Meenakshi vs Sri. Nagaraju H K
2023 Latest Caselaw 6635 Kant

                                                  -1-
                                                         NC: 2023:KHC:33946
                                                        RSA No. 839 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 20TH DAY OF SEPTEMBER, 2023

                                             BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO.839 OF 2018 (MON)


                   BETWEEN:

                   1.    MEENAKSHI
                         W/O SRINIVASA
                         AGED ABOUT 51 YEARS
                         R/AT D.NO.73,
                         TAVARAKATTE VILLAGE,
                         CHAMUNDI HILL ROAD,
                         MYSURU - 570035
                                                               ...APPELLANT
                             (BY SRI SANATH KUMARA K.M., ADVOCATE)
                   AND:

                   1.    SRI NAGARAJU H.K.
                         S/O KRISHNAMURTHY
Digitally signed
                         AGED MAJOR
by SHARANYA T            P.C. NO 287, COMMANDANT
Location: HIGH           5TH FORCE (PADE 1/2) KSRP,
COURT OF
KARNATAKA                LALAITHAMAHAL ROAD,
                         MYSURU - 570079

                   2.    P.N. NAGAVEENA
                         W/O H.K.NAGARAJU
                         AGED ABOUT 47 YEARS
                         R/O P.C.NO.287, NO.11,
                         HEMAVATHI BLOCK - 2,
                         JOCKEY QUARTERS,
                         MYSURU - 570079
                                                            ...RESPONDENTS

                          (BY SRI S.VENUGOPALA, ADVOCATE FOR R1 & R2)
                                 -2-
                                             NC: 2023:KHC:33946
                                            RSA No. 839 of 2018




     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 23.09.2017
PASSED IN R.A.NO.368/2014 (OLD R.A.NO.56/2013) ON THE
FILE OF THE I ADDITIONAL DISTRICT JUDGE, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 05.12.2012 PASSED IN O.S.NO.404/2012
ON THE FILE OF THE II ADDITIONAL I CIVIL JUDGE AND JMFC,
MYSORE.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This matter is listed for admission.

Heard the appellant's counsel and also the counsel

appearing for the respondents

2. This appeal is filed against the concurrent judgment

of disbelieving the case of the plaintiff for having lent an

amount of Rs.2,00,000/- to the defendants and Trial Court

comes to the conclusion that nothing is stated in the plaint

regarding on what date the loan was advanced and also taken

note of notice only issued against defendant No.1 and not

against defendant No.2 and Cheque is issued jointly by

defendants No.1 and 2 and apart from that taken note that

when the amount was lent, nothing is stated with regard to the

interest is concerned and also plaintiff has not produced any

documentary evidence in receipt of money except making use

NC: 2023:KHC:33946 RSA No. 839 of 2018

of the Cheque for filing the suit and hence, dismissed the suit.

Being aggrieved by the judgment and decree of dismissal of the

suit, an appeal is filed in R.A.No.368/2014 and the Appellate

Court also in detail discussed in paragraph No.19 with regard to

the issuance of Cheque and nothing is pleaded in the plaint, the

date of transaction and also nothing is placed with regard to

charging of interest, no pleading or evidence as per the date of

lending the amount of Rs.2,00,000/- to the defendants and

confirmed the judgment of the Trial Court. Being aggrieved by

the concurrent findings present appeal is filed.

3. The counsel appearing for the appellant would

vehemently contend that both the Courts have committed an

error in dismissing the suit and both the Courts erred in not

noticing and considering the well established law with regard to

the presumption under Sections 138 and 118 of Negotiable

Instruments Act and not drawn the presumption when the

Cheque was issued and the same is admitted and also counsel

would submits that in Rangappa's case, the Apex Court held

that when the notice was issued and no reply was given and

the Court ought to have drawn the presumption and hence, this

Court has to frame the substantive question of law that both

NC: 2023:KHC:33946 RSA No. 839 of 2018

the Courts have not drawn the presumption with regard to the

legally recoverable debt and hence admit and frame

substantive question of law.

4. Per contra, the learned counsel for the respondents

would vehemently contend that the plaint is very silent on what

date transaction was taken place and only in the cross

examination of PW1 an improvement was made that on the

date of transaction only he had given post dated Cheque and

counsel also brought to notice of the Court in the cause of

action in the suit is mentioned as, the issuance of post dated

Cheque in the month of January 2012 and in the oral evidence

it is contended that loan transaction was in the month of

August and Cheque was given on the very same day antedated

for the month of October, 2011, but very cause of action is

contradictory to the oral evidence and these are all the aspects

has been considered by the Trial Court as well as the First

Appellate Court and nothing is also with regard to the charging

of interest when the loan was lent and no document is

produced for having transaction between them and these are

the aspects has been considered by both the Trial Court as well

as the First Appellate Court.

NC: 2023:KHC:33946 RSA No. 839 of 2018

5. Having heard the appellant's counsel and also the

counsel appearing for the respondents and also considering the

material on record, suit is filed for recovery of money based on

the Cheque. It is the contention of the appellant's counsel that

this Court ought to have drawn the presumption and no doubt

Court can draw the presumption and when the same is rebutted

in the cross examination of PW1, PW1 claims that loan

transaction was taken place in the month of August and

antedated Cheque was given, but cause of action is contrary to

the very evidence of PW1 and no other document is placed with

regard to the transaction between them and no doubt with

regard to the source of income also answers are elicited from

the mouth of PW1 and no doubt Court can draw the

presumption, but the presumption is rebuttable presumption

and the same is rebutted in the cross examination of PW1.

6. No doubt the defendants have admitted the

issuance of Cheque, but defendants took the defence of the chit

transaction between them and no material is placed by the

respondents in order to prove suit transaction, but the plaintiff

has to prove the very transaction and very averments made in

NC: 2023:KHC:33946 RSA No. 839 of 2018

the plaint and cause of action mentioned in the plaint is

contrary to the oral evidence and nothing is pleaded in the

plaint the date of transaction except issuance of Cheque and no

substantial document is also placed with regard to the

transaction between them.

7. When such being the case, when the concurrent

finding is given, unless perversity is found in the judgment of

the Trial Court as well as the First Appellate Court on re-

appreciation of material on record, I do not find any error

committed by the Trial Court as well as the First Appellate

Court and hence, no ground is made out to admit and frame

any substantive question of law.

8. In view of the discussions made above, I pass the

following:

ORDER

Second appeal is dismissed.

Sd/-

JUDGE

AP List No.:1 Sl.No.:52