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2022 (2) TMI 723 - HC - Indian LawsDishonor of Cheque - has the plaintiff succeeded in establishing the execution of Ext. A1 cheque and if so, has the defendant rebutted the presumption under s. 118 of the Negotiable Instruments Act, 1881(the Act) by setting up a probable defense? - HELD THAT:- It is true that no complaint alleging the commission of the offence under s. 138 of the Act has been filed by the plaintiff. The learned Senior Counsel was pointedly asked as to why such a course of action had not been adopted, to which it was submitted that since the plaintiff is working abroad, it was not practical or possible for him to appear on all posting dates before the Magistrate Court concerned. That of course is not a satisfactory answer. But at the same time, it has to be noted that the plaintiff herein has paid a sum of ₹ 20 odd lakhs, certainly a hefty sum, as court fees before the trial court and this Court. Therefore, had there been no case at all as contended by the defendant, it is improbable for the plaintiff to have paid such a big sum and proceed with the litigation. In the case on hand, the court below has found that in spite of the existence of better evidence or best evidence in the possession of the plaintiff, he has failed to produce the same before the court. In reply to the applications filed by the plaintiff for production of additional documents, the learned counsel for the defendant drew our attention to the testimony of PW1 wherein he deposed that he is not in possession of any other document(s) to evidence the plaint transaction - According to the court below, there is only a general pleading in the plaint that payments were made to the defendant in several installments through cash as well as through Bank account. Ext. A17 was also produced only at the fag end of the trial. The plaintiff had also not referred to this payment when he was examined as PW1. In the absence of specific pleadings in the plaint regarding this payment and also the omission on the part of PW1 to refer to the same in his testimony, persuaded the court below not to rely on Ext. A17 on the ground that mere entries in the books of account are not sufficient to charge a person with liability, relying on Section 34 of the Evidence Act. However, it needs to be noticed that an amount of ₹ 35 Lakhs appear to have been paid to the defendant. This has to be viewed in the background of the contention taken up by the defendant denying the entire transaction. The case put-forward by the defendant that Exts. B1, B2 and A1 were actually given as security for the business transaction that took place between the parties in Dubai, is also not probable because even according to the defendant, the business transaction relating to the supply of building materials/hardware took place in Dubai. Therefore, for a transaction that took place in Dubai, it is improbable for the parties or the defendant to give Exts. B1, B2 and A1 cheques, which are admittedly cheques issued by the Banks in Kerala. It is further true that the plaintiff cannot succeed due to the inconsistent stand of the defendant or based on the loopholes or the weakness in the case put-forward by the defendant - even though there are some laches on the part of the plaintiff in properly conducting the case and omission or laches on his part in producing all the documentary evidence in his possession to prove his case when the matter had been posted for his evidence, in the facts and circumstances of the case, the interest of justice requires an opportunity to be given to the plaintiff to establish his case. The matter is remanded to the trial court for a fresh disposal. The plaintiff is given the liberty to adduce further evidence to substantiate his case - appeal allowed by way of remand.
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