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2019 DIGILAW 1261 (KAR)

S. Manjunath v. Vijaya Shastry

2019-06-14

H.B.PRABHAKARA SASTRY

body2019
JUDGMENT : H.B. Prabhakara Sastry, J. The suit of the present appellant in his capacity as plaintiff filed before the Court of the XXXI Additional City Civil Judge, Bangalore City (CCH No.14) (hereinafter for brevity referred to as "Trial Court") for recovery of a sum of Rs.2,38,000/- together with costs and interest at the rate of Rs.2% per month there upon from the present respondents - defendants came to be dismissed by the Trial Court, by its impugned judgment and decree dated 12th November, 2009 passed in O.S.No.2625/2003. Challenging the said judgment, the plaintiff in the Court below has preferred this appeal. 2. The summary of the case of the plaintiff in the Trial Court was that, the first defendant is the wife, second defendant is the son and the third defendant is the daughter of late Sri. D.S. Shastry, who died on 03-02-2003, leaving behind the defendants as his legal heirs to succeed his estate and the defendants are in custody and possession of all the assets, both movable and immovable properties of deceased D.S. Shastry. The plaintiff has contended that late Sri. D.S. Shastry had borrowed a loan of a sum of Rs.1,50,000/- from him on 20-10-2000 and executed three On-Demand Promissory Notes, each for a sum of Rs.50,000/- in favour of the plaintiff, agreeing to repay the same with interest at the rate of Rs.2% per month. The deceased D.S. Shastry had also executed consideration receipts along with the Promissory Notes. However, the said Sri. D.S. Shastry did not repay the loan amount and the interest there upon inspite of repeated requests made by the plaintiff. Therefore, the plaintiff approached the said Sri. D.S. Shastry in the first week of January 2003 and requested him to make payment of the loan amount. At that time, Sri.D.S. Shastry issued three post-dated cheques bearing Nos.972939, 972940 and 972942, all dated 01-02-2003 for a sum of Rs.50,000/- each drawn in favour of the plaintiff. When those cheques were presented for encashment, they were returned with banker's endorsement 'funds insufficient'. The plaintiff has further contended that he also got issued legal notice dated 19-02-2003 to late Sri. D.S. Shastry calling upon him to pay the loan amount. The notice was returned. It is only thereafter the plaintiff came to know that Sri.D.S. Shastry was dead on 03-02-2003. The plaintiff has further contended that he also got issued legal notice dated 19-02-2003 to late Sri. D.S. Shastry calling upon him to pay the loan amount. The notice was returned. It is only thereafter the plaintiff came to know that Sri.D.S. Shastry was dead on 03-02-2003. Thereafter, the plaintiff issued one more legal notice to the defendants on 21-03-2003 calling upon them to pay the principal sum with interest. Since the defendants were in possession and custody of all the assets left by deceased Sri. D.S. Shastry and since the defendants did not repay the loan amount and also the interest, the plaintiff was constrained to file the present suit against them for recovery of money. 3. In response to the summons served upon them, the defendants who appeared through their counsel, have filed their Written Statement in the Trial Court contending that, the suit of the plaintiff was not maintainable. They denied that late Sri. D.S. Shastry had borrowed a sum of Rs.1,50,000/- from the plaintiff and had executed three Promissory Notes and consideration receipts. The defendants also denied that the deceased Sri. D.S. Shastry had agreed to pay interest and also issued three post-dated cheques to the plaintiff. They pleaded their ignorance that those three cheques were presented for realisation and the same came to be dishonoured, for which the plaintiff had issued a legal notice. The defendants further contended that deceased Sri.D.S. Shastry was working in the Commercial Department of Air Force Division of M/s. Hindustan Aeronautics Limited, Bangalore (hereinafter for brevity referred to as "M/s. HAL"). The plaintiff had been one of the regular supplier of rice and other items on regular basis to M/s. HAL. The plaintiff used to meet the said Sri.D.S. Shastry at M/s.HAL seeking official favours. The said Sri.D.S. Shastry being an honest and upright Officer, never entertained the plaintiff