JUDGMENT : Sureshwar Thakur, J. 1. The plaintiff/respondent herein instituted, a suit against the defendant, for recovery of Rs. 1,00,000/- along with interest @ 6% per annum. The suit of the plaintiff stood decreed by the learned trial Court. In an appeal carried therefrom, by the aggrieved defendant, before the learned First Appellate Court, the latter Court dismissed the appeal of the defendant. The defendant standing aggrieved by the impugned verdict, hence, concerts to assail it, by preferring an appeal therefrom before this Court. 2. Briefly stated the facts of the case are that the plaintiff instituted a suit for recovery of Rs. 1,00,000/- along with interest with the pleadings that he was owner in possession of orchard having fruit bearing apple plants at Neri. The plaintiff sold apple crop in the year 2005 to the defendant. The defendant purchased 350 apple boxes and approximately 130 bag for a sum of Rs. 1,00,000/- on 30.09.2005. In discharge of this lawful liability and to pay price of apples, the defendant issued cheque No. 904502, of 30.09.2005 drawn at State Bank of India, Kali Bari, Shimla, amounting to Rs. 1,00,000/-. The aforesaid cheque was presented by the plaintiff with his bankers. The cheque was dishonoured for want of sufficient funds and was returned along with intimation memos dated 11.10.2005 and 15.11.2005. The plaintiff requested the defendant to make payment of Rs. 1,00,000/- by issuing notice dated 23.11.2005, however, despite receipt of notice, the defendant failed to make the paying. It has been further pleaded that the plaintiff preferred a criminal complaint under Section 138 of the N.I. Act, which was also pending before the learned Judicial Magistrate 1st Class, Court No. 4, Shimla. 3. The defendant contested the suit and filed written statement. The defendant denied that he had purchased boxes of apple for a sum of Rs. 1,00,000/- from the plaintiff. The defendant pleaded that he cheque was issued to one Sh. Inder Singh, son of Dharam Dass, who had lost the cheque while travelling in a bus. The matter was reported to the police vide Rapat No. 6, dated 23.10.2005 at Police Post, Deha. It was denied that there was any subsisting and existing liability of the defendant to the plaintiff. The defendant admitted that complaint under Section 138 of the Negotiable Instrument Act was pending before the learned Judicial Magistrate 1st Class, Shimla. 4. The matter was reported to the police vide Rapat No. 6, dated 23.10.2005 at Police Post, Deha. It was denied that there was any subsisting and existing liability of the defendant to the plaintiff. The defendant admitted that complaint under Section 138 of the Negotiable Instrument Act was pending before the learned Judicial Magistrate 1st Class, Shimla. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for the recovery of Rs. 1,00,000/- along with interest @ 6% on the basis of the cheque dated 30.09.2005, as prayed for? OPP. 2. Whether the defendant has not issued the cheque No. 904502 dated 30.09.2005, as alleged? OPD 3. Whether the plaintiff has no cause of action, as alleged? OPD 4. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by the defendant/appellant herein before the learned First Appellate Court, the first Appellate Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 6. Now the defendant/appellant herein has instituted the instant Regular Second Appeal before this Court, for assailing the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 23.05.2016, this Court, admitted the appeal instituted by the defendant/appellant against the impugned judgment and decree, on the hereinafter extracted substantial questions of law:- 1. Whether on account of misappreciation of the pleadings and misreading of the oral as well as documentary evidence available on record the findings recorded by both Courts below are erroneous and as such the judgment and decree impugned in the main appeal being perverse is vitiated and not legally sustainable? Substantial question of Law No. 1: 7. Both the learned Courts below, had decreed the suit of the plaintiff, wherein he had staked a claim qua his entitlement to recover a sum of Rs. 1,00,000/- from the defendant, sum whereof constituted the price of 350 apple boxes and of 130 gunny bags of apples, as stood respectively purchased from him by the defendant. Both the learned Courts below, had decreed the suit of the plaintiff, wherein he had staked a claim qua his entitlement to recover a sum of Rs. 1,00,000/- from the defendant, sum whereof constituted the price of 350 apple boxes and of 130 gunny bags of apples, as stood respectively purchased