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2021 (8) TMI 376 - HC - Indian LawsDishonor of Cheque - rebuttal of presumption or not - non-consideration of version of P.W.1 - burden of proof will shift to the defendant or not - reliance placed upon the nugatory contentions of the defendant - Section 118 of the Negotiable Instruments Act - HELD THAT:- The suit in question has been laid on the strength of the promissory note. In the written statement itself, the defendant had admitted his signature in the promissory note. His only defence is that when the defendant handed over the promissory note, it was blank. In other words, in a blank promissory note, his signature was taken. The defendant would explain that the plaintiff was conducting an unregistered chit business and that at the time of disbursing the prize money, the plaintiff was the habit of taking signature in the blank pro-note from the subscribers of the chit group. The defendant had also handed over the suit pro-note only under such circumstances. Since the relationship between the parties came under strain, the plaintiff had chosen to misuse the suit promissory note and filed the suit on that basis. In the case on hand also, the signature in the suit pro-note has been admitted - there has been a gap of almost 16 years between the date of execution of the suit pro-note and the examination of the witnesses in the Court. In view of the efflux of time, the memories are likely to fail. The contradictions noted in the deposition of the witnesses by the First Appellate Court are not really material. The only way the defendant could have rebutted the presumption is to show that the plaintiff was running the chit business and that, when he had bid for the prize money, the suit pronote was taken. The plaintiff had categorically stated that the defendant was none other than his nephew. The plaintiff had originally stated that the defendant was the son of his elder brother. Later, the plaintiff clarified that the defendant was his cousin's son. But the fact remains that the defendant and the plaintiff are close relatives. Hence, there is no merit in the contention that the witnesses examined on the side of the plaintiff are relatives. In view of the relationship between the parties namely the plaintiff and the defendant, the fact that the attestor is also a relative pales into insignificance. The first Appellate court has unnecessarily given importance to minor contradictions. The impugned Judgment and decree passed by the First Appellate Court is set aside - Appeal allowed.
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