Bangalore District Court
N.Shilendra S/O Late S.Narayan vs Smt.T.Lakshmi W/O Late Jayagopal on 29 September, 2016
IN THE COURT OF THE LX ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH 61)
:Present :
Sri S.K.Vantigodi, B.A., LL.B.
LX Addl. City Civil & Sessions Judge,
Bengaluru
Dated: This the 29th day of September, 2016
: O.S.No. 9481 / 2015 :
PLAINTIFF:- N.Shilendra S/o Late S.Narayan
Aged about 47 years
R/at: No.23/1, 2nd Cross road
Nagappa Block
Bengaluru-560 021
(Sri K.S.Praveen Kumar, Advocate for
plaintiff)
Vs.
DEFENDANT:- Smt.T.Lakshmi W/o Late Jayagopal
Aged about 60 years
R/at: No.14/2, 2nd Cross,
Srirampura
Bengaluru-560 021
(Sri N.Jagadish Baliga, Advocate for
defendant)
Date of institution of the suit : 20.11.2015
Nature of the suit : Money Suit
Date of commencement of : 09.02.2016
recording of the evidence
2 O.S.9481/2015
Date on which the Judgment : 29.09.2016
was pronounced.
: Year/s Month/s Day/s
Total duration
-- 10 09
JUDGMENT
This is a suit file by the Plaintiff against the defendant for recovery of suit claim amount of Rs.10 Lakhs with interest.
2. The case of the plaintiff in brief is as follows; Plaintiff and defendant are known to each other for the last several years. Under the said acquaintance, the defendant approached the plaintiff and requested him to advance hand loan of Rs.10 lakhs, for which the plaintiff conceded and advanced a sum of Rs.10 lakhs to the defendant on several occasions during the year 2011 on the condition that the defendant shall repay the loan amount within three months. Since the defendant failed to repay the hand loan amount even after the expiry of period of three months, the plaintiff requested the defendant for repayment of hand loan amount. Then the defendant requested the plaintiff to grant some more time to repay the loan and issued a cheque dt.28.11.2012 for Rs.10 lakh drawn on Vijaya Bank, Nagappa 3 O.S.9481/2015 Block Branch, Bengaluru in favour of plaintiff. Then the plaintiff presented the said cheque for encashment on 28.11.2012. But the said cheque returned with endorsement as "insufficient funds"
on 30.11.2012. Then immediately, the plaintiff informed the defendant about the dishonour of cheque, for which the defendant went on dodging the matter on one or the other reason to cheat the plaintiff. Since the defendant did not come forward to repay the hand loan i.e., cheque amount, the plaintiff got issued legal notice to the defendant on 04.12.2012. The defendant in response to the legal notice, the defendant sent untenable reply on 17.12.2012. Then the plaintiff filed a private complaint against the defendant Under Sec.200 of Cr.P.C., for offence punishable U/Sec. 138 of Negotiable Instruments Act before the XX ACMM, Bengaluru in CC No.1493/2013 and the same is pending for adjudication. Since the defendant issued dishonoured cheque towards legally recoverable debt, the plaintiff is constrained to file this suit for recovery of cheque amount with interest. Hence, this suit.4 O.S.9481/2015
3. After filing of the suit, the suit summons duly served on the defendant, who made appearance through her counsel and filed her written statement as under:-
That the suit is not maintainable either in law or on facts. The defendant denied the averments of the plaint in toto except admitting some financial transactions with the plaintiff in the year 2008-09. It is contended that the suit is barred by limitation and not maintainable against her. Denying the averments of the plaint, it is contended by the defendant that she had some financial transaction with plaintiff in the year 2008-09. As per the letter written by the plaintiff, the defendant received Rs.5,00,000/- from the plaintiff and as a security for the said financial transaction, the plaintiff received some signed blank cheques without mentioning the dates. The defendant has already cleared the loan amount of Rs.5,00,000/- which was availed by her and now the plaintiff by misusing the said cheques has filed this suit against the defendant and also filed another suit against her son and both the suits are not maintainable. The defendant is regularly attending the Court in CC 1493/2013 and the trial already is concluded, and now the said matter is posted for 5 O.S.9481/2015 examination of hand-writing expert. The plaintiff by mis-using the cheques, filed the complaint against the defendant and her son for making wrongful gain. Since the plaintiff denied his hand- writings found in the letter written by him, the defendant got referred that letter for opinion of Hand-Writing expert and the Hand-Writing expert has already submitted his report confirming the hand-writing of the plaintiff over the said letters. The application which was filed by the plaintiff for attachment before judgment is also not maintainable, since the application is not in consonance with the provision of O.XXXVIII Rule 5 of CPC and the property is worth more than Rs.1,25,00,000/- and since the application itself is not in conformity with the Rule 5, the plaintiff is not entitled to grant of discretionary remedy. The defendant is not in due of any loan amount towards the plaintiff. The suit is nothing but abuse of process of law to harass the defendant and her son. Hence, prayed to dismiss the suit with heavy costs.
