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2012 DIGILAW 437 (MAD)

O. Babu Reddy v. B. Prabhakara Reddy

2012-01-30

M.VENUGOPAL

body2012
Judgment :- 1. The Appellant/Defendant has filed the present Second Appeal as against the Judgment and Decree of the 1st Appellate Court dated 04.02.1997 in A.S.No.158 of 1996 passed by the Learned II Additional Judge, City Civil Court, Chennai in reversing the Judgment and Decree dated 29.02.1996 in O.S.No.8030 of 1992 passed by the Learned V Assistant Judge, City Civil Court, Chennai. 2. The 1st Appellate Court viz., the Learned II Additional Judge while allowing the A.S.No.158 of 1996 on 04.02.1997 (filed by the Respondent/ Plaintiff as an Appellant) has, among other things observed that the Appellant/ Defendant has received a sum of Rs.20,000/- through cheque dated 10.08.1989 and further, the Appellant/Defendant has not established that the sum of Rs.20,000/-received by him through cheque from the Plaintiff has been received only for the purpose of loan availed by the Plaintiff and consequently, directed the Appellant/Defendant to pay a sum of Rs.20,000/- together with interest at 18% per annum as prayed for in the plaint and also, to pay the interest at 18% per annum till the said amount is fully paid and passed a decree to the effect thereby allowing the Appeal by setting aside the Judgment and Decree of the trial Court in O.S.No.8030 of 1992 dated 29.02.1996 in dismissing the Suit. 3. In the main suit, the trial Court has framed 1 to 3 issues for determination. On behalf of the Respondent/Plaintiff, P.W.1 (Plaintiff) has been examined as a witness and Exs.A.1 to A.4 have been marked. On the side of the Appellant/Defendant, no one has been examined as a witness and no document has been marked. 4. The trial Court after scrutinising the entire oral and documentary evidence available on record has come to a definite conclusion that the Respondent/Plaintiff has not established his plaint averments clearly and further, held that the Respondent/Plaintiff is not entitled to get the amount claimed in the plaint from the Appellant/ Defendant and resultantly, dismissed the suit without costs. 5. At the time of Admission of the Second Appeal this Court has formulated the following substantial questions of law: 1. Whether the lower Appellate Court had erroneously cast the burden of proof on the Defendant contrary to the provisions under Section 101 of the Evidence Act? 2. 5. At the time of Admission of the Second Appeal this Court has formulated the following substantial questions of law: 1. Whether the lower Appellate Court had erroneously cast the burden of proof on the Defendant contrary to the provisions under Section 101 of the Evidence Act? 2. Whether the lower Appellate Court committed a grave error in coming to the conclusion that a mere entry in the pass book would be sufficient proof to show payment by the Plaintiff to Defendant without production of the original instrument of the original cheque and proof of the person who received the payment, in view of the fact that the cheque in question is a bearer cheque? 3. Whether the lower Appellate is correct in constructing that the bearer cheque is a negotiable instrument in view of the fact that the original has not been produced before Court? 6. The Contentions, Discussions and Findings on substantial questions of law 1 to 3: It is the contention of the Learned Counsel for the Appellant/ Defendant that the Judgment of the 1st Appellate Court in A.S.No.158 of 1996 is contrary to law, weight of evidence and probabilities of the case. The Learned Counsel for the Appellant/Defendant urges before this Court that there is no proof for the purported demand of loan of Rs.20,000/-by the Respondent/ Plaintiff to the Appellant/Defendant. 7. According to the Learned Counsel for the Appellant/Defendant, the 1st Appellate Court has failed to appreciate that the alleged payment by means of cheque drawn on Indian Overseas Bank, Cathedral Branch, Madras-2, infact has been paid to the Appellant/Defendant in repayment of loan availed by the Respondent Plaintiff from him. 8. The stand of the Appellant/Defendant is that the 1st Appellate Court has failed to see that there is no admission for the receipt of Rs.20,000/-by the Appellant/Defendant as hand loan. 9. Continuing further, the Learned Counsel for the Appellant/Defendant submits that the 1st Appellate Court has failed to note that previous enmity between the parties existed and in the light of the said circumstances, should have come to the conclusion that the purported payment of loan of Rs.20,000/- cannot be true. 10. The Learned Counsel for the Appellant/Defendant projects a legal plea that the 1st Appellate Court has erroneously shifted the burden of proof on the Appellant/Defendant contrary to the provisions of Section 101 of the Indian Evidence Act. 11. 