Madras High Court
V. Thangaraj vs Sankaran Financiers Rep. By Its ... on 21 April, 2007
Equivalent citations: AIR2007MAD284A
Author: S.R. Singharavelu
Bench: S.R. Singharavelu
JUDGMENT S.R. Singharavelu, J.
1. This appeal arises against the judgment dated 11.08.1993 by the learned Subordinate Judge, Vellore, in O.S.No. 483 of 1988, in decreeing the suit. Defendant is the appellant.
2. The suit is based on a pronote, which is marked as Ex.A-4 purported to have been executed by defendant on 16.08.1986 agreeing to repay the said amount on demand to plaintiff or as directed by him with interest at the rate of 24% per annum. The pronote also shows that there was a cash consideration of Rs. 22,000/- thereunder, which was attested by Gajaraj, who was examined as P.W.1 and scribed by one Pichandi.
3. The appellant/defendant pointed out that neither the scribe nor the plaintiff was examined. But the plaintiff has chosen to examine his father as P.W.1, who claims to have known the facts of the case including the suit borrowal. The defendant's contention is that under different circumstances he has signed in a blank pronote form and given it to plaintiff. When defendant thus admitted his signature found in Ex.A-4 pronote and stated that it was executed in a blank form then there arises a legal presumption under Section 118 of Negotiable Instruments Act that the instrument was prima facie supported for consideration. This presumption is rebuttable and the defendant, who was examined as D.W.1, would say that when there was transaction with Sankaran Financiers, plaintiff's finance company, he happened to give a blank signed pronote form; besides there were other transactions including mortgage to one Jothi Chettiar.
4. Simply because defendant was able to narrate the events under which he has borrowed several amounts that will not be conclusive proof that in all times he has given a blank pronote form as a security. Even according to him, all the erstwhile transactions have been discharged and in that event, had he given a blank suit pronote signed by him as only a security, he could have issued a notice and asked for return of the same. This is so because even, according to the defendant, all his erstwhile transactions have been discharged. Such failure on the part of the defendant in not asking for his blank signed pronote form, which, according to him, as delivered as a security for the erstwhile transactions, would go to falsify statement as if he has given Ex.A-4 only as security for other loans. Thus, the defendant has not successfully rebutted the presumption and therefore, it cannot be said that the plaintiff has filled up the consideration in the blank pronote form, which has been delivered to him after signing of defendant. It is also not the case of defendant that instead of Rs. 22,000/-he has received only a lesser sum and therefore, we have to only come to the conclusion that Ex.A-4 pronote was correctly executed.
5. Mr. Prabhakaran, learned Counsel appearing for the appellant/defendant submitted that S. Ameer v. Vivek Enterprises 2005 1 L.W. 187, wherein it was observed that as per Article 13(2) of Stamp Act if there is under-stamping of the instrument then it may not be admissible in evidence as per Section 35 of the said Act. Under Section 35 of the Stamp Act, an instrument shall not be admitted in evidence unless such instrument is duly executed.
6. Reliance was also placed on R. Ravindran v. M. Rajamanickam 2006 3 L.W. 928. wherein also it was held that in view of the proviso to Section 35 of the Stamp Act, the document cannot be validated by payment of penalty. Therefore, the learned Counsel submitted that the pronote Ex.A-4 is inadmissible in evidence and cannot be acted upon.
7. The learned Counsel for the respondent/plaintiff relied on Shyamal Kumar Roy v. Sushil Kumar Agarwal 2006(ii) Scale 159, wherein it was held that the appellant having consented to the document being marked as an exhibit has lost his right to re-open the question. This is the judgment of Honourable Apex Court, which is binding. In this case also, the appellant/defendant had admitted that the suit pronote has been marked as Ex.A-4. He has waived his right to question the same even though such right was originally available to him.
8. Learned Counsel for the appellant/defendant submitted that the pronote reads as if the consideration was by cash; whereas P.W.1 deposed that such consideration was passed on 16.08.1986 through cheque, copy thereof is Ex.A-6. Ex.A-7 is the signature of the defendant on the back of the said cheque and it is not denied as if defendant never encashed the said cheque, which is also for Rs. 22,000/-. The mentioning of cash under Ex.A-4 pronote is right in the sense what was ultimately received by appellant/defendant was cashed after encashing the cheque. The defendant cannot deny the encashment because on the back of the cheque he has signed, which presupposes the presenting of the cheque in the bank and encashing it. The moment when it was presented before the bank, it is only for encashment and not for any other purpose unless the appellant/defendant pleaded so. I find positive passing of consideration. There is no merits in the appeal and is liable to be dismissed.
For the reasons mentioned above, the appeal is dismissed. No costs.