4. On the basis of above pleadings, my learned predecessor has raised the following issues:- 6 O.S.9481/2015
1) Whether the plaintiff proves that the defendant had borrowed loan of Rs.10 lakhs in the year 2011?
2) Whether the plaintiff proves that the defendant had issued cheque bearing No.067302 dt.28.11.2012 for Rs.10 lakhs drawn on Vijaya Bank, Nagappa Block Branch, Bangalore, towards discharge of loan by her?
3) Whether the defendant proves that she had received Rs.Five Lakhs in the year 2008-09 from the plaintiff and as security to the said financial transaction, the plaintiff has received his signed blank cheque without mentioning the date?
4) Whether the suit is barred by limitation?
5) Whether the plaintiff is entitled for the relief claimed in the suit?
6) What order or decree?
5. On behalf of the plaintiff, PW1 is examined and got marked Ex.P.1 to 7. On behalf of the defendant, DW1 is examined and two documents are got marked as Ex.D.1 and 2.
6. Heard the arguments of both the parties.
7 O.S.9481/2015
7. My findings on the above issues are as under:-
Issue No.1:- In the Negative.
Issue No.2:- In the Negative.
Issue No.3:- In the Affirmative.
Issue No.4:- Does not survive for consideration. Issue No.5:- In the Negative Issue No.6:- As per final order for the following:-
8. Issues No.1 to 3: Since all these issues are interlinked with each other, they are taken up together for discussion for the sake of convenience and to avoid repetition of facts.
9. A perusal of the pleadings of both the parties indicates that are some admitted facts between the parties. The fact that the plaintiff and defendant are known to each other since several years is not in dispute. It is not disputed that the defendant had some financial transactions with the plaintiff in the year 2008 and 09. It is not in dispute that the signature found on 8 O.S.9481/2015 Ex.P.1 belongs to defendant. It is not in dispute that the complaint filed in CC 1493/2013 against the defendant for offence punishable U/Sec. 138 of Negotiable Instruments Act ended in conviction as per copy of the judgment dt.6.9.2016 produced by plaintiff along with memo.
10. In the light of these undisputed facts, I proceed to appreciate and evaluate the oral and documentary evidence let in by both the parties to ascertain the points in controversy. Obviously the burden is on the plaintiff to prove that the defendant having borrowed hand loan of Rs.10 lakhs, issued cheque dt.28.11.2012 for Rs.10 lakhs towards repayment of loan amount.
