Dishonouring of cheque--Issuance of dishonour slip by bank--Admission of cheque and signatures by appellant--Non-producing of evidence regarding fraud--

 PLJ 2022 Lahore 195

Civil Procedure Code, 1908 (V of 1908)--

----O.XXXVII Rr. 1 & 2--Suit for recovery--Dishonouring of cheque--Issuance of dishonour slip by bank--Admission of cheque and signatures by appellant--Non-producing of evidence regarding fraud--No FIR was registered regarding misplacing of cheque--Invalid tendering of invalid documentary evidence--Challenge to--Appellant admitted cheque in question pertaining to his cheque book bearing Account No. 1404-4 of National Bank of Pakistan and also admitted signatures on said cheque--Defensive assertion of appellant regarding fraud remained unproved as he has neither produced any evidence in respect of fraud nor lodged an application or got registered an FIR regarding his misplaced cheque before Police Station--Appellant has failed to prove his case through convincing, concrete and trustworthy evidence--Appellant got produced his entire documentary evidence in statement of his counsel which is an invalid tender of documentary evidence and cannot be taken into consideration as law requires that such documentary evidence should be produced by party itself--Counsel for appellant has not been able to point out any illegality or material irregularity, misreading and non-reading of evidence in impugned judgment & decree passed by trial Court and has also not identified any jurisdictional defect--Appeal dismissed.

                                                                              [P. 199] A, B, D & E

Negotiable Instruments Act, 1881 (XXVI of 1881)--

----S. 118--Legal presumption--Obligation of--A strong legal presumption is attached to issuance of negotiable instrument  against consideration and appellant was placed under heavier obligation to dislodge above presumption by producing extraordinary trustworthy corroborative evidence.           [P. 199] C

2020 SCMR 1621 ref.

Mr. Muhammad Faisal Bashir Chaudhary, Advocate for Appellant.

Mr. Muhammad Asghar Shad, Advocate for Respondent.

Date of hearing: 2.3.2021.

 PLJ 2022 Lahore 195
[Multan Bench, Multan]
Present: Ch. Muhammad Iqbal, J.
MUHAMMAD HANIF--Appellant
versus
MUHAMMAD YOUSAF--Respondents
R.F.A. No. 62 of 2009, decided on 2.3.2021.

Order

Through this Regular First Appeal, the appellant has challenged the legality of judgment and decree dated 28.03.2009 passed by the learned Addl. District Judge, Vehari who decreed the suit for recovery of Rs. 13,35,000/- under Order XXXVII Rules 1 & 2, CPC filed by the respondent.

2. Brief facts of the case are that the respondent/plaintiff filed suit for recovery of Rs. 13,35,000/-on the basis of dishonoured Cheque No. 133282 dated 25.07.2005 of Account No. 1404-4 against the appellant/defendant contending therein that the appellant borrowed an amount of Rs. 13,35,000/- on 11.05.2005 in the presence of witnesses and promised to pay the same very soon and in this respect he issued cheque dated 25.07.2005. Appellant appeared and filed petition for leave to appear and defend the suit which was accepted vide order dated 18.10.2005; subject to furnishing of surety bonds equivalent to the suit amount whereafter the appellant filed written statement and raised preliminary objections stating that disputed cheque is fake, fictitious, without consideration and based on fraud rather the same is stolen. Issues were framed and evidence was recorded. The learned trial Court vide judgment and decree dated 28.03.2009 decreed the suit for recovery of the respondent. Hence, this appeal.

3. I have heard the learned counsels for the parties at some length and gone through the record with their able assistance.

4. The main controversy centered in Issue Nos.1 & 6 which are reproduced as under:

"i.      Whether the Cheque of Rs. 13,35,000/- is forged, fictitious and result of fraud, and without consideration? OPD

vi.      Whether the plaintiff is entitled to recover a sum of
Rs. 13,35,000/- on the basis of Cheque dated 25.07.2005 from the defendant? OPP"

Nazir Ahmad Officer Grade-III, National Bank of Pakistan appeared as PW-1 who stated that he brought with record of Account No. 1404-4 which belongs to Muhammad Hanif; that Cheque (Exh.P-1) belongs to Account of Muhammad Hanif which was issued from his cheque book. The said cheque (Exh.P-1) came to their branch from National Bank of Pakistan Chak No. 100/WB Garah Mor Branch for encashment which was referred to drawer due to insufficient fund, after issuing memo. slip (Exh.P-2). Muhammad Riaz (PW-2) states that on 11.05.2005 he went to Garah Mor for some work/purpose whereafter he went to the commission shop            of Muhammad Yousaf where Haji Muhammad Yousaf, Muhammad Sadiq and one other person he did not know to him and their clerk (Munshi) were sitting there; Muhammad Hanif borrowed Rs. 13,50,000/- from Muhammad Yousaf on promise that he would return the said amount before starting his business; Muhammad Yousaf gave Rs. 13,35,000/- to Muhammad Hanif from his safe, and in lieu thereof Muhammad Hanif issued Cheque Exh.P-1 dated 25.07.2005. In cross-examination, he deposed as under:

