Back
2011 Supreme(Mad) 3836
High Court of Judicature at Madras
M. VENUGOPAL
Subbarayulu
Versus
Lakshmanan
A.S.No.161 of 2003
Decided on : 06-09-2011
For the Appellant:V. Raghavachari, Advocate.
For the Respondent:D. Govinda Reddy, Advocate.
The presumption under Section 139 of the Negotiable Instruments Act, 1881, that the holder of a cheque received the cheque for the discharge of any debt or liability, can be rebutted by the drawer of the cheque by proving that the cheque was not received by the complainant towards the discharge of any liability.
Headnote:
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 138 - DISHONOUR OF CHEQUE - BURDEN OF PROOF - PRESUMPTION UNDER SECTION 139 - REBUTTAL OF PRESUMPTION - SUFFICIENCY OF EVIDENCE - STANDARD OF PROOF - PREPONDERANCE OF PROBABILITIES - SECTION 118(A) OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 - PRESUMPTION OF CONSIDERATION - REBUTTAL OF PRESUMPTION - BURDEN OF PROOF - SECTION 20 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 - AUTHORITY IMPLIED BY SIGNATURE IN A BLANK INSTRUMENT - SECTION 73 OF THE INDIAN EVIDENCE ACT, 1872 - COMPARISON OF SIGNATURES, WRITING OR SEAL - HAZARDOUS NATURE OF COMPARISON - PRUDENCE REQUIRED.
Fact of the Case:
The Appellant/Defendant had preferred this present Appeal as against the Judgment and Decree dated 01.10.2002 in O.S.No.89 of 1999 passed by the Learned Additional Subordinate Judge, Virudhachalam. The trial Court, on an appreciation of oral and documentary evidence available on record, while passing the Judgment in O.S.No.89 of 1999 on 01.01.2002, had, inter alia, observed that on 15.08.1998 the Appellant/Defendant had received a sum of Rs.3,00,000/- from the Respondent/Plaintiff towards loan and only after filling up the details like amount, date, had given the Ex.A.1-Cheque and further held that as per written statement and exhibited through the evidence of D.W.1 to D.W.3, Ex.A.1-Cheque dated 15.08.1998 was not given to the Respondent/Plaintiff by the Appellant/Defendant. Further, it decreed the suit in directing the Appellant/Defendant to pay the suit sum of Rs.3,13,500/- together with future interest to the Respondent/Plaintiff together with costs.
Finding of the Court:
The Court held that the Appellant/Defendant had received a sum of Rs.3,00,000/- and handed over the Canara Bank Cheque-Ex.A.1 dated 15.08.1998 to the Respondent/Plaintiff and the Point No.1 is answered in favour of the Respondent/Plaintiff. Since the Respondent/Plaintiff and Appellant/Defendant were relatives and residing in opposite houses, the absence of Pronote, apart from Ex.A.1-Cheque dated 15.08.1998, would not anyway defeat the case of the Respondent/Plaintiff, as opined by this Court. The Court also held that the Ex.A.1-Cheque dated 15.08.1998 was not handed over to the Respondent/Plaintiff in the manner alleged by the Appellant/Defendant in the Written Statement and the Point No.2 is answered against the Appellant/Defendant. In the result, the Appeal is disposed of, by directing the Appellant/Defendant to pay the Respondent/Plaintiff a sum of Rs.3,00,000/- together with interest at the rate of 7.5% per annum from 15.08.1998 till date of realisation together with proportionate costs.
Issues: 1. Whether the Appellant/Defendant received a sum of Rs.3,00,000/- on 15.08.1998 from the Respondent/Plaintiff through Canara Bank Cheque bearing No.458946 and handed over the same to the Respondent/Plaintiff? 2. Whether the cheque dated 15.08.1998 was handed over to the Respondent/Plaintiff by the Appellant/Defendant based on the circumstances mentioned in the Written Statement?
Ratio Decidendi: The Court relied on various provisions of the Negotiable Instruments Act, 1881, the Indian Evidence Act, 1872, and judicial precedents to arrive at its decision. The Court held that the presumption under Section 139 of the Negotiable Instruments Act, 1881, that the holder of a cheque received the cheque for the discharge of any debt or liability, can be rebutted by the drawer of the cheque by proving that the cheque was not received by the complainant towards the discharge of any liability. The Court further held that the burden of proof lies on the drawer of the cheque to rebut the presumption by raising a probable defence. The Court also held that the standard of proof required to rebut the presumption is preponderance of probabilities.