from him by the defendant. In respect of the aforesaid transaction, Ex.PW1/A stood issued to him, cheque whereof, as evident from memo comprised in Ex.PW1/C, on its presentation before the bank concerned, stood, for deficient funds in the account of the defendant, hence, refused to be honoured by the bank concerned. Both the learned Courts below, had placed implicit reliance upon Ex.PW2/B, exhibit whereof, comprises a verdict recorded by the learned Judicial Magistrate 1st Class (1), Shimla, in the apposite Criminal Complaint No. 9/3 of 2006, whereunder, an order of conviction stood pronounced upon the appellant/defendant, for his committing an offence punishable under Section 138 of the Negotiable Instruments Act, Consequently, on anvil thereof, they concurrently recorded a conclusion, qua ipso facto, especially for want of adduction of sufficient evidence, standing adduced by the defendant, for belying the presumption held in Section 139 of the Negotiable Instruments Act, provisions whereof stand extracted hereinafter, hence the statutory presumption qua in the plaintiff holding it, his receiving it from its signatory, in discharge of a liability arising out of a commercial transaction entered into inter se both, getting aroused. The leveraging of the aforesaid statutory presumption qua the plaintiff, is also galvanized, when reiteratedly no evidence for rebutting the aforesaid presumption, stood adduced by the defendant. Provisions of Section 139 of the Negotiable Instruments Act read as under:- “139. Presumption in favour of the holder.-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debut or other liability.” 8. In drawing vis-a-vis the plaintiff, the aforesaid presumption constituted under Section 139 of the Negotiable Instrument Act, the learned Courts below, hence, dispelled the vigour of the defence reared by the defendant, qua his issuing Ex.PW1/A qua DW-4, whereas, the latter misplacing it, in a bus. In drawing vis-a-vis the plaintiff, the aforesaid presumption constituted under Section 139 of the Negotiable Instrument Act, the learned Courts below, hence, dispelled the vigour of the defence reared by the defendant, qua his issuing Ex.PW1/A qua DW-4, whereas, the latter misplacing it, in a bus. Also both the learned Courts below dispelled, the vigour of an affidavit sworn by DW-4, affidavit whereof stands borne on Ex.DW2/A and is sworn on 23.10.2005, besides displaced the vigour of recitals borne in an application comprised in Mark-X, application whereof was transmitted on 24.10.2005 by DW-4 to the bank concerned. Both the aforesaid documents tendered into evidence by DW-4, Inder Singh, respectively echo qua his misplacing Ex.PW1/A also qua its standing issued to him by the defendant besides articulate an intimation purveyed by DW-4, to the bankers concerned, whereat the defendant/appellant held his account, to stop payment of the amount borne in Ex.PW1/A. However, previous thereto, on presentation of Ex.PW1/A, the bank concerned under memo comprised in Ex.PW1/C, refused, for deficient funds in the account of defendant, hence, honour it. The reason aforesaid stood anchored, on anvil, of Ex.DW2/A and Mark “X” being prepared subsequent, to a intimation purveyed by the Bank concerned, to the plaintiff qua dishonour of cheque held in Ex.PW1/C, whereupon, an inference stood erected qua DW-4 in collusion with the defendant/appellant herein, hence, fabricating the aforesaid documents. The vigour of the aforesaid reason, has to be tested not in isolation nor fragmentarily rather has to be construed in conjunction with the testimony of the plaintiff, who while testifying in Civil Suit No. 111/1 of 2008, as PW-1 accepts in his cross-examination, the veracity of portions 'A to A' existing in Ex. D-1, exhibit whereof comprises, his statement recorded, on 19.06.2008 in Civil Suit No. 144/1 of 2005, titled as Vinod Bhota versus Inder Singh, hence, an allusion thereto is necessitated. An advertence to portion 'A to A' of Ext. D-1, unravels qua the plaintiff, articulating therein, of his orchard standing located at a low height also he makes a communication therein, qua his apple crop being ready for harvesting by the end of July. He has also bespoken therein qua the apples, borne on the apple trees falling therefrom onto the ground, given the plaintiff in the aforesaid civil suit, resiling from his promise of purchasing his apple crop. The aforesaid communications, occurring in Ex. He has also bespoken therein qua the apples, borne on the apple trees falling therefrom onto the ground, given the plaintiff in the aforesaid civil suit, resiling from his promise of