The burden of proof in establishing the mode of payment shifted upon the Defendants, and their failure to provide sufficient evidence led to the court's decision in favor of the Plaintiff.

JUDGMENT :

Prathiba M. Singh, J.

1. The present appeal challenges the impugned judgment and decree dated 27th February, 2019 by which the initial judgment dated 6th December, 2018 was reversed by the Appellate Court.

2. A suit for recovery for a sum of Rs.2,41,401/- was filed by the Respondent herein/Plaintiff - Shri Kulwant Singh (hereinafter ‘Plaintiff’) against the Appellants herein/Defendants - M/s Shree Bhaiyaa Dass Chits (P) Ltd. (hereinafter ‘Chit Fund’) and its directors namely Shri Shyam Jain and Shri Ajay Sharma (hereinafter collectively ‘Defendants’). The case of the Plaintiff was that the Plaintiff became a member of the Chit Fund for a sum of Rs.2.50 lakhs, which was to be finally completed in 20 instalments. The Plaintiff admitted till 18 instalments and had given a cheque for the remaining two instalments. However, at the end, when the amount of the Chit was to be discharged, the Plaintiff was paid back a sum of Rs.2,12,688/- by the defendant by means of a cheque which was dishonoured. The Defendant had, in effect, deducted the amount of the last two instalments which were due from the plaintiff and had paid the remaining amount. The cheque having not been encashed, the Plaintiff filed the suit for recovery.

3. The case of the Defendants is that the cheque was given only as a security and actually the sum of Rs.2,12,688/- was paid by cash and the copy of the receipt in respect of the cash payment is relied upon by the Defendants.

4. The Trial Court, initially, had dismissed the suit vide the order dated 6th December, 2018. The Court had come to the conclusion that the payment was made by cash, which was collected by the Manager of the Plaintiff.

5. In appeal, vide order dated 27th February, 2019 the Appellate court reversed the judgment and the suit was decreed with the following observations:

“12. Perusal of mark - A i.e. voucher receipt reveals the same to be merely the photocopy with receiver's signature appended upon them. The voucher belongs to chit fund company of the defendants only which is neither signed by any witness nor any signatures are appended against the column "Approved By". No explanation was furnished on record for non production of the original voucher on record nor the secondary evidence was led to prove the existence of the receipt voucher, besides the fact that the said receipt voucher allegedly bearing signatures of PW1 was not even put to him in cross examination. In these circumstances, no reliance at all can be placed upon the photocopy of the receipt voucher mark- A.

13. Ld. Trial court noted that the payment was made as per defendants on 30.3.2018 in cash to the plaintiff but the plaintiff had brought his bank statement only upto 31.3.2016, thereby he had not been able to refute the defence of defendants that cash was not received in place of the dishonoured cheque. The said observation of Ld. Trial court seems to be misplaced. The said photocopy of voucher receipt is dated 30.3.2016 and the plaintiff had brought his bank statement upto 31.3.2016 to show the dishonour of the cheque issued by the defendants. Even if the amount in cash had been received by plaintiff, it was for him to deposit the said amount in the bank account or not, therefore, bank statement after 31.3.2016 is the inconsequential fact to be considered. Plaintiff/appellant having been able to prove the issuance of cheque by the defendants in discharge of their liability, the onus therefore shifted upon the defendants to prove their defence with regard to payment made by them in cash against the said cheque, in which the defendants have miserably failed.

14. Plaintiff/appellant having been able to prove his case and the defendants having failed to prove the existence of voucher receipt or the return of payment in cash to the plaintiff against the dishonour of the cheque, plaintiff/appellant is held entitled for recovery of the amount of cheque. The judgment dated 6.12.2018 passed by Ld. Trial court accordingly stands set asid