Bangalore District Court
N.Shilendra S/O Late S.Narayan vs G.Raghavendra S/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. 9479 / 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:- G.Raghavendra S/o Late Jayagopal
Aged about 40 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. 9479/2015
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.11 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 loan of Rs.11 lakhs, for which the plaintiff conceded and advanced hand loan of Rs.11 lakhs to the defendant on several occasions during the year 2010 and 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 repayment of hand loan amount. Then the defendant requested the plaintiff to grant some more time to repay the loan and issued two cheques dt.28.11.2012 for Rs.10 lakh and 3 O.S. 9479/2015 Rs.01 lakh drawn on ING Vysya Bank Ltd., Malleshwaram Branch, Bengaluru in favour of plaintiff. When the plaintiff presented the said two cheques for encashment on 28.11.2012, the said two cheques returned with endorsement as account closed on 30.11.2012. Then immediately, the plaintiff informed the defendant about the dishonour of cheques, 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 4.12.2012. In response to the said 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.1427/2013 and the same is pending for adjudication. Since the defendant issued those cheques towards legally recoverable debt, the plaintiff is constrained to file this 4 O.S. 9479/2015 suit for recovery of cheque amount with interest. Hence, this suit.
3. After filing of the suit, the suit summons duly served on the defendant, who made appearance through his counsel and filed his written statement as under:-
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 him. Denying the averments of the plaint, it is contended by defendant that he 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 him and now the plaintiff by misusing the said cheques, has filed this suit against the defendant and also filed another suit against 5 O.S. 9479/2015 the mother of the defendant and both the suits are not maintainable. The defendant is regularly attending the Court in CC 1427/2013 and the trial already is concluded, and now the said matter is posted for examination of hand-writing expert.
The plaintiff by misusing the cheques, filed the complaint against the defendant and his mother 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 who has already submitted his report confirming the hand-writing of the plaintiff over the said letter.
The application which was filed by the plaintiff for attachment before judgment is also not maintainable, since the suit property stands in the name of his mother. 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 his mother.
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. 9479/2015
1) Whether the plaintiff proves that the defendant had borrowed loan of Rs.11 lakhs in the year 2010-11?
2) Whether the plaintiff proves that the defendant had issued cheques bearing No.41786 and 41814 dt.28.11.2012 for Rs.10 lakhs and for Rs.01 lakh respectively drawn on ING Vysya Bank Ltd., Malleshwaram Branch, Bangalore, towards discharge of loan by him?
3) Whether the defendant proves that he 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 13. 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. 9479/2015
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 there 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 2009. It is not in dispute that the signatures found on Ex.P.1 belongs to defendant. It is not in 8 O.S. 9479/2015 dispute that the complaint filed in CC 1427/2013 against the present 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, now I proceed to appreciate and evaluate the oral and documentary evidence let in by both the parties to answer the points in controversy. Obviously, the burden is on the plaintiff to prove that the defendant having borrowed hand loan of Rs.11 lakhs, issued two cheques dt.28.11.2012 for Rs.11 lakhs towards repayment of loan amount.
11. In this regard, the plaintiff stepped into witness box as PW1 who in his evidence has reiterated the averments of plaint and got marked documents i.e., certified copy of two cheques as per Ex.P.1 and 2, certified copy of bank endorsement as per Ex.P.3 and 4, certified copy of bank challans as per Ex.P.5 and 6, certified copy of notice and reply notice as per Ex.P.7 and 8; certified copy of gift deed, encumbrance certificate, bank 9 O.S. 9479/2015 statement, certified copy of of deposition in CC 1427/2013 as per Ex.P.9 to 13.
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 2007-2010. He is 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 defendant since 2007, who was running wine shop. The defendant owned 10 O.S. 9479/2015 3-4 wine shops. He does not know the income of the defendant. One Lakshmi Raghavendra is the mother of defendant. The defendant and his mother used to avail loan amount from him since 2008. The defendant and his mother used to obtain loan amounts of Rs.50,000/-, 1,00,000/- , 2,00,000/- and 3,00,000/- and used to return the same afterwards. The defendant and his mother obtained loan amount from him on 7 to 8 occasions. He was not charging any interest on the said loan amount. He was not lending the money on interest. He paid loan amount of Rs.11 lakhs to 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 mother of the defendant in cash. He had not obtained any documents from defendant and his mother as security. No talks were held for payment of interest. Nobody was present in the house when he advanced said hand loan to defendant and his mother.