10. The Learned Counsel for the Appellant/Defendant projects a legal plea that the 1st Appellate Court has erroneously shifted the burden of proof on the Appellant/Defendant contrary to the provisions of Section 101 of the Indian Evidence Act. 11. Expatiating his submissions, the Learned Counsel for the Appellant/ Defendant contends that the bearer of a cheque cannot be construed as a negotiable instrument in view of the fact that the original cheque has not been produced before the Court. Lastly, it is contention of the Learned Counsel for the Appellant/Defendant that the Judgment of the 1st Appellate Court in the Appeal has been based on surmises and presumptions. 12. Per contra, it is the submission of the Learned Counsel for the Respondent/Plaintiff that the trial Court based on wrong reasons has dismissed the suit, but the 1st Appellate Court has gone into the matter in a thread bare fashion and has analysed the oral and documentary evidence on record, based on the attendant facts and circumstances of the case in a cumulative fashion and has come to a clear conclusion that the Appellant/Defendant has received a sum of Rs.20,000/-through cheque dated 10.08.1989 from the Respondent/ Plaintiff and that he is liable to pay the said amount together with interest at 18% etc and those findings need not be disturbed by this Court in the Second Appeal. 13. At this juncture, it is not out of place for this Court to make a relevant mention that the Respondent/Plaintiff, in the plaint has averred that he and the Appellant/Defendant are friends and know each other for the past ten years and more and that during the 1st week of August 1989, the Appellant/Defendant approached him and requested him to lend Rs.20,000/- representing that in connection with securing an agency from M/s.Pondicherry Minerals. Further, the Respondent/Plaintiff has informed that he is willing to lend, provided, 18% interest is paid on the loan amount, for which the Appellant/Defendant has agreed to pay the same. As such the Respondent/ Plaintiff has lent a sum of Rs.20,000/- to the Appellant/Defendant by way of a bearer cheque for Rs.20,000/ dated 10.08.1989 drawn on Indian Overseas Bank, Cathedral Branch, Madras-2. The Appellant/Defendant received the cheque and encashed the same on the same day and received Rs.20,000/-. 14. As such the Respondent/ Plaintiff has lent a sum of Rs.20,000/- to the Appellant/Defendant by way of a bearer cheque for Rs.20,000/ dated 10.08.1989 drawn on Indian Overseas Bank, Cathedral Branch, Madras-2. The Appellant/Defendant received the cheque and encashed the same on the same day and received Rs.20,000/-. 14. The Appellant/Defendant has been postponing the payment of loan amount demanded by the Respondent/Plaintiff on some reason or the other and finally, the Appellant/Defendant has undertaken to repay the said amount and settle the account before March 1992. But, the Appellant has not kept his word. Again during the last week of March 1992, the Respondent/Plaintiff pressed for settlement of the dues. The Appellant/Defendant instead of returning back the loan, which he received, has made a false complaint against the Respondent/Plaintiff to Police i.e., to the Assistant Commissioner of Police, T.Nagar and Saidapet Range alleging that the Respondent/Plaintiff had received Rs.25,000/-to secure a job for his friends son and cheated him in that connection. The Police lodged the said complaint, since they found no truth in it. 15. The Respondent/Plaintiff has issued Ex.A.1 Lawyers Notice dated 19.05.1992 to the Appellant/Defendant demanding him to repay the sum of Rs.20,000/- with interest at 18% per annum within fifteen days from the date of receipt of the notice through his Counsel denying the loan etc. Therefore, the Respondent/Plaintiff has laid the suit for recovery of a sum of Rs.30,800/- (principal sum of Rs.20,000/-and interest sum of Rs.10,800/- at 18% per annum for the period from 10.08.1989 to 07.08.1992) and for the subsequent interest at 18% per annum till the date of payment. 