RSA-4652-2018 (O&M)

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133

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

RSA-4652-2018 (O&M)

Date of decision : 10.12.2018

Suresh Kumar

... Appellant

Versus

Joginder Kumar

... Respondent

CORAM:

HON'BLE MR. JUSTICE AMIT RAWAL

Present:

Mr. Sudhir Rana, Advocate

for the appellant.

***

AMIT RAWAL, J.

The appellant-defendant has not been successful in defending

the suit for recovery of `6,20,000/- long with interest @ 18% per annum on

account of dishonor of cheque bearing No.114702 dated 03.12.2011.

Learned counsel appearing on behalf of the appellant-defendant

submitted that a complaint filed in lieu of dishonor of cheque, was

dismissed on account of delay. The cheque bearing the next leaves number

was filled by brother-in-law, the same was also dishonored. The plaintiff

miserably failed to prove the financial capacity. Even a complaint to the

police was made, but did not yield any result, therefore, in all probability,

the blanks cheques have been misused.

I am afraid the aforementioned argument is not sustainable, for,

there is presumption as per the provisions of Section 118 of the Negotiable

Instruments Act. For the sake of brevity, Section 118 of the Act reads thus:-

''118 Presumptions as to negotiable instruments. —Until the

contrary is proved, the following presumptions shall be made:

YOGESH SHARMA

2019.01.03 12:06

I attest to the accuracy and

integrity of this document

RSA-4652-2018 (O&M)

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—

(a) of consideration —that every negotiable instrument was

made or drawn for consideration, and that every such

instrument, when it has been accepted, indorsed, negotiated

or transferred, was accepted, indorsed, negotiated or

transferred for consideration;

(b) as to date —that every negotiable instrument bearing a

date was made or drawn on such date;

(c) as to time of acceptance —that every accepted bill of

exchange was accepted within a reasonable time after its

date and before its maturity;

(d) as to time of transfer —that every transfer of a

negotiable instrument was made before its maturity;

(e) as to order of indorsements —that the indorsements

appearing upon a negotiable instrument were made in the

order in which they appear thereon;

(f) as to stamps —that a lost promissory note, bill of

exchange or cheque was duly stamped;

(g) that holder is a holder in due course —that the holder of

a negotiable instrument is a holder in due course:

Provided that, where the instrument has been obtained

from its lawful owner, or from any person in lawful custody

thereof, by means of an offence or fraud, or has been obtained

from the maker or acceptor thereof by means of an offence or

fraud, or for unlawful consideration, the burden of proving that

the holder is a holder in due course lies upon him.''

Dismissal of complaint without adjudication on merits pales

into insignificance, even if, findings are on merits, the same would not be

binding upon the Civil Court as the case has to be proved on touchstone of

the evidence. The defendant has not been able to explain as to how and

under what circumstances, the cheques were in possession of the plaintiff as

no such brochure of that period, when the plots were applied in HUDA, has

YOGESH SHARMA

2019.01.03 12:06

I attest to the accuracy and

integrity of this document

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been brought on record.

In this view of the matter, I do not find any illegality and

perversity in the judgments and decrees of the Courts below, much less, no

substantial question of law arises for determination. No ground for

interference is made out.

Resultantly, the present regular second appeal is dismissed.

10.12.2018

Yogesh Sharma

( AMIT RAWAL )

JUDGE

Whether speaking/reasoned

Yes/ No

Whether Reportable

Yes/ No

YOGESH SHARMA

2019.01.03 12:06

I attest to the accuracy and

integrity of this document