MUHAMMAD SALEEM JESSAR, J.---Through this appeal, the appellant/defendant has assailed the judgment dated 27.03.2010 (hereinafter to be referred as impugned judgment) and decree dated 01.04.2010 in Suit No.01/2007 passed by learned Additional District Judge, Kashmore whereby the summary suit, filed by respondent/ plaintiff (hereinafter to be referred as respondent) under Order XXXVII, Rule 2, C.P.C. on the basis, of cheques issued by the appellant for recovery of amount of Rs.500,000/= (Five Lacs Rupees only) against the appellant/defendant (hereinafter to be referred as appellant), was decreed directing the appellant to deposit the same amount within 15 days.
2. The facts, as enumerated in the appeal, are that respondent filed the suit under Order XXXVII, Rule 2, C.P.C. for recovery of amount of Rs.500,000/= (Five Lacs Rupees only) against the appellant before the District Judge, Kashmore @ Kandhkot which was assigned to learned Additional District Judge, Kashmore on 17.09.2017 (hereinafter to be referred as trial Court) for disposal according to law. The case of respondent is that he and appellant are members of Hindu community and relate to business community and therefore, having cordial relations and faith upon each other; the defendant in partnership with Ramchand son of Tulsi Dass (not party to the proceedings throughout). Said Ramchand was running business of sugar at Kandhkot and they have one outlet at Sukkur since 4/5 years and possessing good reputation amongst the community. In the month of April, 2005 the appellant along with Ramchand came to respondent at his shop and requested for friendly loan of an amount of Rs.500,000/- (Five Lacs Rupees only) which was given to the appellant in the month of April, 2005 in presence of witnesses Raja and Ashok. The appellant promised to return the same in the month of May, 2006 and issued such postdated cheque to respondent bearing No.71787483 dated 30.05.2006. The respondent presented the cheque issued by the appellant before Allied Bank Kandhkot Branch (hereinafter to be referred as ABL) on 03.06.2006 but said cheque was dishonoured with memorandum and endorsement to the effect that relevant Account has been closed. The said memo. with endorsement was handed over to the respondent by the Manager ABL to respondent. After return of the cheques, respondent approached to the appellant for repayment of the loan to him but instead to return the loan amount the appellant kept respondent on false hopes on the ground that his amount has been invested in the market. Instead of repeated demands finally the appellant refused to repay the loan amount to the respondent on 02.7.2006 besides issued threats to the respondent for facing dire consequences. The respondent has also approached to the partner of the appellant namely Ramchand but he refused to repay the same. It is the case of respondent that in order to cheat and defraud, the appellant has willfully closed the Account. Besides civil proceedings the respondent had also got registered FIRs against the appellant and Ramchand and after registration of the case matter was investigated and Ramchand was found innocent while the appellant was found guilty of committing fraud with the respondent by issuing postdated cheque to respondent. Latter one Nirmal Dass promised to return the amount due against Ramchand in instalments and issued post dated cheque to respondent. Since the case of action firstly arose on 03.06.2006 when the cheque was dishonored and then from time to time and finally on 02.7.2006 when appellant refused to pay the loan amount of Rs.500,000/- (Five Lacs Rupees only) to respondent along with mark up at bank rate therefore, suit in terms of Order XX XV II, Rule 2, C.P.C. was filed by respondent seeking relief in following terms:-- i) The Honourable Court may be pleased to pass a decree and order for recovery of an amount of Rs.6,00,000/- (In words Six Lacs) from the defendant through any mode and in case of his failure, pass an order for attachment and sale of his moveable and immovable properties belonging to him and his defendants. The details of which are submitted in schedule A annexed with plaint. ii) Award cost to the plaintiff. iii) Any other equitable relief which the Hon'ble Court deems fit and proper maybe awarded to the plaintiff.
3. After admission of suit and issuance of summons to the appellant and subsequently service upon him the appellant contested the suit by seeking leave of the court to defend the suit in terms of order dated 17.5.2007 and. then by filing his written statement dated 04.10.2007 taking plea that suit filed by the respondent was not maintainable as no cause of action was arose to him and that trial Court had got no jurisdiction. The appellant in defence had contended that no loan was obtained from the respondent nor any amount of respondent was due against the appellant. He criticized the cheque of Rs.500,000/= (Five Lac Rupees only) that the said cheque was stolen away by his rival partner Ramchand and such complaint was made by the appellant before the respondent. He further averred in his defense that the cheque produced by the respondent was bogus one and it was not issued by the appellant nor was given to the respondent or anybody else therefore, he contended that the payment in terms of cheque to respondent does not arise as the appellant had already closed his Account due to apprehension from his partner Ramchand. He has also submitted that his partner Ramchand and respondent were close friends therefore, they both made false and fabricated cheque which was not given by the appellant. Learned trial Court from the pleadings of the parties settled down following issues for determination on 26.02.2009.
1. Whether suit is maintainable by law?
2. Whether plaintiff and defendant had cordial relations and faith to each other being related to business community?
3. Whether plaintiff extended friendly loan of Rs.500,000/= to defendant in presence of witnesses namely Raja 5/0 Panjomal, and Ashok Kumar in the month of April, 2005?