16. The Appellant/Defendant, in his written statement has taken the pleas that it is not true that he has borrowed a sum of Rs.20,000/-from the Respondent/Plaintiff during the 1st week of August 1989 and the fact remains that the Respondent/Plaintiff has been borrowing sums on several occasions by way of hand loan since 1980 and that the Appellant/Defendant has been residing as a tenant in the house of the brother of the Plaintiff at Nellore, Andhra Pradesh in 1980. The Respondent/Plaintiff has been taking hand loan from the Appellant/Defendant. The Respondent/Plaintiff has been working in the Telecom Department and he was unable to make both ends meet with his salary and further, he has been taking hand loan from the Appellant/ Defendant. The Respondent/Plaintiff has been taking hand loan from the Appellant/Defendant. The Respondent/Plaintiff has been working in the Telecom Department and he was unable to make both ends meet with his salary and further, he has been taking hand loan from the Appellant/ Defendant. Being a relative, the Appellant/Defendant did not insist on any pro note or I.O.U. The Respondent/Plaintiff handed over a cheque to the Appellant/Defendant for Rs.20,000/-during the 1st week of August 1989. 17. The specific case of the Appellant/Defendant is that he has not borrowed the sum of Rs.20,000/- from the Respondent/Plaintiff for securing an agency from M/s.Pondicherry Minerals and that the Appellant/Defendants wife is a partner in M/s.Dynamic Marketing Company. It is a dealer for M/s.Pondicherry Minerals. Even before 1989, M/s.Dynamic Marketing Company is in existence and there is no necessity to borrow Rs.20,000/-from the Respondent/Plaintiff for securing agency from M/s.Pondicherry Minerals. 18. The Appellant/Defendant has further averred in the written statement that one Jaganathan is a sub-dealer to M/s.Dynamic Marketing Company and the said Jaganathan has got acquittance with the Appellant/ Defendant. Jaganathans son Saravanan has applied for the post of Junior Telecom Officer in the P & T Department. In January 1990, when the Respondent/Plaintiff met the Appellant/Defendant in the latters house, Jaganathan and his son have been present and when the Respondent/Plaintiff has come to know that Saravanan has applied for the post of Junior Telecom Officer, he informed the Appellant/Defendant and Jaganathan that he could get the job for Saravanan with his influence and demanded a sum of Rs.50,000/-for the purpose of procuring the job. Jaganathan agreed to pay Rs.25,000/- as advance and promised to pay the balance after getting the appointment order. Jaganathan paid the said sum of Rs.25,000/- to the Respondent/Plaintiff in the month of February 1990 through the Appellant/ Defendant. Saravanan has not got the job. The Appellant/Defendant, Jaganathan and Saravanan demanded from the Respondent/Plaintiff refund of Rs.25,000/-in the month of July 1991 and subsequently, on several occasions. The Respondent/Plaintiff refused to refund the money and threatened the Appellant/Defendant, Jaganathan and Saravanan with dire consequences. Therefore, the Appellant/Defendant has been perforced to file a police complaint during March 1992 against the Respondent/Plaintiff for cheating. The Appellant/Defendant, Jaganathan and Saravanan demanded from the Respondent/Plaintiff refund of Rs.25,000/-in the month of July 1991 and subsequently, on several occasions. The Respondent/Plaintiff refused to refund the money and threatened the Appellant/Defendant, Jaganathan and Saravanan with dire consequences. Therefore, the Appellant/Defendant has been perforced to file a police complaint during March 1992 against the Respondent/Plaintiff for cheating. As a counter blast to the police complaint given by the Appellant/Defendant, the Respondent/Plaintiff issued a legal notice to the Appellant/Defendant dated 19.05.1992 concocting a story of the alleged loan of Rs.20,000/-availed by the Appellant/Defendant from the Respondent/Plaintiff. A reply notice through the Appellant/Defendants Lawyer dated 30.05.1992 has been given to the Respondent/Plaintiffs Lawyer. For cheating, a private complaint has been filed on 13.07.1992 by the Appellant/Defendant before the Court of Chief Metropolitan Magistrate, Egmore. The case has been sent to the Crime Branch for investigation and the case has been registered by the Crime Branch and investigation is pending. 