nor budged to the pressure tactics of the plaintiff. The defendants further contended that Sri.D.S. Shastry had the habit of keeping the signed blank cheques in his table drawer of his office. The plaintiff has lifted the cheques signed and kept by Sri.D.S. Shastry at his office with the connivance of the staff members who were hand-in-glove with the plaintiff and misused the same in order to take revenge against Sri.D.S. Shastry. The plaintiff has lifted the cheques signed and kept by Sri.D.S. Shastry at his office with the connivance of the staff members who were hand-in-glove with the plaintiff and misused the same in order to take revenge against Sri.D.S. Shastry. It is only to harass the defendants after the demise of Sri.D.S. Shastry, the plaintiff has instituted a false suit against them. With this, they prayed for dismissing the suit with costs. 4. Based on the pleadings of the parties, the Trial Court framed the following issues: "(1) Whether the plaintiff proves that the deceased D.S. Shastry has borrowed a loan of Rs.1,50,000/- on 20.10.2000 as alleged? (2) Whether the plaintiff proves that the deceased D.S. Shastry agreed to pay interest at 2% per month? (3) Whether the defendant proves that the plaintiff had taken away signed cheque of D.S. Shastry from his office table drawer and later created those documents as contended in para.8 of the written statement? (4) Whether the plaintiff is entitled for interest at 2% per month? (5) Whether the plaintiff is entitled to recover the suit claim? (6) What decree or order?" In order to prove his case, the plaintiff got himself examined as PW-1 and got marked documents from Exhibits P-1 to P-17. On behalf of the defendants, the defendant No.1 - Smt. D. Vijaya Shastry, wife of late Sri.D.S. Shastry examined herself as DW-1 and examined one Sri. T.B. Manjunath and Sri. V.R. Ramamurthy as DW-2 and DW-3 respectively. she also got marked documents from Exhibits D-1 to D-5(n). 5. After hearing both side, the Trial Court by its impugned judgment and decree dated 12-11-2009 dismissed the suit of the plaintiff. It is against the said judgment and decree, the plaintiff has preferred the present appeal. 6. Lower Court records were called for and the same are placed before this Court. 7. Heard the arguments of the learned counsel from both side and perused the material placed before this Court including the memorandum of appeal and the impugned judgment. 8. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively. 9. Learned counsel for the plaintiff in his argument submitted that, the execution of the Promissory Notes by the deceased Sri.D.S. Shastry has been admitted by the defendants. 8. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively. 9. Learned counsel for the plaintiff in his argument submitted that, the execution of the Promissory Notes by the deceased Sri.D.S. Shastry has been admitted by the defendants. Further issuance of three cheques on the date the loan was taken has also been admitted by the defendants in the cross-examination of PW-1. Further the contention of the defendants that those three cheques were taken away by the plaintiff from the table drawer of the office of the deceased Sri.D.S. Shastry, has not been proved. Learned counsel for the plaintiff also submitted that presumption under Section 118 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as "N.I. Act") acts in favour of the plaintiff and that the plaintiff being in possession of the Negotiable Instruments can fill the blank Negotiable Instruments. Since the defendants have admittedly inherited to the properties of the deceased Sri. D.S. Shastry, they are liable to clear-off the loans availed by the deceased Sri. D.S. Shastry. 10. Per contra, learned counsel for the defendants in his arguments submitted that, the legal notice at Ex.P-13 was issued after the death of Sri.D.S. Shastry, even after knowing that Sri.D.S. Shastry was dead. This shows the conduct of the plaintiff that his conduct was inhumane. Learned counsel also submitted that the said legal notice at Ex.P-13 does not mention the date of the loan transaction. Had the deceased obtained loan on 20-10-2000, nothing had prevented the plaintiff to have mentioned the said date in his first legal notice sent to the defendants. This also gives rise to a doubt with respect to the alleged loan transaction between the plaintiff and the