Final Decision: The Court directed the Appellant/Defendant to pay the Respondent/Plaintiff a sum of Rs.3,00,000/- together with interest at the rate of 7.5% per annum from 15.08.1998 till date of realisation together with proportionate costs. Time for payment is three months from the date of receipt of copy of this Judgment.
1. The Appellant/Defendant had preferred this present Appeal as against the Judgment and Decree dated 01.10.2002 in O.S.No.89 of 1999 passed by the Learned Additional Subordinate Judge, Virudhachalam.
2. The trial Court, on an appreciation of oral and documentary evidence available on record, while passing the Judgment in O.S.No.89 of 1999 on 01.01.2002, had, inter alia, observed that on 15.08.1998 the Appellant/Defendant had received a sum of Rs.3,00,000/- from the Respondent/Plaintiff towards loan and only after filling up the details like amount, date, had given the Ex.A.1-Cheque and further held that as per written statement and exhibited through the evidence of D.W.1 to D.W.3, Ex.A.1-Cheque dated 15.08.1998 was not given to the Respondent/Plaintiff by the Appellant/Defendant. Further, it decreed the suit in directing the Appellant/Defendant to pay the suit sum of Rs.3,13,500/- together with future interest to the Respondent/Plaintiff together with costs.
3. Before the trial Court, in the main Suit, on behalf of the Respondent/Plaintiff, witness P.W.1 (Plaintiff) was examined and Exs.A.1 to A.5 were marked. On the side of the Appellant/Defendant, witnesses D.W.1 to D.W.4 were examined and Exs.B.1 to B.4 were marked. On the side of the Court, Ex.C.1 was marked.
4. Being dissatisfied with the Judgment and Decree dated 01.10.1999 in O.S.No.89 of 1999 passed by the trial Court, the Appellant/Defendant had projected this Appeal before this Court.
5. The Points that arise for determination in this Appeal are:
(1) Whether the Appellant/Defendant received a sum of Rs.3,00,000/- on 15.08.1998 from the Respondent/Plaintiff through Canara Bank Cheque bearing No.458946 and handed over the same to the Respondent/Plaintiff?
2. Whether the cheque dated 15.08.1998 was handed over to the Respondent/Plaintiff by the Appellant/Defendant based on the circumstances mentioned in the Written Statement?
The Contentions,Discussions and Findings on Point Nos.1 and 2:
6. According to the Learned Counsel for the Appellant/Defendant, the trial Court ought to have appreciated that the Respondent/Plaintiff had no wherewithal to pay a sum of Rs.3,00,000/- and the evidence also proved that there was no Debtor-Creditor relationship between the parties.
7. The Learned Counsel for the Appellant/Defendant urges before this Court that the specific case of the Appellant/Defendant is that he had not borrowed any sum and had not issued the cheques in discharge of any loan.
8. It is the further contention of the Learned Counsel for the Appellant/Defendant that one Ravichandran of Pudukuppam of Virudhachalam was not in good terms with the Appellant/Defendant and hence, there was a dispute between them and that the Respondent/Plaintiff intervened in the settlement process and only at that point of time, a blank cheque was obtained. Subsequently, no settlement was arrived at leaving the parties to settle the dispute among themselves, which could be proved by the evidence of D.W.2. Unfortunately, these aspects were not considered by the trial Court, which had resulted in miscarriage of justice.
9. The plea of the Appellant/Defendant is also to the effect that the Respondent/Plaintiff was inimically disposed of with him since he refused to sell his property.
10. According to the Learned Counsel for the Appellant/ Defendant, the trial Court should have seen that the cheque was dishonoured on 12.11.1998 and no notice was issued till 04.02.1999 and in fact, the cheque was presented on 04.02.1999 and only after its dishonour, a notice was issued as per Ex.A.4-Lawyer's Notice dated 08.02.1999.
11. The Learned Counsel for the Appellant/Defendant projects an argument that the case of the Respondent/Plaintiff was that he had obtained the money by selling 6 acres of land and he admitted that he was not aware which land was sold to the Appellant/Defendant and further, he had not taken any documentary proof for advancing the loan and moreover, the very fact tha
