Madras High Court
R.Mariammal (Died) vs Dason Chandraraj on 27 August, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AS(MD)No.22 of 2014
1.R.Mariammal (died)
2.Subbuthai
3.Nallathall
4.Chandra
5.Jesurani
6.Vasantha
7.Sumathi ... Appellants
(Appellants 2 to 7 are brought on record
as L.Rs of the deceased sole appellant
vide Court order dated 01.07.2021 made in
CMP(MD)No.5415 of 2021)
vs.
Dason Chandraraj ... Respondent
PRAYER: Appeal Suit is filed under Section 96 of Civil Procedure Code,
against the judgment and decree of the Principal District Judge,
Tirunelveli dated 11.09.2008 in O.S No.77 of 2004.
https://www.mhc.tn.gov.in/judis/
1/12
For Appellants : Mr.J.Ashok for P.Jeyapaul
For Respondent : Mr.H.Arumugam
JUDGMENT
The plaintiff in the suit is the appellant in this second appeal.
The original appellant had passed away and her legal heirs have come on
record. The suit was for recovering a sum of Rs.7,06,766.66 from the
respondent herein. The case of the plaintiff was that the defendant had
borrowed a sum of Rs.7.00 lakhs from her on 01.07.2002. On
01.10.2002 when the plaintiff demanded repayment, the defendant
issued Ex.A1 cheque bearing No.428507 dated 01.10.2002 favouring the
plaintiff which was drawn in Indian Overseas Bank, Tirunelveli. The
plaintiff presented the said cheque for collection on 05.10.2002. It was
returned “unpaid” with the endorsement “insufficient funds” on
07.10.2002. Thereupon, the plaintiff issued Ex.A2 notice dated
15.10.2002 calling upon the defendant to pay the cheque amount. The
defendant denied the notice averments. Left with no other option, the
plaintiff filed the said suit on 30.10.2002.
2.Originally, the defendant was set exparte. Later it was set
aside. The defendant filed a detailed written statement controverting
the plaint averments. According to the defendant, he is a permanent
resident of Singapore. He was running business in the name and style of
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“M/s.Hebron Travels (P) Ltd”. The said business was closed in the year
1999 and all the business articles were kept in safe custody in the
defendant's farm house at Kozhumadai Village. The defendant is also
having land in the said village. The plaintiff's son-in-law Muppidathi was
appointed to manage the defendant's properties. Muppidathi had stolen
the defendant's articles which included the signed blank cheques. The
defendant totally denied the suit transaction. According to him, it is
utterly false to say that on 01.07.2002, he borrowed a sum of Rs.7.00
lakhs for his family expenses. He also stated that he had given a
criminal complaint against the said Muppidathi on 21.10.2002. The
defendant called for dismissal of the suit. He also filed an additional
written statement contending that based on the defendant's criminal
complaint, Crime No.224 of 2002 on the file of the Munneerpallam Police
Station was registered and the police had recovered all the stolen articles
except the cheque book. Based on the divergent pleadings, the trial
court framed the necessary issues. The plaintiff examined herself as
PW.1 and marked Exs.A1 to A4. The defendant examined himself as
DW.1 and one Thangaras was examined as DW.2. The defendant
marked Exs.B1 to B19. After consideration of the evidence on record,
by judgment and decree dated 11.09.2008, the trial court dismissed the
suit. Challenging the same, this appeal came to be filed.
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3.The point for determination is whether the plaintiff
established that on 01.07.2002 the defendant borrowed a sum of Rs.
7.00 lakhs from her and whether the towards repayment of the said
amount, the suit cheque was issued on 01.10.2002.
4.The learned counsel appearing for the LRs of the appellant
reiterated all the contentions set out in the memorandum of grounds.
