Punjab And Haryana High Court · 2010

The plaintiff is in second appeal against the judgment and decree of the Courts below by which her suit for recovery on the basis of pronote and receipt, has been dismissed. The case set up by the plaintiff is that defendant had borrowed `3,75,000 on 15.12.2002 in cash on interest @ 2% per month after executing a pronote and receipt in favour of the plaintiff. Since the amount was not returned, therefore, the suit was filed. In defence, it was alleged that the witnesses to the pronote and receipt are two real brothers running the Commission Agent shop at Bareta, namely, M/s Roop Chand Piare Lal which is sole proprietorship of Piare Lal and M/s Piare Lal Raj Kumar which is sole proprietorship of Roop Chand. Defendant was selling his agricultural produce to both the firms since 2003 and was demanding settlement of accounts but they did not agree to it. Consequently, defendant had filed two suits against the aforesaid firms in the Court at Mansa for rendition of accounts. It was alleged that the RSA No.3602 of 2009 (O&M) -2- ***** plaintiff, taking advantage of the illiteracy of the defendant, had obtained his thumb impression on the blank pronote and receipt. The plaintiff filed replication and on the basis of the pleadings of the parties, issues were framed. Plaintiff had examined herself as PW1 and Sham Lal, attesting witnesses of the pronote and receipt as PW2 and also produced on record pronote as Ex.P1 and receipt as Ex.P2. Defendant examined himself as DW1, Jaswant Singh, Auction Recorder as DW2 and proved on record Ex.DW2/A photocopy of form A, Ex.DW2/B attested copy of register of license, Ex.DW2/1 photocopy of form J, Ex.DW2/C attested copy of relevant entry of bid register dated 22.04.2002, Ex.DW2/D attested copy of bid register dated 25.04.2002, Ex.DW2/E attested copy of form G, Ex.DW2/2 copy of form J, Ex.DW2/F attested copy of bid register dated

04.01.2003, Ex.XY and Ex.DX attested copy of pronote and receipt dated

10.06.2001, Ex.D1 ration card, Ex.PW1/D2 photocopy of identity card issued by Election Commissioner of India and Mark-D voter list for the year 2002 of Nagar Cuncil, Bareta. The entire case of the plaintiff is based upon the thumb impression of the defendant on the pronote and receipt, whereas the finding recorded by the Courts below is that the plaintiff is a housewife who had no source of income. She had stated that she used to generate income from stitching clothes, rent and from sale of milk. The Courts below had found that she was unable to disclose the property from where she was getting rent and also evidence to the effect that how was she earning money by stitching clothes and selling milk. As a matter of fact, the Courts below have found that there was no source of income of the plaintiff to advance the money to the defendant and it appears to be improbable that a housewife would advance the money to a stranger just on the basis of pronote and receipt. The relevant findings in this regard are as under:- “14. From the perusal of the entire evidence produced on record by both the parties in the lower court, it stands fully proved on record RSA No.3602 of 2009 (O&M) -3- ***** that appellant-plaintiff Kiran Bala is a house wife. She is not doing any business and as such has no source of income. However, she stated that she used to receive money from stitching of clothes, rent and from the sale of milk, but she could not produce any oral or documentary evidence to prove how many buildings/property she has given on rent, to whom, and what is the rate of rent, nor any rent receipt has been produced by her to prove that how much income she used to get from land, nor any person has been examined by the plaintiff to prove that she is doing the work of stitching of clothes or sale of milk etc. Further she has stated that she never gave any amount to any other person except the defendant- respondent as loan. Whereas the respondent has produced and proved a copy of pronote Ex.XY and receipt Ex.DX vide which the plaintiff-appellant has given loan of `4,00,000 on interest to one Pargat Singh son of Darbara Singh of village Dialpura on 10.06.2001. Appellant has also deposed in the Court that she never executed any other pronote or receipt, whereas PW-2 Sham Lal, who is non-else but brother-in-law of the plaintiff, has admitted that he has also signed some other pronotes/receipts executed by Kiran Bala appellant in favour of different loaners. PW-2 Sham Lal has totally deposed against the facts. He has stated that his brother Piare Lal is doing work of sale of paints, etc. and not the Commission Agent RSA No.3602 of 2009 (O&M) -4- ***** business, whereas when he was shown record to this effect, he, in the next breath, has admitted that his brother Piare Lal is doing Commission Agent business only. PW-1 Kiran Bala, appellant, has deposed that she is not doing the business of lending money, whereas PW-2 Sham Lal, her own brother-in-law, has stated that Kiran Bala is doing the work of lending money and she has given amount on interest to different persons. PW-1 Kiran Bala has deposed that her husband Sukhdev Chand is also called as Jagdish Chand, whereas PW-2 real brother of the husband of plaintiff has stated that his brother is only called as Sukhdev Chand and he has no other name as Jagdish Chand, whereas in almost all the documents i.e. voter list mark-D produced by the defendant and voter identity card of plaintiff-appellant Kiran Bala PW-1/D-2, name of the husband of appellant Kiran Bala is written as Jagdish Rai. All this shows that the plaintiff has also concealed the name of her husband. The appellant also could not produce any evidence from where she has taken this amount of `3,75,000 for lending to defendant-respondent Gora Singh and `4,00,000 for lending to one Pargat Singh vide pronote and receipt Ex.XY and Ex.DX dated 10.06.2001, respectively. So the statements of the witnesses examined by the plaintiff-appellant are not credible and the same are unreliable. It has been held by the Hon'ble Supreme Court of India in case Ram RSA No.3602 of 2009 (O&M) -5- ***** Phal Kundu Vs. Kamal Sharma, 2004(1) Recent Civil Reports 785 (SC), that where there is statement of witness denying the knowledge of hard fact of which he was supposed to have specific knowledge and deposing contrary to the admitted facts on record, cannot be given any credence and has to be declared unreliable.

15. No doubt, as per Section 118 of the Negotiable Instrument Act, there is presumption as to consideration of negotiable instrument, but this presumption is rebutable and in this case, defendant-respondent has fully proved that plaintiff-appellant has no source of income and she could not explain from where she got this huge amount. Further the defence evidence produced by defendant-respondent is probable because defendant used to sell his agricultural produce at the commission agency of Piare Lal Roop Chand, who are none else but brother-in- law and father-in-law of the plaintiff-appellant and they used to get the thumb impression of the defendant on various blank papers. The defendant has also filed suits against said Roop Chand Piare Lal, Commission Agents for rendition of accounts. The learned lower Court has, therefore, rightly held that the plaintiff- appellant has failed to prove on record that the pronote and receipt Ex.P1 and Ex.P2, respectively, are genuine documents, rather the same are the result of forgery and fabrication prepared by the plaintiff in connivance with the attesting witnesses, who are none else but RSA No.3602 of 2009 (O&M) -6- ***** Commission Agents and brothers-in-law of the plaintiff. Resultantly, the appellant-plaintiff is not entitled to recover the suit amount and interest thereon. Resultantly, I affirm the findings of the learned lower Court on issues No.1, 2 and 4. Learned counsel for the appellant has reiterated the arguments raised before the Courts below but this Court cannot re-appreciate the evidence in its jurisdiction under Section 100 of the Code of Civil Procedure, 1908 as learned counsel for the appellant has failed to put forward any substantial question of law nor it emerges from the case. In view thereof, I do not find any merit in the present appeal and as such, the same is hereby dismissed. September 29, 2010. vinod* (RAKESH KUMAR JAIN) JUDGE