میں نے مدعی سے مذاقا "پوچھا کہ آپ نے اس کو اتنی بڑی رقم دے دی ہے یہ تقریبا 11½ بجے کا وقت تھا جب مدعی نے مدعا علیہ کو رقم دی۔

Further stated that Muhammad Sadiq was sitting there before his coming; that Muhammad Hanif put his signatures on the said cheque and handed over the same to the plaintiff. Muhammad Younas PW-3 also supported the version of the plaintiff by stating that Muhammad Hanif received the money in his presence and issued cheque. In cross- examination he deposed as under:

محمد حنیف نے مدعی سے صرف رقم کے لین دین کے بارے میں پوچھا۔ اس کے علاوہ اور کوئی بات نہ ہوئی تھی۔ البتہ محمد یوسف نے کہا تھا کہ رقم کب واپس کرو گے تو حنیف نے کہا کہ تمہارا سیزن شروع ہونے سے قبل تمہاری رقم لوٹا دوں گا۔

Muhammad Yousaf (plaintiff) himself has appeared as PW-4 who states that he is running a business of commission shop and Muhammad Hanif borrowed from him an amount of Rs. 13,35,000/- in the presence of witnesses and made promise to return the said amount before starting his business season and in respect of said borrowed amount, he issued cheque which was dishonoured on its presentation and the bank issued dishonor slip in this regard as well. Lengthy cross examination was conducted but the stance of the plaintiff could not be shattered.

Conversely, Muhammad Hanif has appeared as DW-1 who did not deny his signature on the cheque and only took a stance that fraud has been committed with him but in this regard, no evidence was produced. Abdul Jabbar appeared as DW-2 who stated that he was serving with the plaintiff as Munshi from 07.09.2005 to 26.02.2006 and during that period no meeting was convened between the parties and no transaction was also happened and on 11.05.2005 appellant/ defendant neither came at the commission shop of the plaintiff nor borrowed the money nor issued any cheque to the plaintiff. Muhammad Yasin has appeared as DW-3 who stated that defendant never borrowed money as stated by the plaintiff nor he issued any cheque, as such, dispute cheque is fake, fictitious and without consideration and this fact was admitted by the plaintiff before him at his commission shop. Haji Muhammad Ismail appeared as DW-4, who almost narrated the same story.

5. From the perusal of oral as well as documentary evidence, it reveals that the appellant admitted the cheque in question pertaining

to his cheque book bearing Account No. 1404-4 of National Bank of Pakistan and also admitted the signatures on the said cheque but has only pleaded that fraud has been committed without furnishing any comprehensive meticulous information of fraud, misrepresentation as per requirements of Order VI Rule 4, CPC whereas the defensive assertion of the appellant regarding fraud remained unproved as he has neither produced any evidence in respect of fraud nor lodged an application or got registered an FIR. regarding his misplaced cheque before the Police Station. The appellant has failed to prove his case through convincing, concrete and trustworthy evidence.

6. Even otherwise, under Section 118 of the Negotiable Instruments Act a strong legal presumption is attached to issuance of negotiable instrument (cheque) against consideration and the appellant was placed under heavier obligation to dislodge the above presumption by producing extraordinary trustworthy corroborative evidence. Reliance in this regard is placed on the case titled as Najaf Iqbal vs. Shahzad Rafique (2020 SCMR 1621). Moreover the appellate got produced his entire documentary evidence in the statement of his learned counsel which is an invalid tender of the documentary evidence and cannot be taken into consideration as the law requires that such documentary evidence should be produced by the party itself. The learned trial Court rightly passed the impugned judgment and decree which do not suffer from any illegality, irregularity and perversity.

7. Learned counsel for the appellant has not been able to point out any illegality or material irregularity, misreading and non-reading of evidence in the impugned judgment & decree passed by the learned trial Court and has also not identified any jurisdictional defect.

8. In view of above, this appeal is hereby dismissed being devoid of any merits. No order as to costs.

(Y.A.)  Appeal dismissed