Presumption under NI Act Sections 118/139 rebutted by plaintiff's inconsistent evidence and non-production of payment proof despite signature admission.

JUDGMENT :

MOHAMMED NIAS C.P., J.

This appeal is preferred against the dismissal of a suit for the realisation of money filed by the original plaintiff, who died pending the suit.

2. The original plaintiff filed O.S.No.21 of 1997 on the file of the Subordinate Judge's Court, Mavelikkara for realisation of an amount of Rs.2,57,500/- from the respondent/defendant contending that on 15.12.1996 the defendant came to the house of the plaintiff and requested to arrange a loan of Rs.2,50,000/- for his urgent personal needs and promised to repay the same with 18% interest per annum after 30 days and for the repayment of the said amount, the defendant issued Ext.A1 cheque for Rs.2,50,000/- drawn on the account maintained by him with the Catholic Syrian Bank, Pandalam Branch.

3. The cheque was dishonoured on presentation on 11.02.1997 for want of funds. Though the plaintiff contacted the defendant personally on 12.02.1996 and demanded the amount back with interest, the defendant did not do so, resulting in the filing of the above suit.

4. The defendant filed a written statement contending that he had no transaction at all with the original plaintiff and that he had made use of a blank cheque issued to one K.N.Mohanan. In short, the issuance of Ext.A1 cheque was denied, and he set up a case that on 09.05.1995, the defendant had borrowed an amount of Rs.20,000/- from one Mohanan for a period of six months and as security, Ext.A1 cheque was entrusted with him. The defendant had also executed an agreement in favour of the said Mohanan, which was extended twice and later the said transaction was closed on 12.01.1996 as evidenced by Ext.B5 agreement. Thus, the defendant prayed for dismissal of the suit.

5. The Trial Court considered the evidence of the additional third plaintiff who was examined as PW1 and marked Exts.A1 to A5 on their side. On the side of the defendant, he was examined as DW1 and Exts.B1 to B11 were marked.

6. The trial court found that the due execution of the cheque was not proved and that the case of the plaintiff could not be believed, and dismissed the suit, against which the instant appeal is filed.

7. Learned counsel appearing for the appellants would argue that since the defendant had admitted the signature in Ext.A1 cheque, the burden of proving the transaction he pleaded was on him and having miserably failed to discharge the said burden, the suit ought to have been decreed. Learned counsel also relied on Sections 118 and 139 of the Negotiable Instruments Act and the judgments in Priyamvada K. v. M. Rahufina [2024 (1) KHC 245], Parameswaran v. Smitha Suresh [2024 (6) KHC 27] and Rajesh Jain v. Ajay Singh [(2023) 10 SCC 148] to contend that in a case where the cheque and the signature are admitted by the accused, the presumption under Section 118 (a) and Section 139 of the Negotiable Instruments Act, 1881 would operate and the burden shifts to the accused to disprove or show the non existence of a legally enforceable debt or liability.

8. The learned counsel argued that the difference in the pleadings and the evidence on the side of the defendant would lead to a conclusion that the case set up by the defendant was false, especially because the defendant had totally denied any transaction with the original plaintiff, but in evidence, various transactions stood proved. It is also argued that K.N. Mohanan, who was a material witness, was not examined and therefore an adverse inference ought to have been drawn against the defendant. At any rate, the transaction between the defendant and one Mohanan could not have been held against the plaintiff t