JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. No one turns up on behalf of the respondents in-spite of repeated calls. Accordingly, this appeal is heard ex-parte against the respondents.

3. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 18.04.2009 passed by the learned Additional District Judge-Fast Track Court No. 1, Bermo at Tenughat in Money Appeal No. 01 of 2007 whereby and where under, the learned Additional District Judge-Fast Track Court No. 1, Bermo at Tenughat allowed the appeal and dismissed the Money Suit No. 01 of 2005 which was decreed on contest by the trial court and the trial court directed the defendant to pay Rs. 1,05,000/- to the plaintiff.

4. The case of the plaintiff-appellant in brief is that the plaintiff provided Rs. 1,05,000/- to the defendant as friendly loan. The defendant on 23.02.2002 executed the money receipt in presence of witnesses in favour of the plaintiff. After lapse of some period, the plaintiff demanded the money and ultimately on 08.09.2004, the defendant handed over a cheque of Rs. 1,05,000/- payable to the plaintiff with the assurance that the cheque should be encashed after three months. The defendant thereafter, reported the matter to police on 09.09.2004. The plaintiff was called by the Officer-in-Charge of Bermo Police Station and on enquiry, the plaintiff agreed that a day before 09.09.2004, a cheque in discharge of friendly loan was provided to the plaintiff with assurance to encash the money from the bank account after three months. Hence, the plaintiff executed a note regarding clearance of his dues with the defendant which has later been marked as Ext.A from the side of the defendant, in this suit. On confrontation to the plaintiff, the plaintiff thereafter presented the cheque dated 08.09.2004 on 23.12.2004 to encash the cheque but the same was returned unpaid by the bank because of insufficiency of funds in the account of the defendant. The plaintiff sent a notice to the defendant and even after that the defendant did not return the money. The plaintiff filed this money suit with a prayer for decree of amount of Rs. 1,05,000/- to be passed in favour of the plaintiff and against the defendant and also prayed for cost of the suit and other reliefs.

5. The defendant-deceased sole respondent in his written statement though denied the factum of taking Rs. 1,05,000/- from the plaintiff and also went to the extent of pleading that the money receipt claimed to have been executed by the defendant to the plaintiff is a forged one and further pleaded that there was some criminal litigation between the parties which was settled on 09.09.2004 but in sub-para of paragraph no. 9 of the written statement, the defendant though in the first paragraph has denied the allegations made in the paragraph no. 4 of the plaint being not correct but went on to plead that the said cheque was provided to the plaintiff by the defendant in leave of friendly loan taken by the defendant as per money receipt dated 23.02.2002 and accordingly the plaintiff kept the cheque as the security of the friendly loan advanced to the defendant by the plaintiff. The defendant further pleaded that on 09.09.2004, the plaintiff admitted his no dues and beside it, the defendant also pleaded that the suit be dismissed on technical grounds also.

6. In view of the rival pleadings of the parties, the learned trial court framed altogether 7 issues:

(i) Is the suit maintainable in its present form?

(ii) Whether the plaintiff has any valid cause of action for the suit?

(iii) Whether the defendant has executed money receipts in favour of the plaintiff on 23.02.2002 against friendly loan?

(iv) Whether the defendant issued and handed over a cheque of Rs. 1,05,000/- on 08.09.2004 against the friendly loan?

(v) Whether the money receipt dated 23.02.2002 granted by the defendant is forged and fabricated?

(vi) Whether the cheque for Rs. 1,05,000/- dated 08.09.2004