purchasing his apple crop. The aforesaid communications, occurring in Ex. D-1, veracity whereof stands accepted by the plaintiff, emphatically underline the factum of the plaintiff, selling his “standing” apple crop to one Vinod Kumar Bhota also the relevant portion of the aforesaid statement of the plaintiff, Inder Singh, comprised in Ex. D-1, emphasizes with vividity, the trite factum of his apple crop dropping onto the ground, mishap whereof arising from Vinod Kumar Bhota, where to whom the plaintiff had agreed to sell his apple crop, resiling from his promise. The further effect of the aforesaid emphatic underscorings, unfolded in Ex. D-1, is qua the apt deposition of the plaintiff, in the instant civil suit, wherein, he feigns his ignorance qua his selling his apple crop to one Vinod Kumar Bhota, hence, standing belied also his deposition recorded in the extant suit qua his not selling his apple produce to one Vinod Kumar Bhotta also standing imbued with a vice of falsehood, wherefrom, the concomitant sequel, is qua the plaintiff/respondent herein, contriving the factum of his selling, his “packed” apple crop, to the defendant/appellant herein. Furthermore, in the extant suit, the plaintiff/respondent has echoed qua his selling his “packed” apple produce on 30.09.2005, to defendant/appellant herein, factum whereof, apparently stands contradicted besides stands imbued with an inherent vice of falsehood, given the evident display in Ex. D-1, of his orchard standing located at a low height, besides by occurrence of echoings therein, qua the apples reared in his orchard, ripening for plucking by the end of July. Significantly also with his in Ex. D-1, of his orchard standing located at a low height, besides by occurrence of echoings therein, qua the apples reared in his orchard, ripening for plucking by the end of July. Significantly also with his in Ex. D-1, deposing qua the apples reared in his apple orchard falling onto the ground, on one Vinod Kumar Bhota, refusing to honour his promise to purchase his apple produce, renders the purported sale of “packed” apple produce by the plaintiff to the defendant/appellant herein, belatedly on 30.09.2005, to be ipso facto contrived, “unless” evidence stood adduced by the plaintiff qua after his apple crop evidently falling onto the ground in the end of July, his thereafter picking up the fallen apples, evidence whereof stood comprised in his leading into the witness box, all the labourers deployed by him, to pick up the fallen apples also his leading into witness box, the work force employed by him to grade and pack them in apple boxes or in gunny bags. However, the aforesaid evidence remained un-adduced by the plaintiff, wherefrom it is apt to conclude, qua the apple crop reared in the orchard of the plaintiff, apple crop whereof, the plaintiff in Ex. D-1, acquiesces qua its falling onto the ground, hence, remaining unattended by the plaintiff or the apple crop hence perishing on the ground, corollary whereof, is qua the plaintiff, rearing a false claim against the defendant qua his belatedly on 30.09.2005, selling his apple produce to the defendant, in respect whereof the latter purportedly issued Ex.PW1/A. 9. Even though, exhibit Ex.DW2/A and Mark “X” stood prepared subsequently to dishonour of Ex.PW1/A also therefrom prima facie a derivative upsurges, qua in their preparation by DW-4, the latter conniving with the defendant, yet with the defendant establishing by leading into the witness box DW-4 qua hence his not rearing a fictitious identity of the latter also when knowledge with respect to misuse of Ex.PW1/A, would stand acquired by the plaintiff, besides by DW-4, only on its presentation, by the plaintiff before the banker concerned. Consequently, the mere factum of the belated tendering, of Ex. Consequently, the mere factum of the belated tendering, of Ex. DW2/A and Mark “X” by DW-4, cannot per se ipso facto, bely the defence of the defendant qua his neither holding any commercial transaction with the plaintiff nor his in discharge of his liability in respect thereto, issuing Ex.PW1/A qua the plaintiff nor thereupon, it was befitting for both the learned Courts below, to merely on anvil of a verdict pronounced by the learned Judicial Magistrate 1st Class (4), Shimla, verdict whereof stands comprised in Ex.PW2/B, to hence conclude qua the plaintiff, thereupon standing entitled to a decree for recovery of a sum of Rs. 1,00,000/- given no evidence standing adduced by the defendant, for eroding the tenacity of the presumption held in Section 139 of the Negotiable Instruments Act, qua the holding of Ex.PW1/A by