deceased Sri.D.S. Shastry. Learned counsel further submitted that the witnesses to Promissory Notes at Exs.P-1 to P-3 have not been examined. Signatures on the said Promissory Notes and execution of the Promissory Notes since have been denied by the defendants, the plaintiff ought to have examined the witnesses to the said Promissory Notes. As such, the execution of Promissory Notes is doubtful. Therefore, the presumption under Section 118 of the N.I. Act would not operate in favour of the plaintiff. In support of his argument, learned counsel for plaintiff/appellant relied upon a judgment of this Court in the case of Saftarsab Vs. As such, the execution of Promissory Notes is doubtful. Therefore, the presumption under Section 118 of the N.I. Act would not operate in favour of the plaintiff. In support of his argument, learned counsel for plaintiff/appellant relied upon a judgment of this Court in the case of Saftarsab Vs. B. Allaiah @ Allappaa, (2005) ILR(Kar) 2911 . The said judgment would be referred to at a later stage in this judgment. 11. After hearing the learned counsel from both side, the only point that arise for my consideration is: Whether the plaintiff proves that the judgment and decree under appeal deserves its setting aside and his suit deserves to be decreed as prayed? The plaintiff who got himself examined as PW-1 in his Examination-in-chief in the form of Affidavit evidence, has iterated the contentions taken up by him in his plaint. In support of his evidence, he got marked three Promissory Notes, all dated 20-10-2000 at Exs.P-1 to P-3 and three consideration receipts from Exs.P-4 to P-6. He also got marked three returned cheques said to have been issued to him by the deceased Sri.D.S. Shastry at Exs.P-7 to P-9 and three Bank endorsements at Exs.P-10 to P-12. He got marked a copy of legal notice dated 19-02-2003 said to have been sent on his behalf to deceased Sri.D.S. Shastry, at Ex.P-13. The returned postal cover said to have been containing the said legal notice and addressed to the deceased Sri.D.S. Shastry has been marked at Ex.P-14. Office copy of his second legal notice dated 21-03-2003 said to have been sent to the defendants has been marked at Ex.P-15. Reply dated 01-04-2003 sent to the said notice by the defendants is marked at Ex.P-16. The Encumbrance Certificate of the property said to have been standing in the name of deceased Sri.D.S. Shastry has been marked at Ex.P-17. 12. From the side of the defendants, three photo copies of the cheques bearing Nos.972940, 972939 and 972942 drawn on State Bank of India, HAL Branch, Bengaluru from the account of the deceased Sri.D.S. Shastry and showing the amount of Rs.50,000/- each are got marked at Exs.D-1, D-2 and D-3 respectively. A Bank Pass-book of deceased Sri.D.S. Shastry with the same Bank is marked at Ex.DR. A Bank Pass-book of deceased Sri.D.S. Shastry with the same Bank is marked at Ex.DR. 4 and relevant entries therein at Exs.D-4(a) and D-4(b), blank Cheque Book of deceased D.S.Shastry is marked at Ex.D-5 and signatures of deceased D.S. Shastry in those cheque leaves were marked at Exs.D-5(a) to D- 5(n). 13. It is the case of the plaintiff that the deceased Sri. D.S. Shastry had borrowed a sum of Rs.1,50,000/- from him on 20-10-2000 and executed three On- Demand Promissory Notes, each for a sum of Rs.50,000/- in his favour, agreeing to repay the said sum together with interest at the rate of Rs.2% per month. It is also his case that being the Proprietor of one M/s. Sri. Venkateshwara Traders, he used to supply provisions to M/s. HAL on contract basis, i.e. through public tenders. Late Sri. D.S. Shastry was also working in the same Company, i.e. M/s. HAL. 14. The plaintiff/appellant's counsel in order to show that late Sri.D.S. Shastry had executed three On- Demand Promissory Notes, has mainly relied upon Exs.P-1 to P-3 and a portion of the cross-examination of PW-1 wherein it is shown that, it was suggested to PW-1 that the signatures found on those Promissory Notes were that of late Sri.D.S. Shastry. The relevant portion of the cross- examination of PW-1 is reproduced herein below:- "It is true that excepting signatures on On-Demand Promissory Note Ex.P.1 and consideration receipt Ex.P.4 which are vide Exs.P.1(a) and P.4(a), remaining recitals are not in his handwritings." "Like wise, excepting signatures vide Exs. P.2(a) and P.5(a) to be