2022 C L D 332
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
ASAD JAVED----Appellant
Versus
AHMED SHAH ----Respondent
R.F.A. No.14 of 2018, decided on 28th September, 2021.
(a) Negotiable Instruments Act (XXVI of 1881) ---
----S. 118--- Civil Procedure Code (V of 1908). O. XXXVII, R. 2---Cheque dishonoured---
Plaintiff filed suit for recovery of amount of Rs.20,80,820/ - allegedly paid to Defendant for
starting business ---Plaintiff contended that defendant issued to hi m a cross cheque which was
dishonoured for insufficient balance ---Defendant contended that the said cheque was stolen
by the brother of the plaintiff ---Trial Court decreed the plaintiff's suit ---Validity ---Plaintiff's
witness deposed before Trial Court tha t the plaintiff was his relative; that respondent and
appellant were present in the office of plaintiff; that defendant obtained a loan from plaintiff
amounting to Rs.20,80,820---Appellant stated that said cheque was actually issued to the brother of the P laintiff, and he, in a concealing manner, took the cheque; and that he had
given a loan of Rs.3000 to the brother of the plaintiff ---Such stand of the appellant/defendant
was contradictory to his very stance ---One could not steal a thing that did not exist ---To
support the claim of stealing/theft it was always necessary to establish the existence of an allegedly stolen thing, else the claim of theft should not stand even if it was admitted by an alleged thief ---Such assertion did not stand to reason as to h ow the cheque, without the
consent of its maker, was in possession of the respondent ---No cogent evidence had been
produced by the appellant that he had not issued a cheque nor signed--- Record did not show
that the cheque was torn out of his cheque book and it did not pertain to the account maintained by him in the Bank--- Mere denial that he had not issued the cheque would not be
sufficient ---In case of negotiable instrument, it was the defendant who was duty -bound to
prove contrary, because the presumption was attached to the negotiable instrument ---Story
cooked up by the plaintiff had not been supported by any cogent evidence ---Plaintiff had
failed to rebut the statutory presumption raised under S. 118 of the Negotiable Instruments Act, 1881---Appeal was d ismissed accordingly.
(b) Negotiable Instruments Act (XXVI of 1881)---
----S. 118--- Cheque ---Execution of ---Presumption ---Scope ---Cheque, in law, had been given
the status of negotiable instrument, which, however, could not be engineered/fabricated as
other document(s), declared/qualified as 'negotiable instrument' ---Proper execution would
normally require only two parties i.e. taking out the cheques from the cheque -book, which
was believed to be in the safe hands of the account holder, and signing/execution thereof ---
No other person could perform such part except by stealing, defrauding, or finding a lost one,
which claims should always be upon the person who otherwise was expected to keep cheque in safe hands.
(c) Negotiable Instruments Act (XXVI of 1881)---
----S. 118--- Cheque, execution of ---Burden of proof ---Presumption, rebuttables, nature of ---
Scope ---Initial presumption is that a negotiable instrument/cheque is made, drawn, accepted
or endorsed for consideration---Although such presumption is rebutta ble, the onus is on the
person denying consideration to allege and prove the same ---Where execution of negotiable
instrument is admitted, the burden of proof of non- payment of consideration will lie on the
executant.
Mrs. Zarghoon Barreach for Appellant.
Khurram Javed Malik for Respondent.
Date of hearing: 20th September, 2021.
JUDGMENT
ROZI KHAN BARRECH, J .----Through this Regular First Appeal, the
appellant/defendant (hereinafter called as "appellant") has impugned the judgment and decree
dated 07.12.2017 passed by the learned Additional District Judge -I, Quetta, whereby the suit
filed against the appellant by the respondent/plaintiff (hereinafter called as "respondent")
under Order XXXVII, Rule 2, C.P.C. for recovery of Rs.20,80,820/ - (Rupees Tw enty Lacs
Eighty Thousand Eight Hundred and Twenty Only) on the basis of cheque bearing No.1003064545 dated 20.08.2014 was decreed.
