.3.2011, passed by the lower appellate Court in R.A. No. 101/2008.

For the purpose of convenience the status of the parties is referred to as per their status before the trial Court.

The facts in brief are that the plaintiff, working as an Assistant Administrative Officer in LIC of India, Belgaum, filed the suit against the defendants for recovery of a sum of Rs. 2,80,000/- with interest thereon, setting up his claim that one Kallappa Jadhav who is the husband of defendant No. 1 and father of defendants 2 and 3 had borrowed hand loan of Rs. 2,80,000/- from the plaintiff on 18.6.2004 and had executed a promissory note and receipt along with defendant No. 1 on the same day. Further the said Kallappa Jadhav had issued a cheque for a sum of Rs. 2,80,000/- on 17.1.2005 drawn on Corporation Bank, Belgaum for a sum of Rs. 2,80,000/- and the said cheque came to be dishonoured and criminal proceedings were initiated under Section 138 of the Negotiable Instruments Act against Kallappa. But unfortunately during the pendency of the proceedings the said Kallappa expired. The legal heirs of said Kallappa i.e., the defendant No. 1 had approached the plaintiff and assured him that the loan amount borrowed shall be repaid but failed to keep their promise and accordingly demanding the said repayment of hand loan the suit was instituted by the plaintiff.

The defendants contested the suit and denied the averment in the plaint more particularly, borrowing any loan from plaintiff on 18.6.2004 and the execution of the on demand promissory note. It was contended that the promissory note is a fabricated document and sought for dismissal of suit with compensatory cost of Rs. 10,000/-. After considering the oral and documentary evidence, the trial Court decreed the suit. Aggrieved by the said judgment and decree the defendants preferred appeal before the lower appellate Court and the same was allowed by setting aside the judgment and decree, dismissing the suit. This judgment and decree passed by the lower appellate Court is impugned in this second appeal.

The learned counsel for the appellant mainly contended that the defendant No. 1 along with her husband deceased Kallappa Jadhav had executed Exs. P. 1 and P. 2 for having borrowed a sum of Rs. 2,80,000/- on 18.6.2004 pursuant to which a cheque was also issued by the deceased Kallappa Jadhav for the said amount of Rs. 2,80,000/- and during the criminal proceedings initiated by the plaintiff, the said Kallappa Jadhav expired. The trial Court appreciating the material evidence on record decreed the suit. On the contrary, the lower appellate Court reversed the said judgment without properly re-appreciating the material evidence on record; no valid presumptory value under Section 118 of the Negotiable Instruments Act was given by the lower appellate Court as far as Exs. P. 1 and P. 2 are concerned, mainly relying on Ex. D. 3, the lower appellate Court allowed the appeal which requires interference by this Court.

Per contra, the learned counsel for the respondents supported the judgment and decree passed by the lower appellate Court and argued that Exs. P. 1 and P. 2, the promissory note and the receipt i.e., the documents relied on by the plaintiff are concocted and fabricated documents in view of Exs. D. 1 to D. 3, which runs contrary to Exs. P. 1 and P. 2. The presumption under Section 118 of the Negotiable Instruments Act is not absolute but is rebuttable, the trial Court ignoring this settled principles of law decreed the suit which is rightly reversed by the lower appellate Court. It is also contended that the plaintiff being an officer of the Central Government failed to prove the source of the amount of Rs. 2,80,000/- given as hand loan to the deceased Kallappa Jadhav and the defendant No. 1. In the absence of his financial capacity to lend the said huge amount of Rs. 2,80,000/-, the acceptance of the said amount by the defendant No. 1 and her husband is not proved. In the circumstances considering the judgment of the trial Court and re-appreciating the evidence on record the lower appellate Court allowed the appeal.

After considering the rival submissions made by the parties and perusing the records it is clear that Ex. P. 1 is the promissory note for a sum of Rs. 2,80,000/- with the signature of defendant No. 1 and the deceased Kallappa Jadhav, the husband of defendant No. 1 and Ex. P. 2 is the receipt. Though the promissory note and the receipt is in the printed form in Marathi, it is typewritten in English which is said to be executed by Kallappa Jadhav and the defendant No. 1 in favour of S.Y. Anandkumar i.e., the plaintiff. Ex. D. 1 is the legal notice issued by the plaintiff. Ex. D. 3 is the xerox copy of the promissory note, the printed form is in Kannada and it is also typewritten in Kannada with the signature of the husband of defendant No. 1 only. It is also the promissory note said to have been executed in favour of the plaintiff for a sum of Rs. 2,80,000/- by the deceased Kallappa Jadhav. This Ex. D. 3, the xerox copy of the promissory note was annexed to the legal notice addressed to the Life Insurance Corporation authorities to withhold the policy amount of the deceased Kallappa Jadhav in view of the borrowed amount not being settled with the plaintiff.

From the perusal of these exhibits it emerges that both these documents are dated 18.6.2004, Ex. P. 1 and P. 2 are in Marathi and is typewritten in English with the signature of deceased Kallappa Jadhav and the defendant No. 1. Whereas Ex. D. 3 is the xerox copy of the promissory note executed on Kannada printed form, typewritten in Kannada and both these documents are for a sum of Rs. 2,80,000/-. One is contradicting to another, clouded with suspicion. It is an admitted fact that the deceased Kallappa was working as LIC agent and he died during the pendency of the criminal proceedings, initiated by the plaintiff. Subsequent to the demise of Kallappa Jadhav, legal notice was issued to the LIC officers to withhold the insurance benefit amounts on the basis of Ex. D. 3. The plaintiff has also admitted the execution of this Ex. D. 3 by deceased Kallappa Jadhav, but has not come out with the original copies of Ex. D. 3. In the absence of original Ex. D. 3 and the admission of Ex. D. 3 by the plaintiff coupled with the denial of any transaction nor execution of Exs. P. 1 and P. 2 by defendant No. 1, it could be inferred that Exs. P. 1 and P. 2 are not genuine documents. These inconsistent promissory notes Exs. P. 1, P. 2 and D. 3 containing different versions of the same incident virtually destroys the case of the plaintiff, nullifying the presumption under Section 118 of the Negotiable Instruments Act. Section 118 of the Negotiable Instruments Act raises a presumption unless the contrary is proved. In the absence of any admission of execution of the promissory note by defendant No. 1, no presumption could be drawn in favour of the plaintiff.

The plaintiff is a Government servant and has failed to establish the source of the said amount and how he has mobilized the said amount to advance loan to the defendant No. 1 and her husband. From the records, it is also noticed that the plaintiff was filing income tax returns and was an assessee under the Income Tax Act, but, no proof is produced for declaring this transaction in the returns filed by him and in the absence of such material the said transaction said to have been given by hand loan is not worthy of acceptance. The plaintiff has miserably failed to prove his financial capacity to advance the loan.

PW. 2, the witness who has deposed on behalf of the plaintiff is also an employee of LIC and his evidence clearly depicts that he has not witnessed the signatures being affixed on the documents by the deceased Kallappa Jadhav or his wife defendant No. 1. In the circumstances, analyzing the material evidence on record in the right perspective, the lower appellate Court has reversed the judgment and decree of the trial Court which does not call for any interference by this Court. Hence in my view no substantial question of law arises for consideration in this second appeal. Accordingly the appeal is dismissed.