11. In this regard, the plaintiff stepped into the witness box as PW1 who in his evidence has reiterated the averments of the plaint and he got marked documents i.e., certified copy of cheque as per Ex.P.1, certified copy of bank endorsement as per Ex.P.2, certified copy of bank challan as per Ex.P.3, certified copy of notice and reply notice as per Ex.P.4 and 5; certified copy of complaint and deposition in CC 1493/2013 as per Ex.P.6 and 7. 9 O.S.9481/2015
12. In the cross-examination, PW1 states that he was doing business of supplying MICR Ribbons to the bank during the year 2007-08. At present he is doing business of supplying consumables to digital duplicating machines. He was having income of Rs.12,000/- p.m. during the year 2007-10. He was not an income tax assessee. His wife is working as accountant in Malleshwaram Jeep Academy since last four years and she is getting salary of Rs.15,000/- p.m. His father owned a house at Mysore and his brother purchased the said house by giving value of his share in the house to the tune of Rs.20 lakhs. His brother paid Rs.20 lakhs in cash in the year 2007. He had no other income except Rs.12,000/- p.m. during the year 2007 to 2010. His father has also executed gift deed in favour of his brother. He had not informed the Income Tax Department authorities regarding receipt of Rs.20 lakhs from his brother and he invested the said amount in his business. He knows Raghavendra, who is son of defendant, since 2007, who was running wine shop. The son of the defendant owned 3-4 wine shop. He does not know the income of the son of defendant. Defendant is the mother of Raghavendra. The defendant and her son used to avail loan 10 O.S.9481/2015 amount from him since 2008. The defendant and her son used to obtain loan amount from him of Rs.50,000/-, 1,00,000/- , 2,00,000/- and 3,00,000/- and used to return the same afterwards. The defendant and her son obtained loan amount on about 7 to 8 occasions. He was not charging any interest on the said loan amount. He was not lending the money on interest. He gave loan amount of Rs.11 lakhs to the son of the defendant in the month of March 2010.
13. During the second week of March 2010 he advanced loan amount of Rs.10 lakhs to the defendant in cash. He had not obtained any documents from defendant and her son as security. No talks were held for payment of any interest. Nobody was present in the house when he advanced said hand loan to defendant and her son.
14. He had filed complaint against the son of the defendant in the month of March-April 2013 before Yelahanka Police. He had filed said complaint requesting the police to recover the loan amount from the son of defendant. He had not mentioned the name of present defendant in the said complaint. 11 O.S.9481/2015
15. He states that when he filed complaint against defendant before Yelahanka police, the defendant and her son had not yet issued the cheques in question in his favour. The police had called the defendant to the Police Station and directed the son of defendant to return the loan amount. But he failed to repay the loan amount. The police might have closed the complaint. The police did not record the statement of himself and the son of defendant and he does not know when the complaint came to be closed by police. He states that till his complaint was closed by the police, the defendant and her son had not issued the cheque in question.
16. One and half months or two months after the closure of the complaint by Yelahanka police, the defendant and her son voluntarily came to his house and handed over the three cheques in his favour. Since he has produced the original cheque in the complaint filed under Sec.138 of Negotiable Instruments Act, he has produced the certified copy of the cheque in this case. He denied the suggestion that the hand-writing found in the said cheques belongs to him.
12 O.S.9481/2015
17. In the complaint filed by him in CC 1427/2013 and CC 1493/2013 against the defendant and her son, the evidence is already recorded. He admits that the defendant has produced letter stated to have been written by him in the said complaint. The said letter was sent to Truth Labs, Hyderabad for expert opinion. He denied the suggestion that he advanced loan amount to the defendant and her son in the year 2007-08 and he obtained three signed blank cheques from them. He denied the suggestion that though the defendant and her son repaid the loan amount, but he failed to return those three signed cheques.
18. He denied the suggestion that he had no monetary capacity to advance the loan amount of Rs.21 lakhs in the month of March 2010 in favour of the defendant and her son. He denied the suggestion that the defendant and her son never obtained said loan amount of Rs.10 lakhs and Rs.11 lakhs respectively from him in the month of March 2010. He denied the suggestion that by mis-using those signed blank cheques he got filed this false suit for making wrongful gain.
