2014 PLP 244 (CLC)

ABDUL LATIF KHAN, J.

Through the instant appeal, the appellant has called in question the judgment and decree dated 27-2-2007 passed by the learned Additional District Judge-I, D.I.Khan vide which his suit for recovery of Rs.3,75,000 on the basis of a cheque, was dismissed.

2. Learned counsel for the appellant contended that the suit of the plaintiff-appellant was based upon cheque, duly proved through reliable evidence, given by the respondent from his cheque book under his signature, for a sum of Rs.3,75,000 but trial Court has treated the same as ordinary civil case and reached at a wrong conclusion vide impugned judgment and decree. He argued that trial Court has indulged itself into unnecessary and unwarranted controversies not required under the law, in case filed on the basis of negotiable instrument for recovery of amount mentioned therein. It was argued that there is nothing on record to prove that cheque was not issued by the defendant/respondent or has been disowned by the respondent. It is also not brought in evidence by the respondent that cheque was not signed or not even given by him to the appellant, all these issues not met by the trial Court properly. He argued that respondent has not even asked the Bank authorities for stop payment or cancellation of cheque. He further argued that burden lies on defendant to disprove, as presumption is attached to cheque as negotiable instrument, in view of section 118 of the Negotiable Instruments Act. He contended that leaving aside actual controversy the trial Court has focused upon issues not material and has non-suited the plaintiff on extraneous issues, which makes the judgment nullity in the eye of law.

3. As against that, the learned counsel for the respondent contended that unnecessary parties have been arrayed in the suit. It was contended that issuance of contract not proved nor it is proved that the same was subleted. He contended that the respondent-defendant Mustafa, was charged in a criminal case and arrested on 20-7-2003 and acquitted from the charge on 29-6-2005, so, the issuance of cheque is doubtful. He further contended that the alleged contract was given in Bannu whereas the gates were allegedly prepared at D.I.Khan which does not stand to reason. He argued that Pasham Khan, respondent, alleged contractor, had admitted in cross-examination that he had friendly relations with the plaintiff and the suit has been collusively filed against the respondent.

4. I have given my anxious consideration to the arguments of learned counsel for the parties and perused the record with their valuable assistance.

5. Perusal of the record reveals that plaintiff filed a suit before the learned District Judge under Order XXXVII C.P.C. for recovery of Rs.3,75,000 on the basis of cheque No.28787484 drawn on United Bank Limited, Paredi Gate Branch, Bannu, issued by respondent No.1, Mustafa, from his account maintained in the said bank which was presented to the bank and was bounced due to insufficient balance in the account. The background of the issuance of cheque was given in the plaint to the effect that the plaintiff is running a small steel industry who had prepared gates on the order of the defendant for a work, contract of which was initially with respondent No.4, who had subleted the same to respondents Nos.1 to

3. As the gates were prepared on the orders of respondents Nos.1 to 3, real brothers, and respondent No.1 had issued a cheque for the remaining amount of Rs.3,75,000 and in fact a total cost of gates was Rs.9,19,762 which was partly paid and cheque was issued for the amount outstanding against the respondents Nos.1 to

3. Application for leave to defend was moved by the defendant wherein he took the plea that he was in judicial Lockup during that period and has not issued the cheque, however, leave was granted and filed the written statement, raising many factual and legal objections which culminated into divergent issues.

6. The plaintiff has produced evidence about the existence of contract and necessary documents were placed on file. P.W.-2, officer of UBL, was produced, who has placed on file the statement of account maintained by Mustafa as Exh.P.W.2/1 and has also brought on record the photocopies of the cheque and objection memo vide which the cheque was dishonoured as Exh.P.W.2/2 and Exh.P.W.2/3. He stated that the cheque was dishonoured and referred to drawer. He was subjected to taxing and searching cross-examination but nothing favourable to the defendant has been brought on record. He was mainly cross-examined on the point that the cheque was drawn on UBL, Bannu and he was examined from the branch of D.I. Khan. The witnesses have cleared the situation that he was deputed for evidence from circular road branch of UBL at D.I. Khan and UBL, Bannu comes within the area of the Manager, UBL, D.I. Khan and is competent to depose. Pasham Khan, the original contractor, was produced as P.W.-3, who supported the version of the plaintiff. Syed Zia-ul-Hassan (P.W.-5) also supported the version of the plaintiff that he had prepared the gates on the order of defendant. Tabassum Ali plaintiff (P.W.-4) reiterated the stance taken by him in the plaint. The solitary statement of Mustafa was recorded as D.W.-1 who has simply denied the issuance of cheque on the ground that he was arrested in a murder case.

7. From the perusal of evidence, it transpires that the plaintiff has successfully proved that the cheque was issued by Mustafa in account which is being maintained in UBL Branch, Bannu, statement of account of which is Exh.P.W.2/1. It is also proved through statement of P.W.-2 that the cheque issued was presented and bounced due to insufficient amount and was referred to drawer by the bank and as such the simple claim of the plaintiff that the cheque was issued by the respondent No.1 has been disnonoured and is entitled for the recovery of the amount mentioned in the cheque.

8. Under section 118 of the Negotiable Instruments Act, presumption is attached to negotiable instrument and the burden lies upon the defendant to prove contrary. The plaintiff has sufficiently proved the issuance of cheque. The cheque is admittedly issued from the cheque book of the defendant No.1 from the account which he has maintained with the UBL Branch, Bannu and it is also clear that the said account has not sufficient amount to honour the cheque and as such was dishonoured on account of insufficient funds. 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 plaintiff, the signature of which has not been denied by the defendant. No evidence has been produced by the defendant that he has not issued the 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 seems to have taken the plea just to get rid of the payment outstanding against him. In peculiar circumstances of the case, the other evidence regarding the existence of contract and preparation of gates by the plaintiff also stands proved that for this very reason the cheque was issued by the defendant in favour of the plaintiff that he had made gates for the defendant, the total amount of which was Rs.9,19,762, out of which outstanding was Rs.3,75,000 for which the cheque was issued. Even that score of the evidence has not been rebutted but the defendant has relied upon the sole statement, despite the burden heavily lies upon him, as in case of negotiable instrument, it is the defendant who is duty bound to prove contrary, because presumption is attached to the negotiable instrument, but even then the plaintiff has successfully proved and there is nothing in rebuttal on behalf of the defendant and as such the findings of trial Court are alien to law. Unnecessary and unwarranted issues have been framed and simple case of negotiable instrument has been intermingled with those issues which were not required to be framed. In fact the plaintiff has given the document and the issuance of cheque which was culminated in the issues by the trial Court and focused on those issues instead of dilating upon the simple issue of issuance of cheque, negotiable instrument, the burden of proof of which heavily lies on defendant to contrary prove, which is lacking in the instant case and as such the case of the plaintiff stands proved. The learned trial Court has erred in appraising the evidence in its true perspective and committed wrong in dismissing the suit of appellant/plaintiff.

9. For the reasons mentioned above, this appeal is accepted, the impugned judgment and decree of the trial Court is set aside and suit of the plaintiff-appellant for recovery of Rs.3,75,000 is decreed in his favour. No order as to costs. AG/657/P Appeal accepted.