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2019 DIGILAW 1289 (KAR)

Puttamalla v. N. Shivanna

2019-06-17

H.B.PRABHAKARA SASTRY

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JUDGMENT : H.B.PRABHAKARA SASTRY, J. 1. The present appellant was the defendant in O.S.No.6274/1994 in the Court of the learned XXX Additional City Civil Judge, Bangalore City (hereinafter for brevity referred to as "Trial Court") which suit was instituted against him by the present respondent in his capacity as a plaintiff. The said suit was for recovery of a sum of Rs. 92,925/- along with future interest there upon at the rate of 18% per annum from the date of suit till its realisation. 2. The summary of the case of the plaintiff in the Trial Court was that, on 19-06-1994, the defendant borrowed a loan of a sum of Rs. 85,000/- from him for purchase of a Metador Van vehicle and had agreed to repay the said loan amount within three months along with interest. The defendant by adding another sum of Rs. 5,000/- towards interest to the loan amount, issued a post-dated cheque for a sum of Rs. 90,000/- on 12-08-1994 to the plaintiff. When the said cheque was presented for realisation, it came to be dishonoured. Despite issuance of legal notice since the defendant failed to repay the said loan amount together with interest there upon, the plaintiff instituted a suit against him for recovery of a sum of Rs. 92,925/- with interest there upon. 3. In response to the summons, the defendant appeared through his counsel in the Trial Court and filed his Written Statement wherein he denied the alleged loan transaction. He has also denied that he had issued any cheque to the plaintiff towards the alleged repayment of the loan. On the other hand, the defendant contended that the plaintiff was running several Chit Schemes wherein the defendant was a member and every member of the Chit was required to give a security for the total amount of the Chit to avoid himself becoming a defaulter after bidding and obtaining the Chit amount. It was in compliance with the said terms that the defendant had issued a blank cheque as a security to the plaintiff with the specific understanding that the cheque will be returned by the plaintiff after the said scheme is closed. However, even after closure of the Chit scheme, the plaintiff did not return the said cheque to him. It was in compliance with the said terms that the defendant had issued a blank cheque as a security to the plaintiff with the specific understanding that the cheque will be returned by the plaintiff after the said scheme is closed. However, even after closure of the Chit scheme, the plaintiff did not return the said cheque to him. On the other hand, the plaintiff has misused the said cheque and had instituted the present suit, seeking recovery of money from him. 4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration: "(1) Whether the plaintiff proves that the defendant borrowed a sum of Rs.85,000/- on 19-6-1994? (2) Whether the defendant proves that the cheque was not issued for Rs.90,000/- to the plaintiff? (3) Whether the defendant further proves that the plaintiff has been running several Chit schemes and the cheque was given as a security to the plaintiff for the Chit amount as he was a subscriber to the Chits? (4) Whether the plaintiff proves that he is entitled for a decree for a sum of Rs.92,925/- with Court cost and further interest? (5) What decree or order?" The plaintiff got examined himself as PW-1 and got produced and marked documents from Exs.P-1 to P-4. On behalf of the defendant, the defendant got himself examined as DW-1 and examined one Sri. Chenna Hanumaiah as DW-2 and produced and got marked documents from Exs.D-1 to D-15. 5. After hearing the learned counsels from both side, the Trial Court by its impugned judgment and decree dated 03-08-2004 decreed the suit of the plaintiff for a sum of Rs. 92,925/- with future interest at 6% per annum on the principal amount of Rs. 85,000/- from the date of suit till its realisation. Aggrieved by the said judgment and decree, the defendant in the Trial Court has preferred this appeal. 6. The Lower Court records were called for and the same are placed before this Court. 7. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively. 8. 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. 9. 7. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively. 8. 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. 9. After hearing the learned counsels appearing for both parties, the only point that arise for my consideration is: "Whether the defendant could able to establish that the judgment and decree under appeal deserves to be set aside and the suit of the plaintiff deserves to be dismissed?" The plaintiff in his evidence in Examination-inchief has reiterated the plaint averments. He has stated that both himself and defendant were serving in Kirloskar Electric Company Limited. On 19-06-1994, at the request of the defendant, the plaintiff had advanced him a loan of a sum of Rs. 85,000/- to enable him to purchase a Metador Van vehicle. The defendant, towards repayment of the said loan amount with interest there upon, had issued a post-dated cheque for a sum of Rs. 90,000/- to the plaintiff which was dated 12-08-1994 drawn on Bank of India, Malleshwara Branch, Bengaluru. On presentation, the said cheque came to be dishonoured with the banker's endorsement "insufficient fund". A legal notice was issued to the defendant in that regard. However, since he failed