found on Exs.P.2 and P.5 being D.P. Note and consideration receipt and unexhibited signatures on these documents, remaining recitals are not in his handwritings. So also signatures vide Exs.P.1(a) and Ex.P.6(a) to be found on Ex.P.3 and P.6 being D.P. note and consideration receipt as well unexhibited signatures to be found on these two documents remaining recitals to be found on these documents are not in his handwritings." Similarly, from the appellant's side, it was also relied upon another portion of cross-examination of PW-1 to show that it was late Sri.D.S. Shastry himself who had issued the cheques at Exs.P-7 to P-9. The said portion of the cross-examination of PW-1 is reproduced herein below. The said portion of the cross-examination of PW-1 is reproduced herein below. "It is not true to suggest that on the date of receiving loan itself, the said deceased had given me three post-dated cheques." No doubt the above extracts in the cross- examination of the evidence of PW-1 may give an impression that three Promissory Notes and three cheques are shown to have been given by deceased Sri.D.S. Shastry to the plaintiff. However by picking up couple of stray sentences from the cross-examination of PW-1, it cannot be concluded that the plaintiff has proved his case. The entire evidence of PW-1 and also the evidence from the defendants' side have to be considered carefully. PW-1, nowhere in his Examination-in-chief has stated as to how he came in contact with late Sri.D.S. Shastry and under what circumstance he had given the alleged loan of a sum of Rs.1,50,000/- to him. On the contrary, in his cross-examination, at one place in paragraph No.6, the plaintiff as PW-1 has stated as below:- "One Sri. D.S. Shastry who is no more was not to come in contact with me during my transactions with HAL, while he was working as manager therein." However, he has denied a suggestion that he had no independent contact with him. The above statement of PW-1 would go to show that the witness himself has stated that he was not coming in contact with late Sri. D.S. Shastry. Therefore, firstly, how and under what circumstance, he lent the alleged sum of Rs.1,50,000/- to late Sri. D.S. Shastry has not been further clarified by the plaintiff. 15. Secondly, even though it is not mandatory that in a legal notice issued under Section 138 of N.I. Act, the date of alleged monetary transaction or loan is necessarily to be mentioned, still, when the payee of the cheque claims that the cheques were issued to him in return of consideration which he had given to the drawer of the instrument, then, generally and naturally, it is expected of the payee of the instrument to have mentioned in his legal notice as to when the consideration from his side was passed on to the drawer of the instrument. Admittedly in the instant case, even though the plaintiff claims to have issued the first legal notice addressing it to late Sri.D.S. Shastry vide his notice dated 19-02-2003, but in the said notice he had not mentioned the date on which the said deceased Sri.D.S. Shastry was said to have availed the loan from him. In that regard, a specific admission has also been made by PW-1 in his cross-examination. Therefore, merely because the three Promissory Notes said to have contained the signatures of deceased Sri.D.S. Shastry, by that itself, it cannot be inferred that deceased Sri.D.S. Shastry had executed those three documents in favour of the plaintiff. It is also because of the fact that even after making suggestion to PW-1 in his cross-examination suggesting to the witness that the On-Demand Promissory Notes and consideration receipts bear the signatures of late Sri.D.S. Shastry. However, thereafter it was specifically and categorically suggested to the very same witness (PW-1) that deceased Sri.D.S. Shastry had not executed those documents at Exs.P-1 to P-6 and that the plaintiff had created those documents. That means, even after admitting the signatures of late Sri.D.S. Shastry in Exs.P-1 to P-6, the defendants contended that those documents were not executed by the deceased Sri.D.S. Shastry. In fact, PW-1 in his very same cross-examination has also stated that except the signatures of late Sri.D.S. Shastry, the remaining recitals found on those documents were not in his handwritings. Therefore, when admittedly the recitals in the Promissory Notes and consideration receipts