19. The evidence of P.W.1 is to the effect that the Appellant/Defendant, on 10.08.1989, has received a sum of Rs.20,000/-from him and the Appellant/ Defendant has agreed to pay the interest at 18% per annum for the said sum of Rs.20,000/-. Continuing further, it is the evidence of P.W.1 that he has paid a sum of Rs.20,000/-to the Appellant/Defendant through cheque as per Ex.A.3 Cheque Slip and that the cheque has been encashed by the Appellant/ Defendant by presenting the same into the Bank and Ex.A.4 is the Bank Pass Book entry dated 10.08.1989 and thereafter, the Appellant/Defendant has not paid any principal amount or interest for the sum received by him. 20. That apart, it is the evidence of P.W.1 that it is correct to state that on 10.08.1989, a sum of Rs.20,000/-has been taken and it is wrong to state that through the Appellant/Defendant, with a view to get Jaganathans son employment, the sum of Rs.20,000/- has been paid. 21. In Ex.A.1 Respondent/Plaintiffs Lawyers notice dated 19.05.1992 addressed to the Appellant/Defendant, it is clearly mentioned that during the 1st week of August 1989, the Appellant/Defendant has approached the Respondent/Plaintiff and requested him to grant a loan of Rs.20,000/- for securing an agency from M/s.Pondicherry Minerals. Also, the Respondent/ Plaintiff has been willing to advance the said loan subject to the payment of interest at 18% per annum. Also, the Respondent/ Plaintiff has been willing to advance the said loan subject to the payment of interest at 18% per annum. Further, the Respondent/Plaintiff has given a bearer cheque No.766972 dated 10.08.1989 in favour of the Appellant/ Defendant drawn on Indian Overseas Bank, Cathedral Branch, Madras-2 and on the same day the said sum of Rs.20,000/- has been drawn by the Appellant/ Defendant, etc. In short, in Ex.A.1, the Respondent/Plaintiffs Lawyers notice addressed to the Appellant/Defendant, a demand has been made calling upon the Appellant/Defendant to pay the sum of Rs.20,000/- with interest at 18% from 10.08.1989 till payment within fifteen days from the date of receipt of the notice. 22. In Ex.A.2, the Appellant/Defendants Lawyers reply notice dated 30.05.1992 addressed to the Respondent/Plaintiffs Lawyer, it is mentioned that the Appellant/Defendant has nothing to do with M/s.Pondicherry Minerals and that the Appellant/Defendants wife and another are carrying on business and they were having agency from M/s.Pondicherry Minerals long before the alleged transaction mentioned in the notice and that the Respondent/Plaintiff obtained loans on different dates from the Appellant/Defendant and the cheque for Rs.20,000/-mentioned in Ex.A.1 notice has been only towards partial settlement of various loans obtained by the Respondent/Plaintiff, etc. In Ex.A.2, the Appellant/Defendants reply Lawyers notice dated 30.05.1992, the Appellant/Defendant has denied the allegations made by the Respondent/ Plaintiff in Ex.A.1 Lawyers notice. Ex.A.3 is the first page of the cheque book showing the details in respect of the cheque No.766972 dated 10.08.1989, where there is a reference to the payment of Rs.20,000/-to the Appellant/ Defendant. A perusal of Ex.A.4 Savings Bank Account of the Respondent/ Plaintiff SBC A/c. No.17389 in L.F.No.54/150 of Indian Overseas Bank shows that on 10.08.1989, through cheque No.766972, a sum of Rs.20,000/-has been encashed and entry has been found to that effect. After deducting a sum of Rs.20,000/-on 10.08.1989, the balance standing to the credit of SB account has been Rs.71,079.80paise. 23. As far as the present case is concerned, though the Appellant/ Defendant has denied the Respondent/Plaintiffs averments that he has borrowed a sum of Rs.20,000/-through cheque dated 10.08.1989 and has also made certain allegations in Ex.A.2 reply notice sent to Ex.A.1 notice dated 19.05.1992, yet he has not chosen to examine himself as a witness to prove his version of the case. 24. 24. The Plaintiff or Defendant, who later asserts the affirmative of an issue, generally, the burden of proof is always stable. It may shift according to the scale of evidence subsequently. 