to repay the loan amount, the plaintiff filed a complaint, wherein the defendant was convicted in the said case. Since the loan amount with interest was still due, the plaintiff filed a suit for recovery of the said sum. 10. Pw-1 (plaintiff- Sri.N. Shivanna) in his support got produced and marked a certified copy of the cheque in question dated 12-08-1994 at Ex.P-1 and stated that the original of the said cheque was filed in the criminal case. He also got marked a Banker's endorsement at Ex.P-2, Debit Advice issued by the banker at Ex.P-3 and copy of the judgment in a Criminal Case delivered by the learned XII Additional Chief Metropolitan Magistrate, Bangalore City in C.C.No.144/1995 on 07-06-1999 at Ex.P-4. The defendant - Sri. Puttamalla got himself examined as DW-1, wherein he reiterated the contentions taken up by him in his Written Statement. The defendant - Sri. Puttamalla got himself examined as DW-1, wherein he reiterated the contentions taken up by him in his Written Statement. Though he did not deny that the cheque in question was given by him to the plaintiff, he contended that the same was not towards a non-existent loan which is alleged by the plaintiff, but the cheque was towards a security in a Chit business conducted by the plaintiff. He got produced and marked the certified copy of the deposition of the plaintiff in the Criminal case at Ex.D-2 and a certified copy of the F.I.R. in Crime No.377/1994 in Peenya Police Station at Ex.D-3. He also produced and got marked the original Savings Bank Account Pass Book at Ex.D-4, statement of his Savings Bank Account with Bank of India, Malleshwara Branch, Bangalore at Ex.D-5, copy of his reply to the notice of the plaintiff at Ex.D-6, postal acknowledgment card at Ex.D-7, five photographs of a building at Exs.D-8 to D-12, a cash bill at Ex.D-13 and a copy of the F.I.R. issued in Crime No.150/1992 of Subramanya Nagar Police at Ex.D-14 and has produced a document stating the same to be a copy of the Memorandum of Understanding entered into between the plaintiff and himself and got it marked at Ex.D-15. 11. The defendant also got examined one Sri. Chenna Hanumaiah as DW-2. The said witness in his Examination-in-chief in the form of Affidavit evidence has stated that, he knows both the plaintiff and the defendant and that he was also a member in a Chit Group organized by the plaintiff for a Chit scheme that was being run by him. Every member who had subscribed to the Chit was required to give a security for the total amount of the Chit to avoid a member becoming a defaulter in the scheme. It is in that regard the plaintiff had collected a blank cheque from the defendant also in the year 1990. After the closure of the Chit scheme, the plaintiff did not return the said cheque to the defendant stating that the same has been misplaced. The witness has further stated that in July 1994, there was some dispute between the plaintiff and the defendant in this regard and the plaintiff had assaulted the defendant near Peenya Petrol Bunk in which connection, the defendant had lodged a complaint against the plaintiff before the Peenya Police. The witness has further stated that in July 1994, there was some dispute between the plaintiff and the defendant in this regard and the plaintiff had assaulted the defendant near Peenya Petrol Bunk in which connection, the defendant had lodged a complaint against the plaintiff before the Peenya Police. At that time, he was told by the plaintiff that he would harass the defendant in Court on the basis of the cheque. The witness has also stated that at no point of time the defendant had borrowed any sum from the plaintiff. This witness was subjected to a detailed cross-examination from the plaintiff's side. Learned counsel for the appellant (defendant) in his arguments relied upon the evidence of DW-1 and DW-2 and submitted that the cheque was issued as a security towards a Chit business that was being run by the plaintiff. He further submitted that Ex.D-15 is an important document which shows that the plaintiff was running a Chit business and that the cheque was given to him by the defendant as a security in the said Chit business. He also submitted that the plaintiff had no capacity or source to lend the loan to the defendant. However, the Trial Court by erroneously appreciating the evidence led before it had decreed the suit of the plaintiff which deserves to be set aside. 12. Per contra, learned counsel for the respondent (plaintiff) in his argument submitted that the defendant was found guilty and was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. As such, his contention that the cheque was issued only as a security has already been decided by a competent Court and the said defence was not accepted. The defendant had utterly failed to establish that the plaintiff was running any Chit business and more importantly, the cheque in question was given to the plaintiff as a security in the alleged Chit business. He further submitted that Ex.D-15 is only a photo copy, as such, it is not reliable. Even after considering Ex.D-15, at the maximum, it may only go to show that there was some reference to Chit in the said document, but it fails to show that the cheque in question was given by the defendant to the plaintiff only as a security in the alleged Chit business. Even after considering Ex.D-15, at the maximum, it may only go to show that there was some reference to Chit in the said document, but it fails to show that the cheque in question was given by the defendant to the plaintiff only as a security in the alleged Chit business. On the contrary, even the said document also goes to show that the defendant was a defaulter and owes a large sum of money to the plaintiff. It is considering these aspects the Trial Court has rightly decreed the suit of the plaintiff. 