JUDGMENT Arun Kumar Goel, J.—This appellants appeal (hereinafter referred to as the plaintiff) is directed against the judgment and decree passed by Additional District Judge (1), Shimla in Civil Appeal No. 24 S/13 of 1988/ 86. whereby the appeal of the respondents (hereinafter referred to as the defendants), has been allowed and consequently the judgment and decree passed by Sub-Judge 1st Class, Theog in Civil Suit No. 137/1 of 1981, has been reversed and resulting in the suit of the plaintiff being dismissed, 2. Brief facts giving rise to this appeal are that the plaintiff filed a suit for recovery of Rs 20,000 on the allegations that Daulat Ram and Chet Ram, who were arrayed as defendants No, 2 and 3 being real brothers,, were proprietors of defendant No,. 1 M/s, Daulat Ram and Brothers and these defendants were dealing in the sale and purchase of timber and trees. Plaintiff was a sole proprietary concern of Chanan Singh, who died during the pendency of the appeal and his legal representatives were brought on record vide orders of this Court dated 18 6 1986. According to plaintiff Chanan Singh had purchased standing Deodar and Kail trees from number of persons and he had paid money to such persons as per agreement. According to the averments he had finalised the deal with the defendants for the purchase of the standing trees at the rate of Rs. 6/50 per eft. of deodar trees and Rs, 4 per eft, for Kail trees and such deal was reduced into writing in the month of February 1980, After completing codal formalities of getting such trees makred, thereafter, felling and converting those into timber scants, i e 3000 scants of different sizes were brought to road head known as Dhurala by the defendants which was their launching depot. Case of the plaintiff further was that on reaching at the launching depot, plaintiff was paid a sum of Rs. 20,000 after the parties had made settlement of accounts as this sum was due and payable. Case of the plaintiff further was that on reaching at the launching depot, plaintiff was paid a sum of Rs. 20,000 after the parties had made settlement of accounts as this sum was due and payable. According to the plaintiff for the sum of Rs, 20,000 defendants issued a cheque for this amount on 16-7-1981 and when this cheque was presented for encashment, the same was dishonoured by its banker and according to the plaintiff this false cheque was issued by the defendants with a dishonest intention to cheat the plaintiff, when the defendants had no amount in the bank at all and further according to the plaintiff the defendants had failed to acknowledge that they had no money in the bank on that date. According to plaintiff^ since the cheque had bounced, therefore, he had a cause of action to maintain the suit for recovery of Rs. 20,000. 3. This suit was contested and resisted by the defendants who pleaded that they did not owe Rs. 20,000 to the plaintiff as alleged by him, but infact they owed Rs 36,000 out of which Rs 20,000 was paid in cash against receipt (Ex. DA) at Shimla on 16-7-1981 and on the same date another sum of Rs. 16,000 was paid by another receipt (Ex. DB) at Theog since they did not have adequate money to liquidate the total sum |of Rs. 36,000 as payable by them to the plaintiff. It was further pleaded by the defendants that after the receipt of this amount, plaintiff also get an affidavit attested on the same date i. e 16-7-1981 (Ex, D-1) and thus no amount was payable by them. In respect of cheque in question, it was stated that defendant No 3 Chet Ram was having a saving bank account with Indian Bank, The Mall, Shimla Branch and on search it was found that the cheque book was missing, At such point of time the said defendant No. 3 Chet Ram informed the bank authorities for cancellation of the said cheque book so that fraud by any party may be averted. This intimation appears to have been sent by the defendant No 2 to its banker vide Ex DE after the receipt of notice from the court on 10-10-1981. With these pleadings the claim of the plaintiff was repudiated. 4. This intimation appears to have been sent by the defendant No 2 to its banker vide Ex DE after the receipt of notice from the court on 10-10-1981. With these pleadings the claim of the plaintiff was repudiated. 