25. The burden of proof in the sense of onus of introducing evidence to prove a particular fact may and constantly does shift in the course of trial. A person by proving a fact will raise presumption in his favour and in that event, the burden will shift to the other side. 26. It is true that the initial burden is on the Respondent/Plaintiff to prove the case projected in the plaint. In the instant case on hand, the Respondent/Plaintiff has proved through Exs.A.4 and A.3 that a sum of Rs.20,000/-has been paid to the Appellant/Defendant and the said sum has been encashed by the Appellant/Defendant as seen from the entry in Ex.A.4 SB account of the Respondent/Plaintiff. The fact that the Respondent/Plaintiff has proved the initial burden of stating that the Appellant/Defendant has received a sum of Rs.20,000/-through cheque from him, then the burden under Section 101 of the Indian Evidence Act shifts on the Appellant/ Defendant to prove his version of the case. It is true that the original cheque for Rs.20,000/- in regard to the payment of Rs.20,000/-made on 10.08.1989 has not been produced or filed before the trial Court. The non-filing or non-marking of the said cheque is not fatal. Also, it will not in any way affect the case of the Respondent/Plaintiff, in the considered opinion of this Court. 27. This Court worth recalls Section 6 of the Negotiable Instruments Act, 1881, which deals about the definition of cheque and the same reads as follows: “(6.) Cheque – A “cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. Explanation I – For the purposes of this section, the expressions - (a) “a cheque in the electronic form” means a cheque which contains the exact mirror image of a paper cheque, and is generated, written and signed in a secure system ensuring the minimum safety standards with the use of digital signature (with or without biometrics signature) and asymmetric crypto system; (b) “a truncated cheque” means a cheque which is truncated during the course of a clearing cycle, either by the clearing house or by the bank whether paying or receiving payment, immediately on generation of an electronic image for transmission, substituting the further physical movement of the cheque in writing. Explanation II – For the purposes of this section, the expression “clearing house” means the clearing house managed by the Reserve Bank of India or a clearing house recognised as such by the Reserve Bank of India.” 28. A cheque is an order by the drawer on his own agent, the bank, for payment of a certain sum of money to the bearer or order of the person in whose favour the cheque is drawn. Undoubtedly, a cheque is different from a draft. In the instant case on hand, the sum of Rs.20,000/- paid by the Respondent/Plaintiff to the Appellant/Defendant on 10.08.1989 is undoubtedly a bill of exchange and in this regard, Section 5 of the Indian Evidence Act under the caption Bill of Exchange enjoins has follows: “(5.) “Bill of Exchange” - A “bill of exchange” is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument. A promise or order to pay is not “conditional”,within the meaning of this section and section 4, by reason of the time for payment of the amount or any instalment thereof being expressed to be on the lapse of a certain period after the occurrence of a specified event which, according to the ordinary expectation of mankind, is certain to happen, although the time of its happening may be uncertain. The sum payable may be “certain”, within the meaning of this section and section 4, although it includes future interest or is payable at an indicated rate of exchange, or is according to the course of exchange, and although, the instrument provides that, on default of payment of an instalment, the balance unpaid shall become due. The person to whom it is clear that the direction is given or that payment is to be made may be a “certain person”, within the meaning of this section and section 4, although he is mis-named or designated by description only.” 29. It cannot be gainsaid that a bill of exchange is one that it contains an order to accept or to pay and that acceptor should accept it; in the absence of such a direction to pay, the document will not be a bill of exchange or a hundi as per decision SinhaV. Bidhu Bhasan A.I.R. 1955 Cal. 562. 