at Exs.P-1 to P-6 are not in the handwriting of late Sri.D.S. Shastry and also when it is not stated by the plaintiff/PW-1 as to how he was in acquaintance with late Sri.D.S. Shastry and under what circumstance the loan was granted to him, it was for the plaintiff to have examined the witnesses to the Promissory Notes to establish that those Promissory Notes were not executed by late Sri.D.S. Shastry in his favour. A mere say that late Sri.D.S. Shastry was in need of money for registration of a Sale Deed in his favour is not sufficient to hold that the circumstance under which the loan was granted has been established. It is because the said statement alleging the purpose for the loan has been categorically denied from the dependents' side in the cross-examination of PW-1. It is because the said statement alleging the purpose for the loan has been categorically denied from the dependents' side in the cross-examination of PW-1. Therefore, when a Negotiable Instrument is said to have been standing in the name of the beneficiary under it, in order to give the benefit of presumption to the holder of the said Negotiable Instrument with respect to the consideration mentioned in the said Negotiable Instrument under Section 118 of N.I. Act, it is necessary for the holder in due course/the plaintiff to prove that the said Negotiable Instrument was executed by its alleged executor who is late Sri.D.S. Shastry in the case. As soon as the execution is proved, a presumption under Section 118 of the N.I. Act in his favour(plaintiff) that the said instrument was made for consideration arises. A Co-ordinate Bench of this Court in Saftarsab's case (supra) in a similar circumstance and more particularly with respect to Section 118 of the N.I. Act, was pleased to observe that as per Section 118 of the N.I. Act, certain presumptions can be attached to a Negotiable Instrument until the contrary is proved. But before these presumptions can be drawn, the execution of the instrument must be proved. The burden would be on the maker of the instrument to prove the execution. The burden initially rests on the plaintiff who has to prove that the Promissory Note was executed by the defendant. As soon as the execution is proved, Section 118 of the N.I. Act imposes a duty on the Court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof on the defendant and the defendant may have to adduce evidence to prove that the Promissory Note was not supported by consideration and if he has adduced acceptable evidence, then the burden again shifts to the plaintiff and so on. 16. Thus in the instant case, though a suggestion was made to PW-1 in his cross-examination from the defendants' side that the Promissory Notes and consideration receipts at Exs.P-1 to P-6 bear the signatures of the deceased Sri.D.S. Shastry, by mere said suggestion itself, it cannot be deduced that those documents were executed by Sri.D.S. Shastry in return for a consideration. Thus in the instant case, though a suggestion was made to PW-1 in his cross-examination from the defendants' side that the Promissory Notes and consideration receipts at Exs.P-1 to P-6 bear the signatures of the deceased Sri.D.S. Shastry, by mere said suggestion itself, it cannot be deduced that those documents were executed by Sri.D.S. Shastry in return for a consideration. As already observed, the defendants have categorically denied the execution of all those documents and it was also suggested to PW-1 in his cross-examination that those documents were not executed by late Sri.D.S. Shastry. Interestingly, in the cross-examination of DW-1 - Smt. D. Vijaya Shastry, who is the wife of said late Sri.D.S. Shastry, a statement has come out which reads as below:- "Now I see Exhibits P-1(a), P-4(a), P-2(a), P-5(a), P-3(a) and P-6(a) and they are not the signatures of my deceased husband Sri.D.S. Shastry, as suggested. "It is not true to suggest that though the said signatures are of my deceased husband, I have denied the same falsely." The said statements would go to show that even from the plaintiff's side, a suggestion was made to the witness who is none lese than the wife of the deceased Sri. D.S. Shastry that the signatures found on the Promissory Notes and consideration receipts were not of said late Sri.D.S. Shastry. In such a situation, when the defendants have denied the execution of the Promissory Notes and