4. After filing of the written statement, plaintiff applied for amendment of the plaint before the trial Court and while praying for amendment, plaintiff also pleaded that after the settlement of account, a sum of Rs. 35,540 was found payable by the defendants and a cheque of Rs. 20,000 was handed over to the plaintiff in full and final settlement and for that reason he had issued a receipt in the sum of Rs, 35,540 to the plaintiff. This amendment was allowed, 5. Defendants felt aggrieved by the aforesaid amendment allowed by the trial Court on 26-4-1982 and the matter was brought before this Court by the defendants in Civil Revision No 178/82 and when finally disposing of the revision petition, it was accepted and the order of amendment was limited to the correction of date of settlement i. e. from 16 8-I9S1 to 16-7-1981 and this mistake was permitted to be corrected in paras 6, 7 and 9 of the plaint and other part of the amendment allowed by the trial Court was rejected. In these circumstances, the plaintiff filed second amended plaint which is the plaint for the purpose of determination of the present case. 6. In order to properly appreciate the submissions made during the course of this appeal, pleadings made in para 6 of the plaint as well as in para 6 of the written statement are extracted hereinbelow : "Para 6 of amended plaint That according to the agreement, the defendants were to make final payments, on reaching of the timber, at the Launching-Depot. That on 16-7-1981 the defendants and the plaintiff made settlement of accounts and the sum of Rs, 20,000 (Twenty thousands) was found payable by the defendants to the plaintiff as unpaid price of the trees purchased. The defendants with intention to make payment to the plaintiff, handed over a cheque of Rs. 20,000 (Rs. Twenty thousands) to the plaintiff and the plaintiff gave a receipt of Rs. 20,000 (Twenty thousands) to the defendants in lieu of the cheque of Rs. 20,000 (Twenty thousands) " "Para 6 of written statement to the second amended plaint. 6. The defendants with intention to make payment to the plaintiff, handed over a cheque of Rs. 20,000 (Rs. Twenty thousands) to the plaintiff and the plaintiff gave a receipt of Rs. 20,000 (Twenty thousands) to the defendants in lieu of the cheque of Rs. 20,000 (Twenty thousands) " "Para 6 of written statement to the second amended plaint. 6. That in reply to para 6 of the plaint, it is denied that the defendants were to make the final payment on reaching the timber at the launching depot It is not denied that the defendants and the plaintiff made settlement of accounts on 16-7-1981, but it is wrong and denied that on settlement only a sum of Rs. 20,000 was found payable by the defendants to the plaintiff on 16-7-1981. It is wrong and denied that the defendants handed over a cheque of Rs. 20,000 as alleged. The fact of the matter is that on settlement of accounts, a sum of Rs. 36,000 was found due to be payable to the plaintiff by the defendants on 16-7-1981, and out of this amount of Rs. 36,000, a sum of Rs. 20,000 was paid to the plaintiff by the defendants at Shimla on 16-7-1981 and the same day the parties had come to Theog for final payment of the balance amount of Rs. 16,000 (Rupees Sixteen thousands) which was not ready with the defendants at that time at Shimla. Then the said sum of Rs. 16,000 was paid by the defendants to the plaintiff at Theog the same day, i. e., on 16-7-1981. The plaintiff had given receipts of the said amounts to the defendants, and also gave an affidavit on 16-7-1981 on receipt of final payment of the balance amount at Theog. The matter of settlement of accounts and also the payments thereunder had been completed and concluded on 16-7-1981 Thereafter nothing remained to be settled or to be paid to the plaintiff, and as such, the question of making payment of Rs. 20,000 through cheque of 16-8-1981 does not arise at all. In case the payment of Rs. 20,000 would had been made through cheque to the plaintiff as alleged the same would had found mention in the receipt, whereas the receipt is for cash payment. 20,000 through cheque of 16-8-1981 does not arise at all. In case the payment of Rs. 20,000 would had been made through cheque to the plaintiff as alleged the same would had found mention in the receipt, whereas the receipt is for cash payment. The cheque is alleged to have been issued on the cheque book issued against the bank account of the defendant No, 3, and when the defendant No. 3 searched for his cheque book, he found the same missing and reported the said matter to the bank authorities for cancellation of the said cheque book so that fraud by any party may be averted.” 7. The plaintiff did not care to meet the facts as pleaded by the defendants in para 6 reproduced herein above and for the sake of convenience, para 6 of the replication is also extracted hereinbelow : “That the plaintiff received Rs. 15,540 in cash and one post dated cheque of Rs. 20,000 towards the final payments of the price of the trees purchased by the defendants. It is wrong and not admitted that any sum of Rs. 20,000 was paid in cash on 16-7-1981 at Shimla. It is denied that Cheque Book of the defendant No. 3 was missing and it is denied that any fraud was played on the defendants. The rest of the para 6 of the written statement is not admitted and the para 6 of the plaint is reasserted." On the aforesaid pleadings, parties went to trial on the following issues: 1. Whether the defendants issued a false cheque on 16-7-1981 as alleged in para 7 of the plaint ? If so, its effect ? OPP 2. Whether there was settlement of the account between the parties and if so, when Rs. 20,000 amount was found due from the defendants ? OPP 3. Whether a sum of Rs, 20,000 was paid in cash by the defendants to the plaintiff in Shimla, as alleged ? OPD 4. Whether a sum of Rs. 16,000 was paid by the defendants to the plaintiff at Theog, as alleged ? OPD 5. Relief. 