2. The facts, as enumerated in the appeal, are that the respondent filed a suit under Order
XXXVII Rule 2, C.P.C., for recovery of Rs.20,80,820/ - (Rupees Twenty Lacs Eighty
Thousand Eight Hundred and Twenty Only) against the appellant before the learned District Judge, Quetta, which was assigned to the learned Additional Sessions Judge -I, Quetta, on
07.09.2015 ("the trial court ") for disposal according to law. The case of the respondent is that
he runs the business of veterinary medicines in Quetta city. In the month of June 2014 one of his relatives namely Asad Javed, (defendant) came to him and requested to pay some money for his business on credit, and the same would be returned in the month of August 2014.
Being the relative, the respondent agreed and paid the sum of Rs.20,80,820/ - (Rupees
Twenty Lacs Eighty Thousand Eight Hundred and Twenty Only) and in return, the defendant
paid him a cross cheque No.CD6043605 dated 20.08.2014 under account No.1003064545. The said cheque was presented on 21.08.2014 by the respondent in his account in the Bank Islami Pakistan Jinnah Road, Quetta, for encashment which was dishonored with the m emo
of insufficient balance.
3. After the admission of the suit and issuing summons to the appellant and subsequently
service upon him, the appellant contested the suit by seeking leave of the court to defend the
suit and then filing his written statement taking a plea that the suit filed by the respondent was not maintainable as no cause of action arose to him, and the trial court had got no jurisdiction. The appellant in defending had contended that no loan was obtained from the respondent nor any amount of the respondent was due against the appellant. The said cheque
was stolen by the brother of the respondent/plaintiff. The learned trial court, from the
pleading of the parties, settled down the following issues for determination on 07.12.2017.
1. Whether the suit in hand does not come within the preview of Order XXXVII, Rule 2,
C.P.C.?
2. Whether plaintiff is entitled for recovery of Rs.20,80.820/ - from the defendant?
3. Whether plaintiff is entitled for relief claimed for?
4. Relief?
4. Thereafter, the p arties were directed to produce evidence which was adduced
accordingly. After recording oral as well as documentary evidence of the parties, the learned
trial court proceeded to decree the suit of the respondent vide judgment and decree dated 07.12.2017. H ence, this Regular First Appeal.
5. We have heard the arguments and gone through the evidence, made available on
record before us, with the able assistance of parties' counsel
6. After perusal of the record and hearing the arguments, the point for consideration
before this" court is whether the cheque in dispute was validly given to The respondent for its encashment and the respondent was entitled for the decree as prayed for.
7. Before going into details, we would add that a 'cheque' is normally ex pected to remain
in the safe hands of the 'account holder' as the result of the relationship between the account holder and the bank; it (cheque) is issued by the bank directly to the 'account holder' with a clear understanding that whenever a cheque, duly signed, shall normally be honored by the
bank if amount, so mentioned in the cheque, is sufficient for such encashment. This (cheque), in law, has been given the status of 'negotiable instrument', which however, cannot be engineered or fabricated as other document(s), declared or qualified as 'negotiable
instrument'. Proper execution normally requires only two parties i.e., taking out the cheques from the cheque -book, which is believed to be in the safe hands of the account holder, and
signing/execution thereof. The first part is exceptional, which no other person can perform except by, stealing; defrauding, or finding a lost one, which claims shall always upon the person who otherwise is expected to keep it (cheque) in safe hands.
8. As per the contents of the plaint, the respondent took a stance that the appellant issued
a disputed cheque against getting a loan which was presented for encashment before the concerned branch, but the same was dishonored. To prove his stance, the respondent appeared in the wi tness box before the trial court and narrated the same stance contemplated
in the plaint. PW -1 Hafeez- ur-Rehman, CSM, who is representative of Bank Al -Falah, Model
Town Branch, Quetta, deposed before the trial court that on 21.08.2014, a cheque
No.6043605 was deposited in his branch due to insufficient balance the said cheque was
returned. PW -2 Faisal Zaheer who deposed before the trial court that the plaintiff/respondent
is his wife's sister husband . He, the plaintiff (Ahmed Shah) and defendant (Asad
Javed) were presented in the office of Ahmed Shah in the month of Ramadan in the year
2014. On the said date, the defendant obtained a loan from Ahmed Shah amounting to Rs.20,80,820/ - and the defendant was agreed to return the amount on 20.08.2014. PW -3
Muham mad Jaffar, who is representative of Judicial Magistrate -I, Quetta, produced copy of
the cheque before the trial court as (Ex.P/3- A).