14. He had filed complaint against the defendant in the month of March-April 2013 before Yelahanka Police and requested the police to recover the loan amount from the 11 O.S. 9479/2015 defendant. He had not mentioned the name of mother of the defendant in the said complaint.
15. He states that when he filed complaint against defendant before Yelahanka police, the defendant and his mother had not yet issued the cheques in question in his favour. The police had called the defendant to the Police Station and directed him 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 defendant and he does not know when the said complaint came to be closed by police. He states that till his complaint was closed by the police, the defendant and his mother had not yet issued the cheques in question.
16. One and half months or two months after the closure of the complaint by Yelahanka police, the defendant and his mother voluntarily came to his house and handed over the three cheques in his favour. Since he has produced the original cheques in the complaint filed under Sec.138 of Negotiable Instruments Act, he has produced the certified copies of the 12 O.S. 9479/2015 cheques in this case. He denied the suggestion that the hand- writing found on the letter, belongs to him.
17. In the complaint filed by him in CC 1427/2013 and CC 1493/2013 against the defendant and his mother, 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 his mother in the year 2007-08 and he obtained three signed blank cheques from them. He denied the suggestion that though the defendant and his mother repaid the loan amount, 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 his mother. He denied the suggestion that the defendant and his mother never obtained said loan amount of Rs.11 lakhs and Rs.10 lakhs respectively from him in the month of March 2010. He denied 13 O.S. 9479/2015 the suggestion that by misusing those signed blank cheques, he got filed this false suit for making wrongful gain.
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 to him by his brother. He admits that as per Ex.P.11 bank statement, he had balance of up to Rs.02 lakhs only. 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 cash 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 13, it can be said that though the PW1 states that he had advanced hand loan amount of Rs.11 lakhs to the defendant and Rs.10 lakhs to the mother 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 his mother during that period. 14 O.S. 9479/2015 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 defendant and his mother. 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 15 O.S. 9479/2015 receipt for having paid such amount to defendant and his mother for reasons best known to him. The thing would have been different if the plaintiff were to obtain any promissory note or receipt for having advanced such huge hand loan amount to the defendant and his mother. No prudent man would lend such huge amount of Rs.21 lakhs to the defendant and his mother 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 his mother. So, all these facts would create doubt as to the actual payment of such hand loan to defendant and his mother
22. Furthermore, it is elicited in the cross-examination of PW1 that the complaint was filed against defendant before Yelahanka police in the month of March/April 2013 requesting the police to recover the loan amount from the 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 16 O.S. 9479/2015 and his mother in the year 2013, the cheques in question were not yet issued by the defendant. Similarly, mother of the defendant had also not 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 his mother issued cheques for Rs.11 lakhs and Rs.10 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 cheque in question had been issued by defendant and his mother. If really the defendant and his mother 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 his mother towards repayment of hand loan amount.
17 O.S. 9479/2015
24. Furthermore, PW1 goes to the extent of deposing that only after closure of complaint filed before Yelahanka police, the defendant and his mother voluntarily came to his house and 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 his mother 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 his mother in the year 2010 and 2011. It is for this reason the defendant sets up a specific defence that the 18 O.S. 9479/2015 cheques in question have been misused by the plaintiff for making unlawful gain.
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.11 lakhs to the defendant and Rs.10 lakhs to the mother of the 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.11 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 his mother. 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 his mother as averred in the plaint. Such being the fact, merely because, the 19 O.S. 9479/2015 signatures found on the cheques have been admitted, that does not shift the burden of proof on the defendant and his mother.
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 his mother 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?"20 O.S. 9479/2015
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 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 his mother. 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 :-
21 O.S. 9479/2015
"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."