13 O.S.9481/2015
19. He admits that due to love and affection, his father has executed gift deed as per Ex.P.1 in favour of his brother. There is no mention in Ex.P.9 as to payment of any amount by his brother. He admits that as per Ex.P.11 bank statement he had possessed bank balance of up to Rs.02 lakhs. He had not produced bank statements pertaining to the year 2010-11. He has not produced any documents to show that he was having Rs.21 lakhs in the year 2010-11. He denied the suggestion that he did not possess amount of Rs.21 lakhs in the year 2010-11. He denied all other suggestions by defendant.
20. On careful appreciation and evaluation of evidence of PW1 coupled with contents of Ex.P.1 to 7, it can be said that though the PW1 states that he had advanced hand loan amount of Rs.10 lakhs to the defendant and Rs.11 lakhs to the son of the defendant in the year 2010, he has not produced any substantive material to believe that he had capacity to lend such amount to the defendant and her son during that period. Because, he has not produced any records to show that he had cash of Rs.21 lakhs in his house as on the date of advancing hand-loan to the 14 O.S.9481/2015 defendant and her son. Further, it has come in his evidence that he was having income of Rs.12,000/- only per month during the period of 2007-10 and except the said income, he had no any other means during that period. This fact goes to the root of the case and creates doubt as to the capacity of the plaintiff to lend such amount.
21. However, PW1 has stated that his brother paid Rs.20 lakhs in installments to him. But in this regard, he has not produced any material to appreciate and substantiate his contention. Even the plaintiff has not taken ay pains to examine his brother to establish that he received Rs.20 lakhs from his brother. Even otherwise, he has not shown the receipt of Rs.20 lakhs from his brother in his income tax returns. So, it would be very difficult to place reliance on the bald say of PW1 to hold that he had retained and kept cash amount of Rs.20 lakhs in cash in the house itself so as to lend the same to defendant and his mother. Even otherwise, the plaintiff has not obtained any receipt for having paid such amount to defendant and her son for reasons best known to him. The thing would have been different 15 O.S.9481/2015 if the plaintiff were to obtain any promissory note or receipt for having advanced such huge hand loan amount to the defendant and her son. No prudent man would lend such huge amount of Rs.21 lakhs to the defendant and her son without obtaining any documents, evidencing the transaction. He has not explained as to why he did not obtain any security for having lent such hand loan amount to defendant and her son. So, all these facts would create doubt as to the actual payment of such hand loan to defendant and her son.
22. Furthermore, it is elicited in the cross-examination of PW1 that the complaint was filed against son of defendant before Yelahanka police in the month of March/April 2013 requesting the police to recover the loan amount from son of defendant. But the plaintiff has not produced any copy of said complaint, nor his statement alleged to have been recorded by the police in this regard. Further, he states that when he approached Yelahanka police requesting them to recover hand loan from the defendant and her son in the year 2013, the cheque in question was not yet issued by the defendant. Similarly, son of defendant had also not 16 O.S.9481/2015 issued the cheque towards repayment of hand loan amount when he filed such complaint before the Yelahanka police in the year 2013.
23. If this version of PW1 is to be believed as true, then his contention that the defendant and her son issued cheques for Rs.10 lakhs and Rs.11 lakhs respectively by putting dates as 28.11.2012 towards repayment of loan, would be a falsity. Because, PW1 himself gives clear go bye to his earlier version by stating that only after he filed complaint before Yelahanka police in the year 2013, the cheques in question had been issued by defendant and her son. If really the defendant and her son were to issue such cheques towards repayment of any debt or liability in the year 2013, question of issuing cheques dt.28.11.2012 would not arise. So, the plaintiff himself is not sure as to when exactly the cheques in question have been issued by the defendant and her son towards repayment of hand loan amount.
24. Furthermore, PW1 goes to the extent of deposing that only after closure of complaint filed before Yelahanka police, the defendant and her son voluntarily came to his house and 17 O.S.9481/2015 issued in all three cheques towards repayment of hand loan amount. If this version is to be believed, then the very claim of plaintiff that the defendant and her son issued cheques on 28.11.2012 is to be discarded.
