Delhi District Court
Pankhi Lal Meena vs . Dr. Laxman Singh Meena on 19 December, 2022
Pankhi Lal Meena vs. Dr. Laxman Singh Meena
IN THE COURT OF SH. ALOK SHUKLA,
ADDL. DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR No.:- DLCT01-008222-2022
RCA No.:- 10/2022
RCA DJ No.:- 76/2022
IN THE MATTER OF :-
Pankhi Lal Meena
s/o Late Sh. Manohar Lal Meena,
R/O H.No. 55, Gupta Colony,
Lakad Pur, Near Dayal Bagh,
District Faridabad, Haryana
.... Appellant
Vs.
Dr. Laxman Singh Meena, PhD,
S/O Sh. Tej Ram Meena,
R/O Village Jivali, PS Bazirpur,
Distt Swai Madhopur, Rajasthan
Also at:
Principal Scientist, CSIR- Institute of Genomics
and Integrative Biology, Delhi University Campus,
Mall Road, Delhi 110007, India
Also at:
R/O Type-IV, Quarter No. 22,
CRRI Staff Colony, Maharani Bagh,
New Delhi 110065
.... Respondent
RCA No.76/2022 Page 1 of 26
Pankhi Lal Meena vs. Dr. Laxman Singh Meena REGULAR CIVIL APPEAL UNDER ORDER 96 OF CPC FOR SETTING ASIDE JUDGMENT & DECREE DATED 06/04/2022 PASSED BY LD. CIVIL JUDGE, TIS HAZARI COURTS, DELHI IN SUIT NO. 94362/2016 WHEREBY SUIT OF THE RESPONDENT/PLAINTIFF WAS ALLOWED AND DECREED.
Date of institution of the Appeal : 25.05.2022
Date on which Judgment was reserved : 02.12.2022
Date of Judgment : 19.12.2022
::- J U D G M E N T -::
1 The appellant was defendant and the respondent was
plaintiff before the Ld. Trial Court. Appellant and respondent are respectively referred in this Judgment according to the original status before the Ld. Trial Court. Succinctly, the plaintiff/respondent has filed a suit for recovery of Rs.2,15,600/- with pendente lite and future interest. The suit of the respondent/plaintiff was decreed by the Ld. Trial Court vide Judgment and decree dated 06/04/2022. Being aggrieved by the judgment and order dated 06/04/2022, the appellant/defendant has filed the present appeal.
RESPONDENT /PLAINTIFF CASE :
2 Respondent/plaintiff had filed the suit on the following averments :RCA No.76/2022 Page 2 of 26
Pankhi Lal Meena vs. Dr. Laxman Singh Meena "(i) The plaintiff is a law abiding citizen of India and is a govt. employee and has been working as Principal Scientist and the defendant is well known to plaintiff and vice versa since long time and being a close relative the defendant gain faith of plaintiff and thereby the defendant have managed to obtain friendly loan on 21.12.2012 and again on 25.01.2013 from the plaintiff for Rs. 80,000/- and Rs. 60,000/-
respectively. Against the said liability the defendant has issued post-dated cheque bearing no. 111043 dated 28.02.2013 of Rs.1,40,000/- (Rupees one lakh and forty thousand only) of Oriental Bank of Commerce, in favour of plaintiff to discharge abovesaid liability. The plaintiff on the same friendly faith and pattern accept term of the defendant and in a good faith has receipt/acknowledged the post-dated cheque with the assurance of the defendant that the same will be honoured as and when the same shall be presented to the bank after its maturity. The plaintiff has presented the said cheque with his bank i.e. state Bank Of India in his Account No. 00000010851402935 as per the promises and assurances of defendant that the same will be honoured as and when the same will be presented, but the same was returned dishonoured as per the return Memorandum "due to Payment stopped by drawer" from the Account No. 52032151002544 of defendant. The plaintiff was shocked to receive the above said bank Memo/advice and had to bear a financial loss due to false promises and gimmick tactics of defendant. The defendant has issued the said cheque knowing the best that the same will not be honoured as and RCA No.76/2022 Page 3 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena when the same will be presented as the payment was stopped with it motive to gain illegally and to cause losses to the plaintiff. That inspite of repeated request to the defendant by the plaintiff and his relatives, the defendant has failed to return the said amount and rather extended the threat of dire consequences. Accordingly, the matter was delayed and for which the plaintiff was even unable to file the case U/S 138 and any other appropriate section of NI Act. Finding no option, the plaintiff again warned the defendant not to play gimmicks and dilatory tactics. After putting great efforts the