8. Trial Court after conclusion of the trial, decreed the suit of the plaintiff for Rs. 20,000 with costs. . OPD 4. Whether a sum of Rs. 16,000 was paid by the defendants to the plaintiff at Theog, as alleged ? OPD 5. Relief. 8. Trial Court after conclusion of the trial, decreed the suit of the plaintiff for Rs. 20,000 with costs. . 9 Defendants feeling aggrieved by and dis-satisfied with the said judgment and decree preferred appeal before the lower appellate Court, which was allowed and consequently the suit of the plaintiff has been dismissed, hence this appeal, 10. Shri Bhupender Gupta, learned Counsel appearing for the plaintiff has in support of the appeal raised number of pleas viz.: (a) That the cheque in question is presumed to be for valuable consideration under section 118 of the Negotiable Instrument Act and in the present case, there is no rebuttal to such presumption ; (b) No specific case either that of theft or misplacement of cheque book at all by defendant No 3 is proved in the instant case and according to him Ex. DE, L e. letter sent by defendant No. 3 to his banker is purely an after thought to defeat the lawful claim of the plaintiff; (c) Cheque Ex, PA has been properly connected with the suit transaction, whereas receipts Ex, DA and DB are firstly not proved and secondly have nothing to do with the suit transaction ; (d) Under what circumstances cheque Ex. PA was issued remains a shrouded mystery ; (e) Defendants have not proved the account books when defendant No. 1 admits the existence thereof and thus lower appellate Court ought to have drawn adverse inference ; and (f) The lower appellate Court has fallen into an error by acting as an expert in comparing signatures of defendant No. 3 on Ex. DA with his admitted writings/signatures. 11. On the other hand, Shri Jagdish Vats, learned Counsel appearing for the defendants, has controverted all these submissions of the learned Counsel for the plaintiff. 12. So far as the submissions of Sh. Bhupender Gupta regarding Ex. PA are concerned, he could avail of the statutory presumption available under the Negotiable Instrument Act on cheque, as in the present case, had DW 1 admitted his signatures thereon. He has categorically stated in cross-examination that Ex. PA is not signed by him nor he is the scribe thereof. In the face of this position, the statutory presumption is not available in favour of the plaintiff. He has categorically stated in cross-examination that Ex. PA is not signed by him nor he is the scribe thereof. In the face of this position, the statutory presumption is not available in favour of the plaintiff. It may be appropriate to mention in this context that plaintiff made an attempt to get the signatures of the drawer of the cheque Ex PA compared on it with the admitted writings and signatures from Government Examiner of Questioned Documents. This application was allowed by the trial Court vide order dated 10-12-1984, however, no opinion was given by the Government Examiner of Questions Documents in this behalf, as such, the situation remained as it was. In any event defendant No. 3 while appearing as DW 1 has specifically stated on oath to the contrary in this behalf and, therefore, the plaintiff is not entitled to the benefit of provisions of section 118 of the Negotiable Instruments Act Similarly, the plea raised regarding Ex. DE being an after-thought must also fail, because immediately after defendant No. 3 came to know about the cheque in question, he immediately sent letter Ex. DE to his banker on 10-10-1981, Defendants have been further successful in explaining the circumstances regarding the loss of cheque book, as such, there is no question of their having failed to explain as to how the cheque came into existence, in addition to the fact that it is neither signed nor scribed by defendant No. 3 from whose saving account this cheque is stated to have been issued Regarding the plea of the account books having not been produced by the defendant again in his cross-examination, the DW 1 has specifically stated that they have been maintaining register of accounts Bahi, but they were not making regular entires therein and entries to the effect as to what money was received and from whom were also not recorded in it. According to Chet Ram (DW 1) account of labour was being maintained and business of forest and timber was being orally carried out by them, although he admits that cheques were being issued by him and account No. 1812 wherefrom Ex. PA is stated to have been issued was his personal account. 13. On the other hand, there is overwhelming evidence to show that the plaintiff had received Rs. PA is stated to have been issued was his personal account. 