13. It is not in dispute that the plaintiff and the defendant were working in the same Company, as such, they were acquainted with each other. Even according to the plaintiff, except the cheque at Ex.P-1, there are no other documents to show the alleged loan transaction said to have taken place between himself and the defendant. According to the plaintiff, subsequent to the dishonour of the said cheque by the Banker, he instituted a proceeding against the accused (defendant) under Section 138 of the Negotiable Instruments Act in C.C.No.144/1995 which ended in conviction of the accused/defendant. The said aspect has not been denied or disputed by the defendant. However, the only defence of the defendant was that the cheque in question was given in its blank form to the plaintiff as a security to the loan transaction said to have been run by the plaintiff. In the cross-examination of PW-1, though suggestions to that effect were made to the witness, however, the witness has not admitted those suggestions as true. It was also suggested to the witness that the cheque in question was given to him in the year 1990-91, but not in 1994 as alleged by the witness. The said suggestion also was not admitted as true by the witness. Further, it was suggested to the witness that in connection with PW-1/plaintiff allegedly assaulting the defendant, a police complaint was lodged against him in Crime No.377/1994 for the offence punishable under Sections 341 and 506 of Indian Penal Code, 1860. PW-1 volunteered to say that the police have filed a 'B' report in the said complaint. Further, it was suggested to the witness that in connection with PW-1/plaintiff allegedly assaulting the defendant, a police complaint was lodged against him in Crime No.377/1994 for the offence punishable under Sections 341 and 506 of Indian Penal Code, 1860. PW-1 volunteered to say that the police have filed a 'B' report in the said complaint. Thus, the attempts made in the crossexamination of PW-1 to elicit from the witness that the cheque in question was issued only as a security in respect of an alleged Chit business said to have been run by the plaintiff could not yield any favourable result in favour of the defendant. Further, the evidence led by the defendant in order to show that the cheque in question was issued as a security to the plaintiff in a Chit business is supported in the evidence of DW-1 and DW-2. As observed above, both DW-1 and DW-2 have uniformly stated that the plaintiff was running a Chit business. However, admittedly, neither of the witnesses have produced any document except Ex.D-15 to show that the plaintiff was running a Chit business and that the cheque in question was given to him as a security in the said activity. On the other hand, the defendant as DW-1 in his cross-examination has admitted a suggestion as true that he has not taken any action nor even issued any notice to the plaintiff asking him to return the cheque said to have been given by him to the plaintiff as a security. Thus, admittedly, the defendant has not taken any steps to seek returning of the said cheque. 14. The only other document on which the defendant solely relied upon to show that the plaintiff was running a Chit business and the cheque was given to him as a security in the said transaction is the document at Ex.D-15. 15. Ex.D-15 which the defendant has produced at a later stage in the Trial Court has been called by him as a Memorandum of Understanding said to have been entered into between himself and the plaintiff on 17-05-1994. The said document is not in its original, but it is a photocopy. The document is shown to be in two pages of a diary notebook of the year 1991. The defendant has not laid down any ground to produce the said document as a secondary evidence. The said document is not in its original, but it is a photocopy. The document is shown to be in two pages of a diary notebook of the year 1991. The defendant has not laid down any ground to produce the said document as a secondary evidence. However, the said document was got marked in the Trial Court without any objection there upon. The recital in Ex.D-15 would go to show that the dispute which the plaintiff and the defendant had with respect to Chit business was discussed in the presence of ten friends and they have expressed their opinions which both the parties have accepted. The said opinions are: (a) The defendant has to pay due amount of Rs. 26,000/- to the plaintiff Shivanna without any interest there upon before 20-08-1994; (b) The defendant Puttamalla to continuously pay a sum of Rs. 1,000/- per month totaling to Rs. 52,000/- towards the chit amount till the said amount is cleared; (c) The discount amount of a sum of Rs. 4,680/- is to be paid by the defendant Puttamalla to plaintiff Shivanna; lastly (d) The undisputed as well towards completed 29 chits and pending 23 chits, the amount has to be equally shared between them (each Rs. 500/-) which both of them have to go on paying. It is relying upon the above contents, the learned counsel for the defendant contended that it clearly establishes that there was a Chit business that was being run by the plaintiff, wherein the defendant was a member. As