plaintiff has constrain to take shelter of law for recovery the outstanding amount. It is therefore, apparent that the defendant had deliberately issued the said cheque knowing fully well that the defendant will play fraud upon the plaintiff towards discharging his liability. The defendant therefore played serious fraud upon the plaintiff and have rendered himself liable to be punished under Section 420 of Indian Penal Code and 138 of Negotiable Instruction Act. That as per the financial norm and agreed between the parties, the defendant is further liable to pay the interest and damages and cost of litigation. The plaintiff was shocked to receive such a cold behaviour from the defendant. The defendant miserably failed to comply with the promises despite the fact that the plaintiff had approached several times, but to the utmost shock and surprise of the plaintiff, the defendants tried to delay the matter from one pretext to another. From the conduct of the defendant, it is apparent that the defendant had no intention to pay the amount to the RCA No.76/2022 Page 4 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena plaintiff. As on date the pending amount is Rs. 2,15,600. In bifurcation (Rs. 1.40,000 as cheque amount interest thereon @ 18% is Rs. 75,000/-). The plaintiff has not claimed any such relief which does not fall within the ambit and scope of Order XXXVII CPC and claims summary trial of the suit as the defendant has no defence against the claim of the plaintiff. The plaintiff in these circumstances has been left with no other alternative remedy but to file the present suit for recovery".
3 Summons for appearance was sent to the defendant on 22.02.2016 and thereafter Ld. Counsel for defendant entered appearance 06.04.2016. Thereafter an application for issuance of summons judgment was moved by plaintiff and application for leave to defend moved by defendant. Vide order dated 14.12.2016, application for leave to defendant was allowed and thereafter written statement was filed by defendant.
4 On 04.02.2016, written statement was filed by the defendant contesting the case of the plaintiff as under:
"(i) That the plaintiff has not come to this Court with clean hands and has suppressed the material facts from this Court.
(ii) It is submitted that the plaintiff has filed the present suit with respect to the personal loan 2. That suit of the plaintiff is not maintainable, as the same has been based on false and frivolous issues. The allegations levelled in the suit RCA No.76/2022 Page 5 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena by the plaintiff is moonshine and illusory, hence on this ground the suit is liable to be rejected.
(iii) The suit of the plaintiff is the sheer misuse of process of law. It is the plaintiff who has mislead this Court. The defendant has never taken any friendly loan from the plaintiff due to said reason the plaintiff has not entitled to file the present suit for recovery against the defendant and on this fact alone the suit of the plaintiff is liable to be dismissed.
(iv) The suit is also not maintainable in the eyes of law because the suit of the plaintiff has been filed without any cause of action. No cause of action has ever been arisen in favour of the plaintiff as alleged and the suit is liable to be dismissed. The suit of the plaintiff is not maintainable in view of the fact that the plaintiff has not produced any substantial document for fixed liquid money or where the sum sought to be the recovered has a fixed sum of money against the defendant, as such, the present suit is liable to be dismissed.
(v) The plaintiff and defendant having family relation and both are brother in family relationship. The plaintiff and defendant and his family members are occasionally visited the house to each other. The plaintiff has filed the suit mainly based on present disputed cheque, dated 28.02.2013 but cheque has itself clarify that defendant has only signed on the cheque and other particular of the cheque has not different hand writing and different ink. The defendant has never issued the present cheque in question to the plaintiff RCA No.76/2022 Page 6 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena for the present disputed friendgly loan, that plaintiff has filed the presents Suit with the concocted story.