9. The appellant has taken a plea that he never issued the cheques, and the respondent is
not entitled to retain him. The appellant further stated that this cheque was actually issued by him to the brother of the respondent, and in a concealing manner, the respondent, while sitting there, took the cheque. He has further taken the stance that eventually, he given a loan
to the brother of the respondent of Rs.3000/ - (Rupees Three Thousand Only).
10. Patently, such stand of the appellant/defendant is contradictory to the very stance,
taken by himself, i.e. given a loan of Rs.3000/ - (Rupees Three Thousand Only) to the brother
of the respondent and exploitation thereof by respondent, i.e. stealing of a cheque by the
respondent. We are of the humble view that one cannot steal a thing that does not exist. In
other words, to support a claim of stealing/theft it is always necessary to e stablish the
existence of an allegedly stolen thing else, the claim of theft shall not stand even if it is admitted by an alleged thief. It is not possible and does not stand to reason that how the cheque, without the consent of its maker, was in possession of the respondent. No cogent evidence has been produced by the appellant that he is not issued a cheque nor signed it. It is
not on the record that the cheque is not torn out of his cheque book, and it does not pertain to the account maintained by him in the bank. So, mere denial that he had not issued the cheque
would not be sufficient and he seems to have taken the plea just to get rid of the payment outstanding against him. The burden heavily lies upon the appellant, as in case of negotiable instrument, it is the defendant who is duty- bound to prove contrary, because the presumption
is attached to the negotiable instrument, but even then the respondent has successfully proved, and there is nothing in rebuttal on behalf of the appellant. The appellant al leged that
he issued a cheque of Rs.3000/ - (Rupees Three Thousand Only) to the brother of the
respondent as a loan, however, no effort was made by the appellant for his (brother of respondent) production in the court. The story cooked up by the appellant has not been supported with any cogent evidence. For the facility of reference, section 118 of the Negotiable Instruments Act, 1881 ("the Act") is reproduced as under: -
118. Presumptions as to negotiable instruments Until the contrary is proved, the follow ing presumption shall be made: -
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for
consideration;
(b) as to date that every negotiable instrument bearing a date was made or drawn on
such date;
(c) as to time of acceptance that every accepted bill of exchange was accepted within
a reasonable time after its date and before its maturity;
(d) as to time of transfer that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of endorsements -that the endorsements appearing upon a negotiable
instrument were made in the order in w hich they appear thereon;
(f) as to stamps -that a lost promissory note, bill of exchange or cheque was duly
stamped;
(g) that holder is a holder in due course -that the holder of a negotiable instrument is a
holder in due course; provided that, where the instrument has been contained from its
lawful owner, or from any person in lawful custody thereof, by means of an offence
or fraud, or has been obtained from the maker or acceptor thereof by means of an
offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him".
11. From plain reading of section 118 of the Act, it depicts that there is an initial
presumption that a negotiable instrument/cheque is made, drawn, accepted or endorsed for
consideration. Although the presumption is rebuttable, the onus is on the person denying
consideration to allege and prove the same. Therefore, under section 118 of the Act, where
the execution of the negotiable instrument was admitted, the burden of proof of non- payment
of consideration would lie on the executant, which is lacking in this case. The appellant failed to rebut the statutory presumption raised under section 118 of the Act in that he did not
lead evidence in disproof of the assertions made in the plaint, and proved by the respondent by adducing evidence.
In view of the above discussion, we are of the considered opinion that the respondent
established his claim against the present appellant through the production of convincing and cogent evidence , whereas the appellant miserably failed to controvert the respondent and as
such, the learned trial court has rightly decreed the suit against the appellant and impugned judgment being speaking one is confidence -inspiring. Consequently, the appeal, in hand
being devoid of its merits, is hereby dismissed with no order as to costs.
ZH/175/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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