already observed above, the plaintiff has categorically denied that he was not running any Chit business as such. Ex.D-15, admittedly, is not an original document in itself, but it is only a photo copy. Even according to DW-1, the scribe of the said document was one Sri. Gopalaiah who was still alive. The said statement has come in the cross-examination of DW-1. Despite the scribe of the document at Ex.D- 15 being alive, the defendant did not choose to summon the said Gopalaiah as his witness and examine him in relation to Ex.D-15. Thus Ex.D-15 is basically a photo copy of a document and has not been produced in the manner how a secondary evidence is required to be produced in the Court. Further the defendant has not examined the scribe of the said document. Thus Ex.D-15 is basically a photo copy of a document and has not been produced in the manner how a secondary evidence is required to be produced in the Court. Further the defendant has not examined the scribe of the said document. Therefore, the said document cannot be accepted as a proof of the defendant's averment that the plaintiff was running a Chit business and in that connection, the defendant had issued the cheque in question as a security. Even if it is taken that Ex.D-15 evidences and shows that the plaintiff was running a Chit business, still, there is nothing mentioned in the said document about the defendant giving a cheque for a sum of Rs. 90,000/- which is the subject matter of the suit of the plaintiff as a part of the alleged settlement recorded in Ex.D-15. Nothing about the cheque in question has been mentioned in the said document. On the other hand, a reading of Ex.D-15 would go to show that the defendant was due to pay a large sum to the plaintiff, the details of which amounts have been mentioned in the said document itself and the same have been shown above. Therefore, Ex.D-15 would, in no manner, come to the rescue of the defendant to hold that the cheque in question was given by the defendant to the plaintiff as a security towards the alleged Chit business said to have been run by the plaintiff. 16. The last argument of the learned counsel for the plaintiff was that, the plaintiff had no source of income to lend a sum of Rs. 85,000/- to the defendant, as such, the alleged transaction creates a doubt. Admittedly, the plaintiff at the relevant point of time was serving in Kirloskar Electric Company Limited as has come out in his evidence. He had been working there since twenty years as a 'Turner'. He has stated that his salary was Rs. 7,000/- per month. The suggestions made to him that his salary was less than Rs. 5,000/- was not admitted as true by the witness. In addition to that, it was further elicited in the cross-examination of PW-1 by none else than the defendant himself that the plaintiff was also doing business in Speaker Box manufacturing in his residence, in which regard, he had got a licence. 5,000/- was not admitted as true by the witness. In addition to that, it was further elicited in the cross-examination of PW-1 by none else than the defendant himself that the plaintiff was also doing business in Speaker Box manufacturing in his residence, in which regard, he had got a licence. PW-1 in his cross-examination has also stated that he has got a house in Ward No.16 of Dasarahalli built on a 30 ft.x40 ft. site. He has stated that he owns two houses and has given the details of when he has purchased those two houses and for what consideration. PW-1 has further stated in his cross-examination that he had the cash amount with him which was the sale proceeds of his revenue site. For about a month or so, he had the said cash amount with him in his house. Thus, the plaintiff has shown that apart from his salary, he had other source of income also and many immovable properties in the form of house property standing in his name. From the defendant's side, a suggestion was made to this witness suggesting that the witness had spent more than Rs. 10,00,000/- to Rs. 15,00,000/- for construction of his house property. Though the witness denied the said suggestion as true, but, by making the said suggestion, the defendant has shown that the plaintiff was capable of spending Rs. 10,00,000/- to Rs. 15,00,000/- for the construction of his house. Thus a person who can spend a sum of Rs. 15,00,000/- for construction of his house in the year 1994 and who owns more than two house properties in his name and also running a Speaker Box Manufacturing business and is also an employee in a large Company, cannot be said to be incapacitated to lend a sum of Rs. 85,000/-. Therefore, the argument of the learned counsel for the appellant that the plaintiff had no funds to lend money to the defendant is also not acceptable. 17. Analysing all these evidences in its proper perspective, since the Trial Court has come to a right finding and decreed the suit in favour of the plaintiff, I do not find any reason to interfere in the said finding and to allow this appeal. 17. Analysing all these evidences in its proper perspective, since the Trial Court has come to a right finding and decreed the suit in favour of the plaintiff, I do not find any reason to interfere in the said finding and to allow this appeal. Accordingly, I proceed to pass the following:- ORDER [i] The appeal is dismissed; [ii] The judgment and decree dated 03-08-2004 passed in O.S.No.6274/1994 by the learned XXX Additional City Civil Judge, Bangalore City, is hereby confirmed; Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.