The defendant has filed the police complaint at PRALADPUR POLICE STATION on date 02.02.2013 for the lost of cheque in question and also defendant given the application for stopping payment to his bank for restraining the illegal use of cheque in question.
(vi) The plaintiff sent the legal demand notice date 04.02.2015 for filing the U/S 138 N.I. Act case to the defendant thereafter defendant has come to know that the present cheque in question has kept in the hand of plaintiff, thereafter plaintiff and defendant his elder family member get together and both are mutually agreed that defendant has not taken legal action against the plaintiff for misuse of the cheque in question in further because for the reason behind it plaintiff and defendant family has respect and high position in the society. These documents have been placed before this Court with a view to get unlawful, illegal advantage hence, the plaintiff has committed fraud, tampering of the documents and forgery, hence the plaintiff and along-with other associated are liable for criminal offence.
(vii) The defendant may be moving separate application u/s 340 Cr.PC. The plaintiff is also silent about the present friendly loan amount that how the plaintiff has arranged the present disputed loan amount even plaintiff has not filed his bank account statement in which plaintiff has transferred the friendly loan amount to the defendant bank account. The RCA No.76/2022 Page 7 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena complete plaint in vague and suit liable to be dismissed. In view of the above mentioned facts and circumstances, the plaintiff hus no locus standi to file the present suit. The suit of the plaintiff is also not maintainable because the plaint is neither properly verified nor supported by an affidavit as required U/o VI Rule 15 (4) CPC, hence the same is dismissed with cost. No cause of action has arisen in favour of the plaintiff and against the defendant, as such the present suit is liable to be dismissed under order VII Rule 11 of the Code of Civil Procedure, with costs.".
REPLICATION 5 No replication to the written statement was filed by the plaintiff.
ISSUES 6 Based upon the pleadings of the parties, following issues were framed of 07.04.2017:-
i. Whether the plaintiff is entitled for recovery as prayed for? OPP.
ii. Whether the plaintiff has committed tampering and forgery on the cheque? OPD.
iii. Relief.RCA No.76/2022 Page 8 of 26
Pankhi Lal Meena vs. Dr. Laxman Singh Meena EVIDENCE OF THE PLAINTIFF AND DOCUMENTS RELIED UPON.
PLAINTIFF'S EVIDENCE
7 In plaintiff's evidence plaintiff examined himself as PW-1. PW-1 in his affidavit in evidence i.e. Ex. PW-1/A, has reiterated the contents of the plaint. Thereafter PW-1 was thoroughly cross examined by Ld. Counsel for defendant. It is stated by PW-1 in his cross examination that he had not informed his department regarding the financial dealings of the present case. He voluntarily stated that the same is not required as, as per the rules he is not required to disclose the financial dealings equal to the basic pay/salary of two months. It is admitted by the witness that prior to this transaction the defendant used to take money and return him thereafter. Further it is admitted that no receipts of money were being issued during the previous transactions. It is voluntarily explained that defendant used to acknowledge the payment in the diary. It is further stated by PW-1 that when the cheque in dispute i.e. Ex. PW-1/2 was given to him the defendant carried on the single cheque. It is further admitted that the defendant signed the cheque in his presence and asked him to fill the remaining material particulars in his own handwriting. It is further stated that he had mentioned the same in his demand notice i.e. Ex. PW- 1/5. He denied the suggestion that he had not given any loan to the defendant and that the defendant did not issue him RCA No.76/2022 Page 9 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena the cheque in question. PW-1 denied having any knowledge as to whether any criminal FIR is pending against him filed by the defendant. It is further admitted by PW-1 that some of their relatives are aware about the transaction and it is also admitted that both his parents and brothers have knowledge about the present transaction.