the plaintiff/respondent herein, being amenable, to a construction qua thereupon, it standing issued by the defendant vis-a-vis the plaintiff, in discharge of his commercial (contractual) liability with respect to the plaintiff. Conspicuously, also when the deposition of the plaintiff embodied in Ex. D-1 belies the apposite statutory presumption, contrarily, also when Ex. D-1, portrays qua Ex.PW1/A warranting erection of an inference qua the plaintiff, selling his “standing” apple crop to one Vinod Bhota. In aftermath, for reasons aforesaid, the factum of his selling, his apple produce in apple cartons or gunny bags, to the defendant, stands negatived, rather it provides accelerated impetus, to the espousal of the defendant qua Ex.PW1/A, being not issued to the plaintiff rather its standing issued to DW-4, dehors Ex.DW2/A and Mark “X” standing delivered upon the bankers concerned, subsequent to the dishonour of Ex.PW1/A. Significantly also, when the fact of its standing misplaced besides standing misused by the plaintiff, would stand known to the plaintiff and to DW-4, only on its presentation, by the plaintiff, before the banker concerned. 10. Be that as it may, the plaintiff had relied upon the deposition of one Ved Prakash, for proving the pleaded fact qua DW Ved Prakash, carrying in his truck gunny bags, holding therewithin his apple produce also for succoring his averment qua a commercial transaction inter se him and the defendant, occurring in his presence. 10. Be that as it may, the plaintiff had relied upon the deposition of one Ved Prakash, for proving the pleaded fact qua DW Ved Prakash, carrying in his truck gunny bags, holding therewithin his apple produce also for succoring his averment qua a commercial transaction inter se him and the defendant, occurring in his presence. However, the entire effect of the deposition of DW-5, as held in his examination-in-chief, stand blunted, by his in his cross-examination, voicing his abysmal ignorance qua the nature of the commercial transaction entered inter se the plaintiff and the defendants also his feigning utter lack of knowledge qua the nature of the lis in respect whereto they stand engaged. DW-5 has also deposed, qua cartons of apples being carried in another truck/vehicle, vehicle whereof moved simultaneously along with his vehicle yet he feigned ignorance qua the identity of the other vehicle whereon cartons of apples stood transported, wherefrom an inference is erectable qua his, in collusion with the plaintiff, contriving the factum of the latter, transporting gunny bags carrying apples, in his truck also his inventing the factum of the other vehicle purportedly carrying carton/boxes of apple, moving simultaneously along with his vehicle, to their common destination. More so, he has been unable to place on record any receipt in personification of the freight defrayed to him by the defendant, hence, also his testification, holds no veracity. With his Court concluding qua DW-5 inventing the crucial factum probandum, of his in his truck/vehicle transporting, the gunny bags of apples, thereupon, when the effect of the pointed marked testimony of the plaintiff existing in Ex. D-1, is construed in tandem therewith, hence, capitalizes an inference qua the defendant succeeding in proving his defence, also his succeeding in dislodging the statutory presumption held in Section 139 of the Negotiable Instruments Act. 11. In summa, the reliance placed by both the learned Courts below upon the judgment of conviction recorded by the learned Judicial Magistrate 1st Class (4), Shimla in Cr. Complaint No. 9/3 of 2006 was inapt nor it was also apt for both the learned courts below, to thereupon ipso facto conclude qua the suit of the plaintiff warranting its standing decreed. 12. The above discussion unfolds the fact that the conclusions as arrived at by both the learned Courts below being not based upon a proper and mature appreciation of evidence on record. 12. The above discussion unfolds the fact that the conclusions as arrived at by both the learned Courts below being not based upon a proper and mature appreciation of evidence on record. While rendering their findings, both the learned Courts below have excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the defendant/appellant herein and against the plaintiff/respondent. 13. In view of the above discussion, the present Regular Second Appeal is allowed and the impugned judgments and decrees are quashed and set aside. In sequel, the suit of the plaintiff/respondent herein stands dismissed. All pending applications also stand disposed of. No order as to costs.