13. On the other hand, there is overwhelming evidence to show that the plaintiff had received Rs. 20,000 at Shimla and had executed receipt in the presence of DW Prem Singh Kanwar on 16-7-1981 (Ex. DA) and had further received a sum of Rs. 16,000 on the same day at Theog and had executed receipt Ex. DB) in token thereof in the presence of DW Kedar Singh. Both these witnesses have appeared as DWs 2 and 3 respectively. The statements of both these witnesses are trustworthy, reliable besides those inspire confidence and I have no reason to discard their statements. In the context of proof of payment on the part of the defendants of Rs. 36,000, another material document is Ex. D-l an affidavit on behalf of the plaintiff given by its proprietor which has been duly attested by Sub-Divisional Magistrate. It specifically recites that he has received the total amount including his expenses etc. from M/s. Daulat Ram Janamdev and others and in this affidavit itself he has further stated that if there is any amount payable to the Jamindaran that would be his responsibility. This affidavit Ex. D-l is not disputed by the plaintiff- Defendants had also been making payments earlier to the plaintiff from time to time and receipts were being issued by him. Few of such receipts are Exhibits D-2, D-3, D-4, D-5, D-6, D-7 and D-8. In these circumstances, there is no reason to discard the evidence led on behalf of the defendants which further establishes beyond any shadow of doubt that a sum of Rs. 36,000 was payable by the defendants to the plaintiff and the same stands paid by means of Ex. DA and Ex. DB, which fact is further confirmed by the plaintiff in his affidavit Ex, D-l. 14. It may be further pointed out in the facts and circumstances of the case that the plaintiff had initially pleaded that after settlement of sum of Rs. 2,000 alone was payable by the defendants to the plaintiff. When written statement was filed, then defendants did apply for amendment with a purpose to incorporate the story of Rs 35,540 being payable after settlement of accounts and has gone on record to state on oath, although such statement was objected to as being without pleading by the defendants. 2,000 alone was payable by the defendants to the plaintiff. When written statement was filed, then defendants did apply for amendment with a purpose to incorporate the story of Rs 35,540 being payable after settlement of accounts and has gone on record to state on oath, although such statement was objected to as being without pleading by the defendants. When amendment was sought, finally this Court in civil revision No. 178/ 82 declined the prayer permitting the plaintiff to incorporate such plea in the plaint by way of amendment and the actual material pleadings for the purpose of the present case, have been reproduced herein above in this judgment. In this context, the evidence of the plaintiffs witnesses PW 1 and PW 2 do not inspire confidence and are not worthy of credence and accordingly no reliance is being placed on such statements. 15. Shri Jagdish Vats has lastly emphasised that the findings recorded by the lower appellate Court do not call for any interference. Those are based on findings of fact based on due appraisal of evidence produced by the parties, and according to him there is no substantial question of law involved in this case. Further, the plaintiff has not come to the court with clean hands, as such, the appeal merits dismissal. After giving my thoughtful consideration, I am of the view that both the contentions deserve to be upheld for the reasons given hereinafter. In this behalf it may be clarified that Mr. Gupta could not point out anything to say that the finding recorded by the lower appellate Court required any interference in this appeal. 16. Since the cheque Ex PA has been held not to be scribed/signed by defendant No. 3, so there was no requirement for the defendants to explain, as to how it was and under what circumstance. And on this basis plaintiff has failed to connect the cheque Ex. PA with the suit transaction. 17. The plaintiff while in the plaint had suppressed the material facts and when confronted with stand of the defendants taken up in their written statement he did make an attempt and was successful to cover up the gap. This clearly establishes mal/i fides on his part so far as he put up his case in the trial Court. 18. 17. The plaintiff while in the plaint had suppressed the material facts and when confronted with stand of the defendants taken up in their written statement he did make an attempt and was successful to cover up the gap. This clearly establishes mal/i fides on his part so far as he put up his case in the trial Court. 18. From whatever angle the case may be viewed, there is no merit in any of the contentions raised by Shri Bhupender Gupta on behalf of the appellant. No other point has been urged in support of this appeal. 19. As a result of the aforesaid discussion, the present appeal is devoid of any merit and consequently the same is dismissed with costs, which are quantified at Rs 1,000.