8 Thereafter, plaintiff examined Sh. Yashu Sharma, Assistant Manager, Bank of OBC, DAV, Kailash Hill Delhi as PW-2, PW-2 in his examination in chief stated that he has brought the statement of account no. 52032151002544, which is in the name of Sh. Pankhi Lal Meena, s/o of Sh. Manohar Lal Meena. The cheque bearing no. 111043 dated 28.02.2013 has been issued from account no. 52032151002544 by Sh. Pankhi Lal Meena. PW-2 admitted that the cheque no. 111043 was dishonoured for it was returned due to the reason "Payment stopped by drawer". PW-2 further stated in the application addressed to the Branch Manager, OBC Bank the reason given by account holder is "Shrimanji more se ek galat cheque issue ho gaya hain cheque no. 111043 hai, is cheque ko rokne ki kripya kare, mera account no. 52032151002544 hai. PW-2 was duly cross examined by Ld. Counsel for defendant. In his cross- examination PW-2 stated that he was posted at the present branch since June 2017. He further stated that he is not personally acquainted with the facts of the case and has deposed on the basis of documents provided to him by the branch manager. He further stated that he cannot say as to who has received the letter dated 02.02.2013 Ex. PW-2/1, He showed his RCA No.76/2022 Page 10 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena inability to tell as to whether the letter from point A to point B bears the signatures of any Bank Officials for having received from the defendant.
9 Plaintiff further examined his wife Smt. Kamla Devi as PW-3. PW- 3 in her affidavit in evidence has reiterated some of the contents of the plaint. PW-3 was thoroughly cross examined by Ld. Counsel for defendant. In her cross- examination PW-3 admitted that she is not much aware about the financial dealings done by her husband, however, she is aware of the transaction with the defendant. It is further admitted by PW-3 that when transaction of Rs. 60,000/- was carried out between her husband and the defendant and defendant issued cheque, apart from her family member Sh. Murari Lal Meena was also present there. Further it is admitted that her husband made both the payments i.e. 21.12.2013 and 25.01.2013 in her presence: It is further admitted that she was preparing tea when the said payment was made to the defendant. PW-3 further stated that her house comprises of four rooms with toilet bathroom and kitchen. It is further admitted by PW-3 that transaction took place in the room situated outside. It is further admitted that both the transactions took place at around 10.00 am on both the days.
10 Plaintiff further examined PW-4 Ct. Hoti Lal, PS Pal Prahladpur. PW-4 in his examination in chief stated that he was a summoned witness and that all the complaint register alongwith office copy of the complaint filed upto period RCA No.76/2022 Page 11 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena 30.06.2013 has been destroyed by their department. Report in this regard is filed today and the same is exhibited as Ex. PW- 4/1. PW-4 was not cross examined by Ld. Counsel for defendant despite opportunity. Plaintiff examined PW-5 Inspector Rajneesh. PW-5 in his examination in chief stated that record pertaining to the year 30.06.2013 has already been destroyed as per report Ex. PW-4/1. He further stated that DD entry with respect to complaint dated 02.02.2013 was made. PW- 5 was also not cross examined by Ld. Counsel for defendant despite opportunity. On 28.07.2018, plaintiff's evidence was closed.
DEFENDANT'S EVIDENCE 11 Thereafter the matter was fixed for defendant's evidence. In defendant's evidence, defendant examined himself as DW-1. DW-1 in his examination in chief by way of affidavit has reiterated the contents of the written statement. DW-I was thoroughly cross examined. In his cross examination DW-1 admits that he knows the plaintiff since the day he came to Delhi and the plaintiff has been residing in Delhi for past 15 years. On putting a specific question DW-1 admitted that both of them are in relation and visited each other's house. It is further admitted that their relation was a cordial one and they use to visit each other's house. It is further admitted that both of them used to stand with each other in the times of need. It is admitted by DW-1 that he has gone through the contents of the RCA No.76/2022 Page 12 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena affidavit and the same has been prepared under his instructions and that he has read the affidavit and has thereafter signed the same. DW-1 admits that the cheque in dispute is his. DW-1 further admits that signatures of the cheque in dispute is his. On putting a specific question it is admitted by DW-1 that he wrote a letter to the Oriental Bank of Commerce stating "Srimanji Mere Se Ek Galat Cheque kat Gaya hai". DW-1 denied having any knowledge as to if there is any amount from his account dishonoured for aforesaid cheque DW-1 voluntarily