2017 PLP 1593 (CLD)

MUDASSIR KHALID ABBASI, J.

This Regular First Appeal is directed against judgment and decree dated 01.10.2009 passed by learned Additional District Judge, Rajanpur.

2. Precisely, the facts of the case are that appellant/defendant obtained a loan of Rs.13,60,000/- from respondent/plaintiff in presence of witnesses. Petitioner issued a Cheque No.46737228 dated 09.01.2009 in favour of respondent No.1/plaintiff to be drawn from UBL Fazilpur Branch for a consideration of Rs.13,60,000/-. The cheque was not honored on presentation and appellant/defendant failed to repay the loan obtained by him. Appellant/defendant contested the suit by filing written statement wherein he denied the amount of Rs.13,60,000/- as loan while acknowledging the transaction to the tune of Rs.200,000/-. The appellant further averted that one Zafar Hussain took responsibility to pay amount of Rs.200,000/-. Respondent/plaintiff contacted the petitioner on failure of Zulfiqar Hussain's to honour the commitment. Thereafter, on intervention of one Mian Fareed appellant/defendant issued three blank cheques with his signatures and left in the custody of his son, Jamil Akhtar which were collected by the plaintiff/respondent. However, appellant paid an amount of Rs.150,000/- to plaintiff/respondent in presence of witnesses. Therefore, petitioner/defendant is liable only to pay Rs.50,000/-.

3. Trial Court out of the contradictory claim framed the following issues:- "

1. Whether the plaintiff has no cause of action to bring his suit? OPD

2. Whether the plaintiff is estopped by his words and conduct to bright the suit? OPD

3. Whether the suit of the plaintiff is not maintainable in its present form? OPD

4. Whether the plaintiff has filed the suit on the basis of false facts just to tease, harass and blackmail the defendant, if so, whether the defendant is entitled to recover special cost under section 35-A, C.P.C.? If so to what extent? OPD

5. Whether the plaintiff is entitled to recover Rs.13,60,000/- from the defendant on the basis of cheque No.46737228 relating to Khata No.25776-1 dated 09.01.2009 to be drawn on United Bank Limited Fazilpur.

6. Relief."

4. Parties produced oral as well as documentary evidence in order to substantiate their respective claims. Trial Court decreed the suit in favour of plaintiff/respondent for amount of Rs.12,10,000/- vide judgment and decree dated 01.10.2009.

5. Learned counsel for the petitioner contends that impugned judgment and decree is result of misreading and non-reading of evidence. Further contends that learned trial Court has relied on the evidence produced by the respondent by pick and choose and overlooked the admission regarding payment of Rs.150,000/- to respondent. Argued that learned Trial Court while passing the impugned judgment and decree has committed material irregularity and illegality, therefore, same is liable to be set aside. Moreover, in paragraph No.2 of the plaint neither place nor date of receiving the cheque has been mentioned, same is the position in paragraphs Nos.3 and 4 of the plaint.

6. On the other hand, learned counsel for respondent has opposed the contentions raised by counsel for the appellant and argued that learned trial Court has passed the impugned judgment and decree in accordance with law, therefore, no interference is called for. Argued that instant appeal having no merits is liable to be dismissed.

7. I have given my conscious thought to the arguments of learned counsel for the parties and perused the record.

8. Issuance of cheques, signatures and delivery to respondent/plaintiff is admitted. The only dispute is that according to the appellant/defendant an amount of Rs.200,000/- was borrowed from respondent about 1-1/2 years back it was agreed between the parties that same shall be returned to the respondent in the month of August, 2008. One Zafar alias Kaura took responsibility for repayment of the loan to the plaintiff/respondent, who failed to pay the same and upon the interference of one Mian Shahbaz Farid, three cheques of different banks were issued by the appellant/defendant which were handed over to the plaintiff/respondent. Out of these three cheques one was presented and could not be encashed due to closing of account.

9. Critically important aspect involved in this case is that what would be the effect of issuance of a cheque for consideration. It would be advantageous to reproduce section 118 of the Negotiable Instruments Act, 1881 [XXVI of 1881]:- "

118. Presumption as to negotiable instruments.

Until the contrary is proved, the following presumptions 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, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred, for consideration; (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 instrument has been obtained 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."

10. Bare reading of afore-cited provision makes it abundantly clear that holder of negotiable instruments is holder in due course, unless it is established that the same was obtained by means of fraud or some unlawful consideration. The presumption would be that the same was issued against consideration unless rebutted, therefore, onus is upon person denying the consideration to prove the same. Appellant in order to rebut the amount of consideration could have called Mian Shahbaz Farid in witness box to establish that the cheque was not issued for consideration. Therefore, best evidence was withheld, hence, an inference is to be drawn against the appellant. Reliance is placed on "Sughran Bibi v. Mst. Aziz Begum and 4 others" (1996 SCMR 137). Relevant portion of which is reproduced herein below:- "Non-production/withholding of evidence of vital important

Inference

Trial Court and First Appellate Court had rightly drawn inference against respondents on account of non-examination of witness (one of the respondents) who being co-sharer had allegedly executed the disputed document on behalf of other co-sharers, and he could deny execution of such document by stepping in witness box

In absence of such evidence on record, onus of execution of document in question, by one of the co-sharers, was duly discharged and allegation of appellant that she paid specified amount of money on execution of document in question remained unrebutted."

11. Presumption attached to a negotiable Instrument, besides statutory is mandatory as well and any person who wishes to dispel the same, of course, he would be required to furnish proof/cogent evidence to the contrary. Reliance is placed on "Muhammad Boota v. Fiaz Ahmed" (1979 SCMR 465) wherein it has been held that:- "Under section 118 of the Negotiable Instruments Act, it had devolved on the defendant to prove that the promissory note thus executed by him was without consideration". Further reliance is placed on "Haji Karim and another v. Zakir Abdullah" (1973 SCMR 100) relevant portion of which is reproduced herein below:- "Under section 118 of the Negotiable Instruments Act, 1881, there is an initial presumption that a negotiable instrument is made, drawn, accepted or endorsed for consideration. Although this presumption is a rebuttable presumption, yet the onus is on the person denying consideration to allege and prove the same."

12. Term "until the contrary is proved" in section 118 depicts that it shall be the responsibility of the person, who claims that the instrument was executed without consideration, to prove the reasons why it was so executed. In "Mst. Surraya Begum v. S. Ghulam Abbas Shah" (PLD 1974 Notes 38), it has been held that under Section 118(a) of the Act presumption will arise in favour of a payee of a cheque that the cheque was issued for consideration.

13. Respondent/plaintiff has proved his case with trustworthy and confidence inspiring evidence. The issuance of cheque for consideration was established by oral as well as documentary evidence.

14. Learned counsel for the appellant has failed to point out any misreading or non-reading of evidence or any illegality or infirmity in the impugned judgment which otherwise is well reasoned and need no interference. In view of what has been discussed above, I am not persuaded to interfere in the impugned judgment and decree dated 01.10.2009. This appeal being devoid of any merits is dismissed. MH/M-106/L Appeal dismissed.