The plaintiff must prove execution of a cheque to benefit from the presumption of consideration under Section 118 of the Negotiable Instruments Act, failing which the claim is untenable.

JUDGMENT

O.S No.138/1998 seeking realisation of money by the plaintiff from defendant was dismissed by the Additional Sub Court, Kollam by judgment dated 24.06.2004. Aggrieved thereby the plaintiff is now before this Court in the appeal on hand challenging the judgment and decree. The 1^st defendant died during the pendency of the suit and his legal heirs were brought on record as additional defendants 2 to 6. For the sake of convenience, the parties to the appeal are referred to hereinafter as the plaintiff and defendants.

2. The conspectus of the facts of the case are as follows:

A sum of Rs.2,00,000/- was borrowed by the original defendant from the plaintiff on 02.05.1995. Cheques bearing Nos.968071 and 968072 each for Rs.1,00,000/- drawn on State Bank of Travancore, Ooruttampalam Branch were issued to the plaintiff towards repayment of the amount borrowed at the residence of plaintiff's brother at Mundakkal Village in Kollam District. Cheques were presented by the plaintiff before State Bank of India, Main Branch, Kollam for encashment through the son of his brother, who was also his authorised Power of Attorney, but returned bounced on 14/7/1995 for the reason “Account closed by the party with cheque leaves reported lost by him.” Despite demands made repeatedly, the defendant did not care to repay the amount. Demand made by registered lawyer notice dated 17.7.1995 was also not met with by payment and therefore, the suit was filed seeking realisation of money.

3. In the written statement filed the 1^st defendant has out-rightly denied the transaction of borrowal of money and issuance of cheques. It was contended that the account maintained by him with Ooruttampalam Branch was closed as early as on 11/1/94 following missing of two cheques from his custody, that there was no consideration for the cheques and that therefore those were not legally enforceable. Criminal prosecution launched by the plaintiff under Section 142 of Negotiable Instruments Act,1881 (for short, 'the Act') through Power of Attorney Holder was dismissed by the Criminal Court. Accordingly, the liability to pay Rs.2,00,000/- with interest was denied.

4. Additional defendants 2 to 6 brought on record as legal heirs following the death of the original defendant adopted the latter's contention, in the joint written statement filed by them.

5. Smt.A.Jani, the learned counsel for the plaintiff has contended that since the issuance of the cheques were admitted by the original defendant during his life time, as well as the additional defendants after his death, the trial court ought to have convinced that the cheques have been executed by the original defendant. According to her, it is not incumbent upon the plaintiff to adduce further evidence to establish the execution of the cheques in view of the presumption available to him under Section 118 of the Act. In such circumstances, the onus will be that of the defendant to rebut the presumption and it must be the duty of the court to find from the evidence adduced by the defendant, whether it has been satisfactorily discharged by the defendant. According to her, the trial court went wrong in dismissing the suit on a finding that the plaintiff has failed to discharge the burden to establish the execution of the cheques. The learned counsel has also relied on M/s.Kumar Exports v. M/s.Sharma Carpets ( 2009(2) SCC 513 ) to rest her contention. According to the learned couns