His primary contention is that the court below had non-suited the
plaintiff going by the allegations set out in Ex.B4 FIR (Crime No.224 of
2002) registered on the file of the Munneerpallam Police Station at the
instance of the defendant. The case of the defendant was that the suit
cheque was one of the articles stolen by the plaintiff's son-in-law
Muppidathi. He pointed out that the said proceedings had ended in
acquittal. Of course, the judgment of acquittal had not been marked
before this Court. If the respondent's counsel would dispute the said
statement, the appellants are prepared to file an application for
adducing additional evidence under Order 41 Rule 27 of CPC. He also
would state that Ex.B4 was given after receipt of the suit notice issued
by the plaintiff. The learned counsel for the appellant would state that
apart from the suit transaction, there was one other transaction between
the parties. The defendant had purchased a property from the plaintiff
and other members of the family in the year 1996. The court below
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had gone by the complaint said to have been given by the plaintiff vide
Ex.B15. In Ex.B15 the plaintiff had alleged that the defendant had
purchased the property from her in the year 1996 and in order to honor
the same, he had issued the cheque in question. The learned counsel for
the appellants would state that the plaintiff had denied having filed
Ex.B15 complaint and the court below without taking note of the said
denied had non-suited her by coming to the conclusion that in respect of
one cheque, two different versions have been projected. The learned
counsel would state that since the suit has been laid on the strength of
execution of instrument, the presumption under Section 118 of the
Negotiable Instruments Act would kick in. This is more so because the
defendant had admitted the signature found in the suit cheque.
5.The primary defence taken by the defendant was that the suit
cheque was stolen and that is why, Crime No.224 of 2002 was registered
on the file of the Munneerpallam Police Station against the son-in-law of
the plaintiff. The said case was charge sheeted and taken on file in C.C
No.104 of 2004 and ended in acquittal. Therefore, the defence taken by
the defendant has been falsified. The appellants' counsel therefore
submitted that lodging of the criminal case at the instance of the
defendant ought not to be taken note of. He would further submit that
the burden of proof lay entirely on the defendant to show that he did not
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issue the cheque and that no consideration has passed under the
cheque. The trial court erroneously cast the burden of proof on the
plaintiff. It is a fact that the defendant was running a bus service and
that it was closed as it ran into loss. In any event, there cannot be a
presumption that merely because someone has no need or necessity, he
should not borrow loan. There is no justification for the trial court to
make such unfounded presumptions in favour of the defendant. He
called upon this court to set aside the impugned judgment and decree
passed by the trial court and allow this appeal.
6.Per contra, the learned counsel appearing for the respondent
submitted that the trial court has given strong and convincing reasons
for dismissing the suit and that no interference is called for.
7.I carefully considered the rival contentions and went through
the evidence on record. The first question that calls for consideration is
whether the presumption under Section 118 of the Negotiable
Instruments Act can be invoked in favour of the plaintiff. The learned
counsel for the respondent draws my attention to the decision of the
Hon'ble Supreme Court reported in (1996) 8 SCC 586
(K.P.O.Moideenkutty Hajee vs. Pappu Manjooran and another) to
contend that where the plaintiff pleads different considerations, the
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presumption would not be available. He pointed out that while in the
plaint, the plaintiff would state that the suit cheque was issued towards
the repayment of the loan on 01.07.2002, in Ex.B15 she would state that
the cheque in question was issued towards the balance sale
consideration in respect of the property purchased in the year 1996
under Ex.B14.
8.I went through the said judgment. The Hon'ble Supreme
Court had held that if the plaintiff pleads different considerations in the
plaint, then, the initial presumption raised under Section 118 of the
Negotiable Instruments Act would become unavailable. In the case on
hand, the plaintiff had not plead different considerations in the plaint.
It has been categorically pleaded that only in respect of the loan
transaction said to have been taken place on 01.07.2002, the suit
cheque came to be issued. Therefore, I have to necessarily hold that the
presumption under Section 118 is very much available.
