In this suit, the plaintiff as holder of 6 cheques, claimed from the defendant a sum of RM60,000/- when the said cheques, each for a sum of RM10,000/-, were dishonoured when they were presented for clearance. All the 6 cheques were presented more than 6 months from their stipulated dates. The defendant is the drawer of the said cheques.

The suit came up for hearing before the learned Sessions Court Judge and after a full trial, judgment was given in favour of the plaintiff. The defendant being dissatisfied with the decision appealed herein and the grounds of appeal are as contained in the Memorandum of Appeal (encl. 5) [2]

According to PW1 and PW2, both brothers and partners in the plaintiff's firm, it had been the practice between the defendant and the father of PW1 and PW2, Kueh Kim Yong to exchange outstation cheques with local cheques. The defendant would give outstation cheques to their father and in return local cheques would be issued to the defendant as local cheques require a shorter time for clearance compared to outstation cheques. In the event the outstation cheques were dishonoured, the defendant would replace the same with his own cheques. According to PW1, this sort of arrangement between his father and the defendant was carried out because of their long standing friendship.

The 6 cheques as shown in pages 1 - 12 of the Bundle of Agreed Documents, for a sum of RM10,000/- each were cheques replaced by the defendant in lieu of the dishonoured cheques. According to PW1, prior to these 6 cheques, there were other cheques given by the defendant with the instructions not to present them for clearance on the due dates stated in the cheques. The defendant would then issue new cheques to replace the ones that have expired. In this case, the defendant presented the 6 cheques for clearance more than 6 month after their issuance because the defendant refused to replace the said cheques eventhough after repeated requests to do so.

In his brief defence, the defendant informed the trial judge that the sum of RM60,000/- representing the sum total of all the 6 cheques had been settled. The settlement was by way of the defendant transferring his business to Kueh Kim Yong. The defendant further said that he forgot to take back the said cheques from Kueh Kim Yong after the agreement to transfer his business had been concluded.

Grounds of Appeal.

The learned defence counsel in his submission under the 1st ground of appeal stated that the learned Sessions Court Judge erred both in law and fact in accepting the evidence of PW1 and PW2 pertaining to the 6 cheques, in particular, how these cheques came about in the first place. He further contended that both PW1 and PW2 had no personal knowledge as to the issuance of the said cheques and that the explanations [3] proffered by both PW1 and PW2 regarding the exchange of cheques were hearsay because the circumstances of the said transaction were told to PW1 and PW2 by their father, Kueh Kim Yong, who was not called as a witness during the trial.

It must be noted that the point as to how the 6 cheques originated and came into the possession of the plaintiff is not the primary issue here. The main crux of the plaintiff's case is the uncontroverted evidence that the defendant issued the 6 cheques in favour of the plaintiff and they were subsequently dishonoured when presented for clearance. The defendant himself clearly admitted in his examination in chief, that the 6 cheques were issued to the plaintiff and passed to Kueh Kim Yong, who is the proprietor of the plaintiff and father to both PW1 and PW2. In furtherance thereto, the defendant in his answer under cross-examination said that he did owe this sum of RM60,000/- for a few years and the money was borrowed from Messrs Kim Yong, the plaintiff herein, when the defendant encountered difficulties in his business.

Thus, the contention of the defendant that the evidence admitted by the learned Sessions Court Judge was hearsay, even i