30. A cheque is a Bill of Exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque in the electronic form as per Section 6 A of the Negotiable Instruments Act. 31. A cheque being a Bill of Exchange must possess all the essentials of a bill and must satisfy the requirements of Section 6 of the Negotiable Instruments Act. However, a cheque is a peculiar sort of instrument in many respects resembling a Bill of Exchange, but in some aspects entirely different. A cheque does not require acceptance in the ordinary course, apart from prompt payment. It is presented for payment only. A cheque is not intended for circulation, it is issued for immediate payment. Further, it is not entitled to grace days. It is like an appropriation of what is stated as ready money in the hands of the banker. A cheque is always payable on demand. But a Bill of Exchange can be made after a fixed period. 32. In KedarNath V. Dinobandhu Saha inAIR 1916 Calcutta 580 it is held that “if a cheque is delivered by means of payment and is received as such, it operates as a payment.” 33. A Bill is dishonoured by non acceptance, but this is not the case in a cheque. A Bill at first is presented for acceptance unless it is a Bill on demand. 34. A Bill is dishonoured by non acceptance, but this is not the case in a cheque. A Bill at first is presented for acceptance unless it is a Bill on demand. 34. In regard to the money being paid under a cheque viz., bill of exchange, the burden is on the Respondent/Plaintiff. However, it is open to the Appellant/Defendant to rebut the presumption either through the facts and circumstances of the case projected by him or even by means of an adverse inference to be drawn as per the Indian Evidence Act, 1872. The burden of proof as per Section 101 of Indian Evidence Act is always not static. When a Respondent/Plaintiff has discharged his early burden to prove his case, then, the pendulum swings on the side of the Appellant/Defendant to project or prove his case to the subjective satisfaction of the Court. In the instant case, it cannot be said that the 1st Appellate Court has erroneously cast the burden of proof on the Appellant/Defendant, contrary to the provisions of Section 101 of the Indian Evidence Act. Per contra, it is held by this Court that the 1st Appellate Court has not erroneously cast the burden of proof on the Appellant/ Defendant and the 1st substantial question of law is answered against the Appellant/Defendant. 35. There cannot be any particular forms of Books of Accounts. If the Books of Accounts are regularly and ordinarily kept in the course of day-to-day business transaction, then it can be safely relied upon. 36. Coming to the aspect of the plea that the 1st Appellate Court has committed a grave error in arriving at a conclusion that a mere entry in the Pass Book would be sufficient proof to show the payment made by the Respondent/Plaintiff to the Appellant/Defendant without production of the original cheque, etc., it is to be pointed out that both the parties before the trial Court have not made any endeavour to produce the cheque dated 10.08.1989 for Rs.20,000/-issued by the Respondent/Plaintiff to and in favour of the Appellant/Defendant. Nothing prevented the Appellant/Defendant to summon the cheque in issue dated 10.08.1989 for Rs.20,000/-before the trial Court. Nothing prevented the Appellant/Defendant to summon the cheque in issue dated 10.08.1989 for Rs.20,000/-before the trial Court. Instead, the Respondent/Plaintiff has produced his savings bank pass book account No.17389 in L.F.No.54/150 and Ex.A.4 is the entry from the concerned book, which shows that a sum of Rs.20,000/- has been encashed by the Appellant/Defendant from and out of the Respondent/Plaintiffs bank account. Infact, the said sum of Rs.20,000/- has been entered as debit entry in Ex.A.4 pass book and the balance as on 10.08.1989 is shown as Rs.71,079.80p. Even in the absence of production of original cheque, in the present case, through Ex.A.4, savings bank pass book entry, the Respondent/Plaintiff has established to the satisfaction of this Court that the Appellant/Defendant has drawn a sum of Rs.20,000/-on 10.08.1989 and by no stretch of imagination, it can be said that the 1st Appellate Court has committed an error in arriving at a conclusion that mere entry in the pass book would be sufficient to prove the payment by the Respondent/Plaintiff to the Appellant/Defendant without production of original instrument, etc. Under the Bankers Evidence Act, if running accounts are maintained by a party/person/Firm/Company and if those accounts are of ordinary, regular course of routine business, it cannot be doubted. The veracity of the same cannot be doubted by any means. Ex.A.4 savings bank pass book entry for the Appellant/Defendant receiving a sum of Rs.20,000/-on 10.08.1989 is quite admissible under the Bankers Books of Evidence Act and even in the absence of marking or production of original cheque or bill of exchange, Ex.A.4 entry can be safely relied upon and there is no infirmity or illegality committed by the 1st Appellate Court in placing reliance on Ex.A.4 entry and accordingly, it is held by this Court that Ex.A.4 pass book entry shows that the Appellant/Defendant has received a sum of Rs.20,000/- from the Respondent/Plaintiff and the 2nd substantial question of law is so answered against the Appellant/Defendant. 