consideration receipts by late Sri.D.S. Shastry and also when in fact the plaintiff himself has suggested to DW-1 that those signatures in those documents were not that of late Sri.D.S. Shastry, then, it was further necessitated for the plaintiff to have examined any of the witnesses to those Promissory Notes and consideration receipts to prove the execution of those documents by late Sri.D.S. Shastry in favour of the plaintiff. Admittedly, the plaintiff has not put any effort in that regard. Even though the witnesses to the Promissory Notes and consideration receipts were available to him, for the reasons best known to him, the plaintiff has not chosen to examine any of them. This further creates a doubt in the case of the plaintiff. 17. It is also the case of the plaintiff in the Trial Court both in his pleadings as well in his evidence as PW-1 that when he approached late Sri. This further creates a doubt in the case of the plaintiff. 17. It is also the case of the plaintiff in the Trial Court both in his pleadings as well in his evidence as PW-1 that when he approached late Sri. D.S. Shastry and requested him for the repayment of the loan amount together with interest there upon, the said Sri. D.S. Shastry issued him three post dated cheques each for a sum of Rs.50,000/- and assured him that those cheques can be encashed by presenting them for realisation. Accordingly, he presented those three cheques which returned dishonoured with the banker's endorsement as 'funds insufficient'. In that connection, he got issued a legal notice to the said Sri.D.S. Shastry. A notice sent through 'Registered Post Acknowledgement Due' was returned to the sender with a postal shara "addressee deceased". After enquiry, he came to know that the said Sri.D.S. Shastry had died on 03-02-2003 in Bangalore City and that the defendants are the legal heirs of deceased Sri.D.S. Shastry. As such, he got issued another legal notice dated 21-03-2003 to the defendants calling upon them to pay the cheque amounts. 18. The defendants denied the same both in their written statement as well in the cross-examination of PW-1. According to defendants deceased Sri.D.S. Shastry had the habit of keeping his Cheque Book, Pass Book etc. in the drawer of the table of his office and used to keep the blank cheques duly signed. The plaintiff had lifted the blank cheques signed and kept by the deceased Sri.D.S. Shastry in the drawer of the table of his office with the connivance of the staff. In the cross-examination of PW-1 the defendants got produced Exs.D-1, D-2 and D-3 said to be the photo copies of those three cheques produced by the plaintiff as Exs.P-7 to P-9. However, Exs.D-1, D-2 and D-3 were shown to have been duly signed by the drawer and filled only with the amount without mentioning the name of the drawee and the date of the cheque therein. The suggestion made to PW-1 that he had managed to obtain three signed blank cheques vide Exs.P-7 to P-9 from the custody of the deceased Sri.D.S. Shastry between December 2000 and 2001 was not admitted as true by him. The suggestion made to PW-1 that he had managed to obtain three signed blank cheques vide Exs.P-7 to P-9 from the custody of the deceased Sri.D.S. Shastry between December 2000 and 2001 was not admitted as true by him. It was attempted to elicit from PW-1 in his cross-examination that on 03-02-2003 which was the date of death of Sri.D.S. Shastry the plaintiff also had visited their house and on the very next day, i.e. on 04-02-2003, he purposefully filled-up those three cheques at Exs.P-7 to P-9 and presented the same for their encashment to the Bank. It was also suggested to this witness (PW-1) that, earlier, he had shown them the photo copies of the blank cheques at Exs.P-7 to P-9 on 05-02-2003 and shown those cheques once again, however, duly filled and threatened them and demanded money from them. The witness has denied the same and stated that till he sent the legal notice under Section 138 of N.I. Act, he did not know about the death of Sri.D.S. Shastry. 