explained that he came to know about the dishonour of the cheque only after receiving the legal notice. It is further admitted that he has not pursued the complaint dated 02.02.2013. It is further admitted that he did not pursue the said complaint even after receiving the summons of the present case as his previous counsel advised him not to do so and said that the matter will be now settled in the court. It is admitted by DW-1 that he has never dealt with any monetary transaction with the plaintiff. He denied the suggestion that he has taken any money or given any money to the plaintiff till date. At this stage DW- 1 was shown his affidavit and to this he stated that he cannot read the same as he does not know much English. DW-1 denied the suggestion that he has wrongly stated in his affidavit in paragraph number three that there was a monetary transaction between him and the plaintiff. It is then admitted by DW-1 that the paragraph no.3 of affidavit in evidence has been drafted on his instructions. Thereafter, DW-1 admitted that the contents of paragraph 4 of his application are correct in which it is stated that the plaintiff has not filed the written loan agreement which was executed RCA No.76/2022 Page 13 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena between the plaintiff and the defendant for the friendly loan. It is then admitted by DW-1 that he gave Rs. 2 lacs as mentioned in paragraph no.3 of his affidavit in evidence on 25.11.2012. It is then admitted that they had met several times as they are relatives. It is then admitted by DW-1 that there was conversation with respect to the disputed cheque between him and the parents of the plaintiff 12 The Ld. Trial Court vide Judgment dated 06.04.2022 decreed the suit filed by the plaintiff and held the plaintiff entitled to the cheque amount i.e. Rs. 1,40,000/- alongwith interest @9% per annum from the date of issuance of cheque till its realization. Being aggrieved by the judgment and order dated 09.08.2018, the appellants/plaintiff have preferred the present appeal.
GROUNDS URGED BY THE APPELLANT/DEFENDANT IN THE PRESENT APPEAL & REPLY OF THE RESPONDENT/PLAINTIFF 13 It is urged on behalf of the appellant that the judgment/decree passed by the Ld. trial court is based on the conjecture and surmises and without any supporting evidence. It is urged on behalf of the appellant that the Ld. trial court has grossly erred in not considering that plaintiff has miserably failed to discharge his onus to prove issue no. 1.
14 Ld. counsel for the appellant has argued that there are material contradictions in the pleadings and the evidence led by RCA No.76/2022 Page 14 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena the plaintiff before the Ld. Trial Court. It is urged in the plaint and notice ExPW1/5, the plaintiff has stated that the post-dated cheque was issued by the defendant. Thereafter, the plaintiff made vital improvements in the re-joinder stating that the defendant has only signed the cheque and other particulars of the cheque were filled by plaintiff in front of the defendant. Thus, entire testimony of plaintiff i.e., PW1 is unreliable and is not worthy of credence. It has been further urged in the appeal that in his cross-examination plaintiff has given correct timings of the transactions, but failed to provide the denomination of the currency notes allegedly paid to the defendant. It is further urged on behalf of the appellant that the Ld. Trial Court has grossly erred in not taking judicial note of the fact that 21/12/2012 was a Friday and not a government holiday and the plaintiff has not averred in the plaint that he has taken leave on the said date. Thus, the plaintiff has miserably failed to prove the transaction. It is further urged on behalf of the appellant that PW2 who is wife of the plaintiff in her cross examination has admitted that she came to know about the payment of the money later. It is further argued that burden of proof was on the plaintiff who has failed to discharge the onus. It is further argued by the Ld. counsel for the appellant that the presumption under Section 118 (A) N.I. Act is not absolute and in the present case the defendant has duly rebutted the presumption. It has also been argued that Ld. trial court has failed to appreciate that the suit filed by the plaintiff was barred by limitation as the cause of action finally arose on 21/12/2012 and 25/01/2013, whereas the present suit was filed on 15/02/2016. Reliance is placed by RCA No.76/2022 Page 15 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena the appellant on the judgment passed in C.P. Kapoor vs. Chairman and ors. (2012) 10 DEL CK 0255 wherein it was held as under:
"10. It is settled law that parleys between the parties cannot be treated as a substitute for invoking legal remedies and nor can such correspondence enlarge the period of limitation for instituting appropriate legal proceedings."