37. 37. Dealing with the last substantial question of law that the 1st Appellate Court is not correct in view that the bearer cheque is a negotiable instrument in view of the fact that the original has not been produced before the trial Court, it is to be pointed out that as per Section 6 of the Negotiable Instruments Act, a cheque for Rs.20,000/-dated 10.08.1989 issued by the Respondent/Plaintiff to and in favour of the Appellant/Defendant is a bill of exchange and further, the said cheque is also conforming to the tenor in writing containing an unconditional order signed by the maker directing a certain person to pay certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument and viewed in that perspective, the cheque is a negotiable instrument viz., bill of exchange as per Negotiable Instruments Act, 1881 and accordingly, the 3rd substantial question of law is answered against the Appellant/Defendant. 38. Though, it is the case of the Respondent/Plaintiff that the Appellant/Defendant has agreed to pay the sum of Rs.20,000/-received by him through cheque dated 10.08.1989 from him together with interest at 18% per annum and notwithstanding the fact that the Respondent/Plaintiff has come out with a plea that the Appellant/Defendant has agreed to pay the said sum with interest at 18% per annum from the evidence of P.W.1 and other available materials on record, this Court is not in a position to accept the version projected by the Respondent/Plaintiff that the Appellant/Defendant has agreed to pay the interest at 18% per annum. Therefore, this Court holds that the Respondent/Plaintiff has not proved to the satisfaction of this Court that the Appellant/Defendant has agreed to pay the sum of Rs.20,000/-with interest at 18% per annum. However, this Court holds that the Appellant/ Defendant is liable to pay the sum of Rs.20,000/- from 10.08.1989 at interest 12% per annum (being a reasonable rate) till the date of passing of the decree and thereafter, to pay subsequent interest at 6% per annum from the date of decree till the date of payment with proportionate costs. 39. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. The Judgment and decree of the 1st Appellate Court in A.S.No.158 of 1996 dated 04.02.1997 are confirmed by this Court for the reasons assigned in this Appeal. 39. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. The Judgment and decree of the 1st Appellate Court in A.S.No.158 of 1996 dated 04.02.1997 are confirmed by this Court for the reasons assigned in this Appeal. Consequently, the connected civil miscellaneous petition is closed. 40. The Appellant/Defendant is directed to pay the sum of Rs.20,000/- from 10.08.1989 at interest 12% per annum (being a reasonable rate) till the date of passing of the decree and thereafter, to pay subsequent interest at 6% per annum from the date of decree till the date of payment with proportionate costs. 41. The Learned Counsel for the Appellant/Defendant informs this Court that the entire decree amount has been deposited by the Appellant/ Defendant to the credit of O.S.No.8030 of 1998 on the file of the Learned V Assistant City Civil Judge, Madras as per the order of this Court in C.M.P.No.18882 of 1998 dated 16.09.1999 and further, in C.M.P.No.357 of 2000, the Respondent/Plaintiff has been permitted to withdraw one half of the decree amount deposited to the credit of O.S.No.8030 of 1998 on the file of the Learned V Assistant City Civil Judge, Madras. It is open to the Respondent/ Plaintiff to withdraw the amount lying in the credit of O.S.No.8030 of 1998 on the file of the Learned V Assistant City Civil Judge, Madras by means of filing necessary payment out application as per Rules 161, 162 and 163 of the Civil Rules of Practice and seek appropriate remedy in the manner known to law.