25. Having regard to all these facts, it can be said that the evidence of PW1 itself creates doubt as to the alleged transaction between himself and the defendant.
26. On the contrary, it is the defence set up by defendant that the cheque in question along with other two signed blank cheques, have been issued only as security towards the loan transactions that had taken place during the year 2007 and 2008 and same is probable and believable one. Anyhow, heavy burden casts upon the plaintiff to establish that he had such capacity to lend hand amount of Rs.21,00,000/- to the defendant and her son in the year 2010 and 2011. It is for this reason the defendant sets up a specific defence that the cheques in question have been misused by the plaintiff for making unlawful gain. 18 O.S.9481/2015
27. Therefore, looking into the material admissions elicited in the cross-examination of PW1 by the defendant it can be said that the plaintiff has failed to prove that he had sufficient means and capacity to lend an amount of Rs.10 lakhs to the defendant and Rs.11 lakhs to the son of defendant during the year 2010 and 2011.
28. Moreover, the plaintiff has not stated as to when exactly, the loan transaction has taken place. It is his evidence that he paid a sum of Rs.10 lakhs to the defendant on several occasions during the year 2010 and 2011 and the defendant had agreed to repay the same within three months. This vague statement does not disclose as to when and where the loan amount have been disbursed by the plaintiff in favour of the defendant and her son. As such, I am of the view that the plaintiff has failed to establish that he had monetary capacity to lend such huge hand loan to the defendant and her son as averred in the plaint. Such being the fact, merely because, the signatures found on the cheques have been admitted, that does not shift the burden of proof on the defendant and her son.
19 O.S.9481/2015
29. From the materials placed record, it goes to show that the plaintiff failed to establish his financial capacity to lend money to the defendant and her son during the year 2010 and
11. When the plaintiff failed to establish his financial capacity to lend the said huge money, he will not be benefited only because the cheque in question bears the signature of defendant. In this regard, I am supported by an authority reported in 2015(4) Kar.L.J. 118 (SC) in the case of "K.Subramani Vs. K.Damodara Naidu", wherein the Hon'ble Supreme Court held as under:-
"Negotiable Instruments Act - Sec.138 and 139 - Complaint lodged under Sec.138 against accused - Whether an action under Section 138 for dishonour of cheque is complainant required to establish his financial capacity to lend money? - Will not presumption under Section 139 accrues to the benefit of complainant unless accused rebuts that presumption?"
30. On perusal of the above said authority, it is amply clear that though Sec.139 of Negotiable Instruments Act provides presumption, same is a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally 20 O.S.9481/2015 enforceable debt or liability can be contested. Herein this case, the plaintiff failed to produce substantive his evidence to show that he had sufficient source of income to lend such huge hand loan to the defendant and her son. Therefore, the presumption under Sec.139 of Negotiable Instruments Act is not available to the plaintiff in the case on hand.
31. Similar view was taken by Hon'ble Apex Court in the case of "Krishna Janardhan Bhat Vs. Dattatraya G.Hegde"
reported in 2008 AIR SCW 738, wherein it is held as under:-
"Presumption under Sec.139 of Negotiable Instruments Act merely raises presumption in favour of holder of cheque that same has been issued for discharge of any debt or other liability, but the said presumption is rebuttable one."
It is also observed that :-
"inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies."21 O.S.9481/2015
In the above said authority, Hon'ble Supreme Court has also observed that:-
"Ordinarily in terms of Section 269-SS of the Income-tax Act, any advance taken by way of any loan of more than Rs.20,000/- was to be made by way of an account payee cheque only."
Herein this case, if at all the plaintiff were to possess such an amount with him, nothing prevented him to issue loan amount of Rs.10 lakhs to the defendant by way of cheque/s. It is further observed in the above said authority that:-
"the defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant or proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference 22 O.S.9481/2015 to the circumstances upon which he relies. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties, but also by reference to the circumstances upon which he relies."