19. The evidence of DW-2 and DW-3 who claim to be the persons known to Sri.D.S. Shastry shows that on 03-02-2003, when Sri.D.S. Shastry passed away, both DW-2 and DW-3 had visited the house of the deceased and at that time, even the plaintiff had also been there and they saw the plaintiff in the house of the deceased Sri.D.S. Shastry. Nothing could be elicited in the cross-examination of those two witnesses to disbelieve their evidence. Merely because both DW-2 and DW-3 were business competitors, by that itself, it cannot be inferred that they had any rivalry with PW-1, as such, their evidence is not trustworthy. The said evidence of DW-2 and DW-3 would go to show that as on the date of death of Sri.D.S. Shastry, i.e. on 03-02-2003 itself, the plaintiff also had visited their house and had talked to the inmates there. Thus, the conduct of the plaintiff that even after he knowing the death of Sri.D.S. Shastry on 03-02-2003, filling up the payee's name in the cheques and presenting them for their encashment to the Bank would go to show that his conduct was not of a reasonable person. Thus, the conduct of the plaintiff that even after he knowing the death of Sri.D.S. Shastry on 03-02-2003, filling up the payee's name in the cheques and presenting them for their encashment to the Bank would go to show that his conduct was not of a reasonable person. However, even if this is taken as proved that the cheques at Exs.P-7, P-8 and P-9 were in possession of the plaintiff, still, the plaintiff has failed to prove in his evidence that those three cheques were delivered to him by none else than the deceased Sri.D.S. Shastry. His statement that those cheques were given to him by the deceased Sri.D.S. Shastry since has been specifically denied from the defendants' side, it was required of the plaintiff to prove his statement by producing cogent and reliable evidence, which he has failed to do. As such, merely because the plaintiff is said to have been in possession of three cheques, by that itself, it cannot be inferred that the deceased Sri.D.S. Shastry had availed hand loan of a sum of Rs.1,50,000/- from him and apart from signing the Promissory Notes at a later stage, the deceased Sri.D.S. Shastry had also given the plaintiff those three cheques. Had really deceased Sri.D.S. Shastry issued those three cheques towards repayment of the said loan amount, then, being an employee of a large company and expected to have sufficient knowledge, he would have collected the Promissory Notes back. The non-collection of the Promissory Notes back by the deceased Sri.D.S. Shastry from the plaintiff, when considered in the light of the circumstance of the case, and more particularly in the light of the evidence of DWs. 1 to 3 would go to show that neither the Promissory Notes were executed by the deceased Sri.D.S. Shastry in favour of the plaintiff nor cheques at Exs.P-7 to P-9 were issued by deceased Sri.D.S. Shastry to the plaintiff. Further, the plaintiff being admittedly a businessman would have necessarily maintained some records apart from the alleged Promissory Notes to show that he had given a loan in a sum of Rs.1,50,000/- to the deceased Sri.D.S. Shastry. Admittedly, no other documents are produced by him to corroborate his evidence that deceased Sri.D.S. Shastry had executed Exs.P-1 to P-6 in his favour. Furthermore, the plaintiff is also not a money lender or a financier. Admittedly, no other documents are produced by him to corroborate his evidence that deceased Sri.D.S. Shastry had executed Exs.P-1 to P-6 in his favour. Furthermore, the plaintiff is also not a money lender or a financier. As already observed, the plaintiff also has failed to establish that deceased Sri.D.S. Shastry was a person acquainted with him and that the deceased Sri.D.S. Shastry was in need of money which compelled him to avail loan from the plaintiff. Thus, the plaintiff has failed to prove that the deceased Sri.D.S. Shastry had borrowed a sum of Rs.1,50,000/- from him on 20-10-2000 as loan and in that direction, he had executed Promissory Notes and consideration receipts at Exs.P-1 to P-6 and had also issued cheques at Exs.P-7 to P-9. The Trial Court after appreciating the evidence led before it and the materials placed before it in its proper perspective, since has arrived at a proper conclusion and dismissed the suit of the plaintiff, I do not find any error in it or any circumstance warranting interference in it. Accordingly, I proceed to pass the following: ORDER [i] The appeal is dismissed; [ii] The judgment and decree dated 12-11-2009 passed by the learned XXXI Additional City Civil Judge, Bangalore, (CCH-14) in O.S.No.2625/2003, is hereby confirmed; Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.