15 It is also argued by the Ld. counsel for the appellant that the Ld. Trial Court has failed to appreciate the ratio laid down in Triyambak S. Hegde v. Sripad, (2022) 1 SCC 742. Ld. Counsel for the Appellant has argued that the Appellant had raised probable defence for rebutting the presumption U/s 139 NI Act and onus had shifted to the plaintiff as per law laid down in Triyambak case (2021) 09 SC CK 78 (para 14), Basalingappa case AIR 2019 SC 1983 (para 23) and Rangappa Case AIR 2010 SC 1898 (para 14). Reliance has also been placed on Bharat Barrel Case AIR 1999 SC 1008 (para 12), wherein Hon'ble Apex Court held that if it is shown that existence of consideration was improbable or doubtful, onus shifts on to plaintiff.
16 Ld. Counsel for the appellant has further argued that the different versions of the appellant/defendant regarding the issuance of of cheque in question i.e. the one given to bank and the other given to police is not relevant as Hon'ble Karnataka High Court in Dr. Jyoti Prasad case (2018) 07 KL CK 124 RCA No.76/2022 Page 16 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena (Kerala High Court) held that neither the weakness of the defence case nor the failure of the accused to prove his case will enable the complainant to succeed in a criminal prosecution. Burden is always on the complainant to establish that the cheques were issued by the accused (para 7). Hon'ble HC has considered the law laid down in Rangappa case and Bharat Barrel case. It was also held in the same para that admission of signature in a cheque will not constitute admission of execution of cheque.
17 On the other hand, Ld. counsel for the respondent has argued that the present appeal is not maintainable and is glaring example of misuse of law. Ld. counsel for the respondent has argued that judgment dated 06/04/2022 passed by the Ld. trial court does not calls for any interference and the same has been passed after due appreciation of the evidence in consonance with the law. Both the parties have also filed written submissions.
18 In the aforesaid background, the following points for determination arise for the consideration in the present appeal :-
(i) Whether the judgment passed by Ld. trial court is contrary to the facts, evidence on record and applicable law?
(ii) Whether the Ld. trial court has failed to appreciate that the defendant had raised probable defence rebutting the presumption u/s 139 N.I. Act and therefore the onus shifted to the plaintiff?RCA No.76/2022 Page 17 of 26
Pankhi Lal Meena vs. Dr. Laxman Singh Meena
(iii) Whether Ld. Trial court has failed to appreciate that the plaintiff has failed to discharge the onus?
(iv) What order?
CONCLUSION AND FINDING 19 Arguments were heard, record perused.
20 Appellant has urged that the suit filed by the plaintiff was barred by limitation. Although no issue was raised by the appellant/defendant before the Ld. Trial Court, it is evident from the record of the case, that the suit filed by the plaintiff was well within period of limitation. It is stated in the plaint that the defendant in discharge of his liability towards the loan amount of Rs.1,40,000/- had issued post-dated cheque in favour of the plaintiff bearing no. 111043 dated 28/02/2013 for an amount of Rs.1,40,000/- drawn on Oriental Bank of Commerce. It is settled law that the period of limitation for filing the suit of recovery will commence from the date when the amount became due. Hon'ble High Court in Ajanta Raj Proteins Pvt. Ltd. v. Himanshu Foods Pvt. Ltd., 2018 SCC OnLine Del 6874 discussed the issue of limitation as under:
21. There are other decisions of the Supreme Court and other courts in respect of bounced cheques, however, the same have been rendered in the context of the NI Act. The said judgments of the Supreme Court and other courts are not being discussed herein as the scheme of the NI Act is a special procedure which is unique to the said Act. In the case of Order XXXVII of the CPC, a suit which is based on monetary instruments for recovery of amounts that are due and payable, the Court would have to see as RCA No.76/2022 Page 18 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena to when the cause of action for filing of the suit arose. In a case like the present one, where there were a series of transactions between the parties and some amount remained outstanding, the giving of the cheque, which was given as a security, would not by itself construe the cause of action. It is only when the payment is not made and the person in whose favour, the cheque has been issued, seeks to encash the cheque and it is thereafter dishonoured, that the right to sue itself arises. Until and unless the cheque is dishonoured, the Plaintiff cannot maintain a suit under Order XXXVII of the CPC in case of a cheque. There could be a situation where a cheque which has been issued as security for a future payment would be presented only when amounts become due and payable in future. The law of limitation has been designed not to reject claims of parties but to only ensure that old claims are not re-agitated and there is a finality after a particular period.