9.Now, the only question is whether this initial presumption
had been rebutted by the defendant. There is no dispute regarding the
blood relationship between the parties. The plaintiff is the aunt of the
defendant. It has been amply established in the evidene that the bus
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service run by the defendant was closed in the year 1999 itself. The
defendant's articles had been kept in the farm house at Kozhumadai
Village. The allegation of the defendant is that the plaintiff's son-in-law
Muppidathi misappropriated those articles and that Crime No.224 of
2002 was registered against him on the file of the Munneerpallam Police
Station vide Ex.B4. It is true that the said case eventually ended in
acquittal. When the plaintiff was cross-examined in that regard, she
admitted that the police came in search of her son-in-law and that the
articles were handed over by them to the police. Of course, it has not
been brought out further in the cross-examination as to where the
articles were handed over. If the plaintiff's family had nothing to do with
the articles of the defendant, there were no necessity for the plaintiff to
admit that they handed over the defendant's articles to the police.
10.The learned counsel for the respondent draws my attention
to the decision reported in 2009 (4) CTC 295 (Seth Ramdayal Jat v.
Laxmi Prasad). The Hon'ble Supreme Court had held that the civil
proceedings as also a criminal proceeding may go on simultaneously
and the decision in a criminal case is not binding on a civil court. It
was further held that an admission made in a civil suit in respect of a
criminal case is very much admissible. According to the appellant, the
criminal case ended in acquittal on 23.11.2007 itself. The suit came to
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be dismissed only on 11.09.2008. Therefore, nothing stopped the
plaintiff from marking the judgment of acquittal before the trial court.
Therefore, having failed to mark the judgment of acquittal before the trial
court, the appellant cannot fault the trial court for havint attached
significance to Ex.B4 FIR registered against the plaintiff son-in-law by
the defendant.
11.The plaintiff herself examined as PW.1. During the course of
her examination, she was confronted with Ex.B15. Initially, the
plaintiff denied the filing of Ex.B15. But, in the cross-examination, she
admitted that the signature found in Ex.B15 is hers. She also admitted
that Thalaiyuthu police enquired her. Ex.B15 is the complaint given
by the plaintiff against the defendant. The complaint was registered as
CSR No.27 of 2001 and after the enquiry, the parties were advised to
move the civil court.
12.I am more than satisfied that Ex.B15 was actually given by
the plaintiff against the defendant. A perusal of the said complaint
would show that the grievance of the plaintiff is that the defendant after
giving a sum of Rs.2.00 lakhs got the plaintiff's property registered in his
favour on 10.07.1996 vide Ex.B14. He had agreed to pay a further sum
of Rs.7.00 lakhs on 27.09.2002. The defendant gave the cheque for Rs.
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7.00 lakhs. When the plaintiff deposited the same for collection with her
banker on 05.07.2002, it was returned unpaid on 07.10.2002. A mere
look at the complaint would show that the said cheque was deposited on
05.07.2002 and returned unpaid. The details set out in Ex.B15
complaint and the details set out in the plaint tally with each other. I
have no hesitation to come to the conclusion that the suit cheque
referred to in the plaint and in Ex.B15 is one and the same. During the
cross-examination, the plaintiff admits that the defendant had given only
one cheque to her. By marking Ex.B15 and Ex.B4 and by eliciting the
aforesaid answers from the plaintiff, the defendant more than rebutted
the presumption that was initially raised against him under Section 118
of the Negotiable Instruments Act. The trial court after a overall
consideration of the evidence on record rightly came to the conclusion
that the plaintiff has come out with a false version. No interference is
called for. The appeal lacks merit. It stands dismissed. No costs.
27.08.2021
Index : Yes/No
Internet : Yes/No
skm
To
1.The Principal District Judge, Tirunelveli.
https://www.mhc.tn.gov.in/judis/
Copy to :
The Section Officer, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
G.R.SWAMINATHAN, J.
skm
AS(MD)No.22 of 2014
27.08.2021
https://www.mhc.tn.gov.in/judis/