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.11 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 22 O.S. 9479/2015 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 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 his mother, 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 his mother during the year 23 O.S. 9479/2015 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 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 24 O.S. 9479/2015 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 such huge hand loan amount to the defendant and his mother. 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 his mother.
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 25 O.S. 9479/2015 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, 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 26 O.S. 9479/2015 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 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 27 O.S. 9479/2015 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 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 his signature on the cheques in question, it does not mean that the contents of the cheques are deemed to have been proved. The heavy burden casts upon the plaintiff to prove that the cheques in question were 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 28 O.S. 9479/2015 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.
38. On the other hand, the defendant examined himself as DW1 who in his evidence has spoken to the facts in similar to that of the defense set up by him in the written statement. The sum and substance of his evidence is that he never approached the plaintiff to avail hand loan of amount of Rs.11 lakhs nor issued any cheques towards repayment of said loan amount. It is his evidence that in view of his money transactions with the plaintiff in the year 2008-09, he had given blank signed cheques as security to the plaintiff. Though he 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.11,00,000/- in his name and Rs.10,00,000/- in the name of his mother, filed these 29 O.S. 9479/2015 false suits. It is also his evidence that since the plaintiff denied his hand-writing found in the letter written by him, he 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-used the same and got filed the false suit and hence prayed to dismiss the suit. In his 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 he gave statement before the police as per Ex.P.14. He cannot say the date when he repaid the said loan amount. He denied the suggestion that Ex.D.1 has been created. He did not file complaint against the plaintiff before the police alleging misuse of cheques. He denied the other suggestions.
40. On careful appreciation of evidence of DW1 coupled with contents of Ex.D.1, Ex.D.2 and Ex.P.14, it can be said that his evidence is probable and believable. His evidence is sufficient 30 O.S. 9479/2015 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 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 strengthens the defence set up by the defendant that he 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, though DW1 appears to have given statement before the police as per Ex.P.14, the said statement does not come to the assistance of the plaintiff in any way to prove the loan transaction in question. Because, in Ex.P.14 the defendant stated before the police that he was to repay in all 31 O.S. 9479/2015 Rs.8 lakhs. If this is true, then the question of defendant issuing cheques for Rs.11 lakhs does not arise. Moreover, Ex.P.14 statement is dated 9.10.2012. Whereas Ex.P.1 is dt.28.11.2012. So, this aspect of the case also creates doubt as to actual handing over of hand loan to the defendant by plaintiff.
42. Furthermore, the defendant issued reply notice as per Ex.P.8 denying issuance of cheques of Rs.11 lakhs and cheque of Rs.10 lakhs by himself and his mother. He 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 his mother voluntarily issued the cheques for Rs.11 lakhs and Rs.10 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 facts narrated by DW1 in his evidence, would create 32 O.S. 9479/2015 doubt as to the borrowing of said hand loan by the defendant and his mother from the plaintiff.
43. 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 his mother during the year 2010-11, question of issuance of cheques by the defendant and his mother 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.
44. 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.11 to the defendant and Rs.10 lakhs to the mother 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 his mother issued said cheques towards repayment of hand loan amount does not arise.
33 O.S. 9479/2015
45. 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.11 lakhs in the year 2010 and 2011 and he further failed to prove that the cheques in question have been issued towards discharge of loan liabilty. On the other hand, the defendant has placed ample materials on record to show that he 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.
46. Issue No.4:- Though the defendant took the contention that the suit is barred by limitation, he has not pressed this issue during the course of arguments. As such this issue does not survive for consideration.
47. 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.
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48. 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 G.Raghavendra
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P.1 & 2 Certified copy of cheques
Ex.P.3 & 4 Certified copy of two bank endorsements
Ex.P.5 & 6 Certified copy of two bank chalans
Ex.P.7 Certified copy of legal notice
Ex.P.8 Certified copy of reply notice
Ex.P.9 Certified copy of Gift deed
35 O.S. 9479/2015
Ex.P.10 Encumbrance certificate
Ex.P.11 Bank statement
Ex.P.12 Certified copy of evidence of complainant
in CC 1427/2013
Ex.P.13 Certified copy of evidence of accused
Raghavendra in CC 1427/2013
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