21 In the present case the cheque in question is dated 28/02/2013, which was dishonored on its presentment and the present suit was filed on 15/02/2016. Thus, the present suit has been filed within three years of the accrual of cause of action and the plea of the appellant that the suit filed by the plaintiff was barred by limitation is not tenable.
22 Further, qua the improvements as urged by the appellant, the record of the suit reflects that the plaintiff has consistently maintained that the post-dated cheque was issued by the defendant towards the discharge of liability of the defendant for an amount of Rs.1,40,000/- taken by the defendant from the plaintiff. Further the defendant has admitted his signatures on the cheque in question, though denied his liability and urged that the cheque was lost. The Hon'ble RCA No.76/2022 Page 19 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena Supreme Court in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 held as under:
33. A meaningful reading of the provisions of the Ne-
gotiable Instruments Act including, in particular, Sec- tions 20, 87 and 139, makes it amply clear that a per- son who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
23 Thus, the onus was on the defendant to adduce evidence to rebut the presumption that the cheque in question was issued for payment of a debt or in discharge of any liability. The Hon'ble Supreme Court in Basalingappa v. Mudibasappa, (2019) 5 SCC 418 summarised the principles regarding the presumption laid down under section 118(a) and 139 of the negotiable instruments as under:
25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, RCA No.76/2022 Page 20 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena we now summarise the principles enumerated by this Court in following manner:
25.1. Once the execution of cheque is admitted Sec-
tion 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other lia- bility.
25.2. The presumption under Section 139 is a rebut- table presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the ac- cused to rely on evidence led by him or the accused can also rely on the materials submitted by the com- plainant in order to raise a probable defence. Infer- ence 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 they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persua- sive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence.
24 It is no longer res integra that the presumption under section 139 of the negotiable instrument act can be rebutted by raising a probable defence as held vide catena of judgments viz.
RCA No.76/2022 Page 21 of 26Pankhi Lal Meena vs. Dr. Laxman Singh Meena Basalingappa v. Mudibasappa, Triyambak S. Hegde v. Sripad. Ld. Counsel for the appellant has argued that the defendant has raised a probable defence and thus the onus had shifted to the plaintiff. In this regard the reliance has also been place on the judgment passed in Dr. Jyoti Prasad case (2018) 07 KL CK 124 (Kerala High Court) to contend that the weakness of the case of the accused will not prove the case of the prosecution.
25 A civil case is decided on the basis of preponderance of probabilities. The Hon'ble High court in Rameshwar Dass v. Hakim Javed; 2012 SCC OnLine Del held as under:
'8. A civil case is decided on balance of probabili- ties. The balance of probabilities is arrived at after weighing the respective evidence which is led by both the parties.'
26 In M. Siddiq v. Suresh Das; (2020) 1 SCC 1720, the Hon'ble Supreme Court held as under:
The court in a civil trial applies a standard of proof governed by a preponderance of proba- bilities. This standard is also described some- times as a balance of probability or the prepon- derance of the evidence. Phipson on Evidence formulates the standard succinctly : If there- fore, the evidence is such that the court can say "we think it more probable than not", the bur- den is discharged, but if the probabilities are equal, it is not. [Phipson on Evidence.] In Miller v. Ministerof Pensions [Miller v. Minis- ter of Pensions, (1947) 2 All ER 372] , Lord Denning, J. (as the Master of Rolls then was) defined the doctrine of the balance or prepon- derance of probabilities in the following terms : (All ER p. 373 H) RCA No.76/2022 Page 22 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena "(1) ... It need not reach certainty, but it must carry a high degree of probability. Proof be-
yond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fan- ciful possibilities to deflect the course of jus- tice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sen-
tence, "of course it is possible, but not in the least probable" the case is proved beyond rea- sonable doubt, but nothing short of that will suffice."