Herein this case though the plaintiff asserts that he had received Rs.20 lakhs from his brother and kept the said amount in the house and then paid the same to defendant and her son, he neither examined his brother nor produced any material to show that his brother by alienating any property gave share of plaintiff to the tune of Rs.20 lakhs by cash. So, this circumstance rather comes to the assistance of defendant to contend that though no such loan transaction has taken place, the plaintiff misused the cheques which were given as security towards the previous financial transactions. Therefore, it goes to show that the plaintiff had no sufficient means or capacity to pay such hand loan to the defendant and her son during the year 2010 and 11. So from the above said authorities, it becomes amply clear that merely because the plaintiff is the payee of cheques in question, it does not conclusively establish that the said cheques were issued in his favour towards discharge of any legally recoverable debt or 23 O.S.9481/2015 liability. Under these facts and circumstances, it cannot be said that the cheques in question were for repayment of loan amount.
32. Further, I am also supported by another authority reported in ILR 1992 KAR 1660 in the case of "Armugam Vs. Channagiri N.Govindaraj Shetty" wherein Hon'ble High Court of Karnataka held as under:-
"Negotiable Instruments Act - Sec.6 - Payment by cheque: not prima facie evidence of advancing loan:
not irrebuttable presumption of law: to be shown by another evidence that cheque issued was for money lent - Burden on defendant to prove special plea."
On perusal of the above said authority, it is clear that mere issuance of cheque is not prima facie evidence of advancing loan. It is permissible in law to show by other evidence that the cheque issued, was not to extinguish debt, but it was for money lent.
33. The ratio observed in the above said authorities is aptly applicable to the case on hand. In the instant case, the plaintiff has not produced acceptable evidence to believe that he had such monetary capacity at the relevant point of time to lend 24 O.S.9481/2015 such huge hand loan amount to the defendant and her son. As observed, even the plaintiff neither examined his brother for having received Rs.20 lakhs nor produced any conveyance deed to show that his brother alienated the property and paid Rs.20 lakhs to him. Therefore, the plaintiff has failed to prove that he had capacity to lend such huge amount as hand loan to the defendant and her son.
34. During the course of arguments, learned counsel for plaintiff has referred to the authorities reported in a) AIR 1957 SC 857; b) AIR 1984 NOC 306 and c) AIR 1968 BOMBAY 112; which deal with proof of genuineness of contents of documents. I have gone through the said authorities. I do admit the preposition of law laid down in the above said authorities with regard to proof of contents of documents by proving signature. But the facts and circumstances involved in the above said authorities, are entirely different to the facts and circumstances of the case on hand. As such the ratio observed in the above said authorities is distinguishable on the facts involved in the case on hand. Hence, 25 O.S.9481/2015 the ratio observed in the said authorities is not aptly applicable to the case on hand.
35. On the contrary, the learned counsel for defendant also referred to an authority reported in AIR 1966 SC 1457 in the case of The Roman Catholic Mission Vs. The State of Madras and another. This citation is with regard to production of original documents. I have gone through the above said authority, wherein it is held that under Sec.65 of Evidence Act, when originals not produced and no foundation laid for establishment of right to give secondary evidence, copies of originals not admissible in evidence. Relying on the above said authority learned counsel for defendant argued that when the plaintiff has not produced the original documents including the cheques, the copies of originals are not admissible. I do not find any force in the said arguments for the reason that though the original cheques are not produced in the case on hand, the certified copies of the documents are produced and they are not disputed by the defendants. Moreover, the original documents are produced before ACMM Court in the complaint filed under Sec.138 26 O.S.9481/2015 of Negotiable Instruments Act. Further, the defendant has not objected for marking the certified copies of the documents during the course of evidence. So at this stage, he is not expected to contend that since the original documents are not produced, copies cannot be looked into. Hence, the arguments advanced by the learned counsel for defendant relying on the above said authority, holds no water.