(emphasis supplied) 27 There is glaring inconsistency in the stand of the appellant regarding the issuance of cheque in question. PW2 proved that the defendant wrote to the bank for stopping payment stating that the cheque has been wrongly issued contrary to the defence put forth by the defendant that the cheque was lost. Defendant who appeared as DW1 admitted taking both the stand. Further as rightly pointed out by the Ld. Trial Court there are contradictions in the testimony of DW1 with respect to the fact that there was no monetary transaction between the parties. However, he himself in his evidence by way of affidavit stated that there has been a transaction between him and plaintiff. The contradictions make the defence raised by the defendant shrouded with doubt shifting the preponderance of probabilities in favor of the plaintiff. Ld. Counsel for the appellant has argued that the presumption under section 139 of the negotiable instrument act stand rebutted by the defendant from the evidence led by the plaintiff himself. Though it is open to the defendant to rely upon the plaintiff's document to rebut the RCA No.76/2022 Page 23 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena presumption, however in the present case, the testimony of the plaintiff and other PWs are consistent with the case of the plaintiff and thus the Ld. Trial Court has rightly come to the conclusion that the Defendant who has admitted his signature on the cheque in question has failed to rebut the presumption in any way and in fact has various loop holes in his own testimony brought forth before the court. Further, the arguments by the Ld. Counsel for the appellant that PW3 has stated in his cross examination that she came to know later about the transaction between the plaintiff and the defendant. I do not find merit in the submission as PW3 in her evidence has stated that she was present when the transaction between the parties took place. The witness has stated that around 10 a.m. on both the days she came to know about the payment of money to Pankhi Lal Meena. The said statement given by the witness cannot be constituted that the witness came to know later regarding the payment of money by the plaintiff to the defendant as the said witness in her cross-examination and as well as in examination in chief has consistently maintained that the plaintiff who happens to be her husband, advanced loan to the defendant and the defendant issued cheque in her presence. It has also been argued that at time, when the transaction took place, PW3 was preparing tea and therefore could not have witnessed the transaction. No suggestion has been given to the witness by the defendant that the room where transaction took place is not visible from the kitchen. Nor any site plan has been proved by the defendant. Ld. RCA No.76/2022 Page 24 of 26 Pankhi Lal Meena vs. Dr. Laxman Singh Meena Counsel for the appellant has also argued that the Ld. Trial Court has failed to take judicial note of the fact that 21/12/2012 was a Friday and not a government holiday and the plaintiff has not averred in the plaint that he has taken leave on the said date. Defendant has not given any suggestion to the plaintiff on this aspect nor any such plea was urged in the written statement. A fact which has neither been pleaded nor argued before the Trial Court cannot be construed against a party. The defendant has not only failed to rebut the presumption under section 139 of the NI Act, his testimony is also full of material contradictions. Thus the Ld. Trial Court has rightly concluded that the plaintiff has discharged the onus that was on him, whereas the defendant has failed to rebut the presumption in any way and has various loop holes in his own testimony.
28 Accordingly, I do not find any infirmity in the judgment passed by the Ld. Trial Court. The judgment and decree dated 06.04.2022 is hereby affirmed.
29 In view of the discussions, as adumbrated above, I hereby pass the following:
:: - FINAL ORDER - ::
A. The regular civil appeal of the defendant/appellant is hereby dismissed.RCA No.76/2022 Page 25 of 26
Pankhi Lal Meena vs. Dr. Laxman Singh Meena B. The Parties shall bear their own respective costs.
30 The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.
31 Decree-sheet in the Appeal be prepared accordingly, in terms of this Judgment.
32 Appeal file be consigned to record room after due compliance.
Announced in the open court on this 19th Day of December, 2022.
(Alok Shukla) ADJ-07 (Central) Tis Hazari Courts, Delhi RCA No.76/2022 Page 26 of 26