36. During the course of arguments, learned counsel for plaintiff has strenuously argued that since the defendant is already convicted by ACMM Court for offence punishable U/Sec. 138 of Negotiable Instruments Act, the suit may be decreed believing the loan transaction. But I do not find any force in the said arguments for the reason that the burden of proof U/Sec. 138 of Negotiable Instruments Act is entirely different to that of a suit for recovery of amount. Further, in a complaint u/s 138 of N.I.Act, the presumption under Sec.139 of Negotiable Instruments is available to the effect that the drawer of cheque is presumed to have issued such an instrument towards repayment 27 O.S.9481/2015 of legally recoverable debt or liability. But herein this suit, no such presumption is available to the plaintiff to prove his case.
37. Further, though the defendant admits her signature on the cheque in question, it does not mean that the contents of the cheque are deemed to have been proved. The heavy burden casts upon the plaintiff to prove that the cheque in question was issued by the defendant towards repayment of hand loan amount. In civil suit, preponderance of probability is to be seen. Therefore, the conviction of the defendant for an offence under Sec.138 of Negotiable Instruments Act does not come to the aid of plaintiff in the case on hand to contend that the loan transaction as alleged, has taken place between himself and the defendant. Therefore, no reliance could be placed on the judgment of conviction passed for an offence punishable U/Sec. 138 of Negotiable Instruments Act against the defendant so as believe the loan transaction in the case on hand. Therefore, the plaintiff has failed to prove that he had capacity to lend such huge loan amount of Rs.21 lakhs to the defendant and his mother.
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38. On the other hand, the defendant examined herself as DW1 who in her evidence has spoken to the facts in similar to that of the defense set up by her in the written statement. The sum and substance of his evidence is that she never approached the plaintiff to avail hand loan of amount of Rs.10 lakhs nor issued any cheque towards repayment of said loan amount. It is her evidence that in view of her money transactions with the plaintiff in the year 2008-09, herself and her son had given blank signed cheques as security to the plaintiff. Though her son received Rs.5,00,000/- from the plaintiff, he has already repaid said amount. The plaintiff executed a letter for having received blank signed cheques as security for the loan amount of Rs.5,00,000/-. Now the plaintiff by mis-using the cheques for Rs.10,00,000/- in her name and Rs.11,00,000/- in the name of her son, filed these false suits. It is also her evidence that since the plaintiff denied his hand-writing found in the letter written by him, her son got referred the same for opinion of hand-writing expert. The report of hand-writing expert confirms that the hand- writing found on the letter pertains to the plaintiff. Thus it is clear that the plaintiff having received the blank signed cheques mis- 29 O.S.9481/2015 used the same and got filed the false suit and hence prayed to dismiss the suit. In her evidence the certified copy of the letter written by plaintiff is got marked as Ex.D.1 and the report of Truth Lab is got martked as Ex.D.2.
39. In the cross-examination on behalf of the plaintiff, DW1 states that she does not know who has written contents of Ex.D 1. She denied the suggestion that Ex.D.1 has been created. She did not file complaint against the plaintiff before the police alleging misuse of cheques. She denied the other suggestions.
40. On careful appreciation of evidence of DW1 coupled with contents of Ex.D.1 and Ex.D.2, it can be said that her evidence is probable and believable. Her evidence is sufficient to believe that the plaintiff obtained blank signed cheques as security towards the loan transactions that had taken place during the year 2008-09. Here in this case, the son of defendant got obtained the expert opinion i.e., Hand-writing expert as per Ex.P.2 with regard to Ex.D.1. On perusal of contents of Ex.D.1 and D2, it can be said that signature found on Ex.D.1 and the admitted signature of plaintiff are one and the same. This fact 30 O.S.9481/2015 strengthens the defence set up by the defendant that she gave blank signed cheques as security towards financial transactions that had taken place during the year 2008-09. When it is clear that the signature found on Ex.D.1 pertains to plaintiff, the burden shift on him as to why he put his signature on Ex.D.1. But nothing has been explained by PW 1 as to why his signature appears on Ex.D.1.
41. Furthermore, the defendant issued reply notice as per Ex.P.5 denying issuance of cheques of Rs.10 lakhs and cheque of Rs.11 lakhs by herself and her son. She has also stated regarding the issuance of blank signed cheques as security towards financial transactions of the year 2008-09. Further more, the very PW1 in his cross-examination states that only after filing the complaint before the police in the year 2013, the defendant and her son voluntarily issued the cheques for Rs.10 lakhs and Rs.11 lakhs respectively. If it is held to be true, then issuance of cheques dt.28.11.2012 i.e., prior to the alleged date of filing of complaint would not arise. So, all these material facts elicited from the mouth of PW1 in the cross-examination as well as the 31 O.S.9481/2015 facts narrated by DW1 in his evidence, would create doubt as to the borrowing of said hand loan by the defendant and her son from the plaintiff.
42. Further, as observed above, when the plaintiff failed to discharge his burden that he had sufficient capacity to lend such loan amount to the defendant and her son during the year 2010-11, question of issuance of cheques by the defendant and her son towards repayment of said hand loan amount would not arise. The plaintiff is not expected to rely on the weaknesses of defendant to prove his case.
43. Furthermore, no specific dates of loan transaction have been revealed by the plaintiff. It is vaguely stated by the plaintiff that during the year 2010-11, he paid hand loan amount on several occasions to the tune of Rs.10 to the defendant and Rs.11 lakhs to the son of defendant. So, unless the plaintiff proves that he had sufficient means and capacity to pay the loan amount, question of he contending that the defendant and her son issued said cheques towards repayment of hand loan amount does not arise.
32 O.S.9481/2015
44. Having regard to all these facts and circumstances, I am of the considered view that the plaintiff has failed to prove that the defendant borrowed loan of Rs.10 lakhs in the year 2010 and 2011 and he further failed to prove that the cheque in question has been issued towards discharge of loan liabilty. On the other hand, the defendant has placed ample materials on record to show that she handed over blank signed cheques as security towards loan transaction of 2008-09 to the plaintiff. As such plaintiff has failed to his case. Hence, I answer issue No.1 and 2 in the Negative and issue No.3 in Affirmative.
45. Issue No.4:- Though the defendant took a contention that the suit is barred by limitation, she has not pressed this issue during the course of arguments. As such this issue does not survive for consideration.
46. Issue No.5:- In view of my findings on issue No.1 and 2, the plaintiff is not entitled for any relief. Accordingly, I answer issue No.5 in the negative.
33 O.S.9481/2015
47. Issue No.6:- In view of my findings on issue No.1 to 3, the suit of the plaintiff is liable to be dismissed and in the result I proceed to pass the following:-
ORDER Suit of the plaintiff is hereby dismissed. Under the facts and circumstances, I direct both the parties to bear their own costs.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed and typed by him and then corrected and pronounced by me in the open court on this the 29th day of September 2016) (S.K.Vantigodi) LX Addl.City Civil & Sessions Judge, Bengaluru.
Annexures
1. List of witnesses examined on behalf of the Plaintiff/s:
PW1 N.Shilendra
2. List of witnesses examined on behalf of the Defendant/s:
DW1 T.Lakshmi
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P.1 Certified copy of cheque
Ex.P.2 Certified copy of bank endorsement
Ex.P.3 Certified copy of bank chalan
Ex.P.4 Certified copy of legal notice
Ex.P.5 Certified copy of reply notice
Ex.P.6 Certified copy of evidence of complainant
in CC 1493/2013
34 O.S.9481/2015
Ex.P.7 Certified copy of evidence of accused
T.Lakshmi in CC 1493/2013
4. List of documents marked on behalf of the defendant/s:
Ex.D.1 Certified copy of letter written by plaintiff Ex.D.2 Report of Truth Lab LX Addl.City Civil & Sessions Judge, Bengaluru