4. Whether defendant promised to return the same loan in the month of May, 2006 and issued postdated cheque of Rs.500,000/= bearing No.71787483 dated 03.5.2006?
5. Whether the same cheque was dishonoured by the concerned Bank viz. Allied Bank of Pakistan Kandhkot branch?
6. Whether plaintiff managed false cheque with the name of defendant with help of businessman Ramchand?
7. Whether plaintiff is entitle to relief as claimed in the suit?
8. What should the decree be?
4. At the trial plaintiff Ganesomal examined himself at Ex: 8, PW-2 Rajkumar at Ex: 9, PW-3 Sakhi Muhammad Jr. Clerk of IInd Civil Judge, Kandhkot at Ex: 11, who produced photo copies of cheques in the name of Ganesomal for Allied Bank of Pakistan Kandhkot Branch along with memo. of bank at Ex:11-A, PW-4 Riyaz Ahmed Shaikh, Manager Allied Bank, Kandhkot at Ex:12, who produced statement of account of Mr. Washdev, Account No.3086-0 from 01.01.2006 to 30.12.2006 and covering letter bearing No.KAK/RAS/ 09/1336 dated 17.12.2009 at Ex:12-A and 12-B respectively.
Thereafter, learned counsel for plaintiff closed the plaintiff's side vide statement at Ex:13.
4-A. The appellant/defendant examined himself before trial court on 18.2.2010 at Ex.14 but had produced not a single document in support of his claim. In his cross he had admitted as "I did not lodge any FIR for such theft of cheques. I have not produced the copy of any application moved to DPO, Kashmoro at Kandhkot regarding theft of cheque" his PW namely Nadeem Oad was examined before trial court on 09.3.2010 at Ex.15. He seems to be his employee. This PW had deposed nothing in favour of the appellant and then counsel for appellant/defendant closed the side of his defence vide statement dated 9.3.2010 at Ex.16.
5. Mr.Bashir Ahmed Dargahi, learned counsel for the appellant contended that cheque was given by Ramchand which was signed by the appellant but the said cheque was maneuvered one on the ground that Account was opened by the appellant on 02.12.2005 and he has referred the statement of bank Manager produced in evidence at Exh: 12-B so as to show the appellant's A/C No.3086 was not even in existence at the time of alleged date of issuance of cheques(s). He further submitted that the appellant had not issued the cheque and he was Ramchand, who after stealing the cheques, had handed over the same to the respondent and therefore, the cheque which has been made basis for decree in the suit was not in existence therefore, entire transaction including the suit of respondent upto its judgment and decree is null and void therefore, he prayed for allowing the appeal and setting side of impugned judgment and decree.
6. Mr. Gulab Rai 'C' Jessrani, learned counsel for the respondent has contended that the cheque was issued by the appellant himself and he has taken two stances. On one hand he has stated that blank cheque book was stolen away by rival partner Ramchand who handed over the blank cheque signed by the appellant to the respondent and on the other hand he has relied upon the statement of the bank Manager showing that the Account was opened on 02.12.2005 and was closed on 09.05.2006. He further submitted that the bank Manager also has nexus with the appellant therefore, he had made such statement which itself is sufficient to prove the claim of the respondent. He has referred the said statement and while going through its contents has stated that the bank Manager had mentioned to the effect " A/C Master Record Missing or Closed from 09.05.2006." He further submitted that if the Account was opened on 02.12.2005 much latter from the date of cheque how it contained the proper Account Number mentioned in the statement furnished by the bank Manager. In support of his contention he has placed reliance upon the case of Mohammad Abdullah v. Mohammad Aslam (2014 CLC 1205) and Abdul Rasheed v. Syed Fazal Ali Shah (2016 SCM R 2163) and stated that the trial Court has rightly evaluated and assessed the evidence, adduced by the parties, therefore, there is no illegality or infirmity in the impugned judgment and decree so prayed for dismissal of the appeal.
7. I have heard the arguments and gone through the evidence, made available on record before me, with the able assistance of parties counsel.
8. Before going into details, I would add that a 'cheque' is normally expected to remain in the safe hands of the 'account holder' in result of relationship between the account holder and the bank; it (cheque) is issued by the bank directly to the 'account holder' with a clear understanding that whenever a cheque, duly signed, shall normally be honoured by bank if amount, so mentioned in the cheque, is sufficient for such encashment. This (cheque), in law, has been given status of 'negotiable instrument' which however cannot be engineered or fabricated as other document (s), declared or qualified as 'negotiable instrument'. Proper execution normally requires only two parts i.e. taking out the cheques from cheque-book which is believed to be in safe hands of account- holder and signing/execution thereof. The first part is exceptional which no other person can perform except by stealing; defrauding or finding a lost one which claim shall always upon the person who otherwise is expected to keep it (cheque) in safe hands.
9. Now, reverting to the merits, as regard to the plea of the appellant-defendant to the effect of date of issuance of cheque i.e. in the month of May, 2005 for which much stress has been laid to Exh: 12-B, available at page No.99 of the paper book which reads as under:-- "With reference to your office letter No. 1381/2009 dated 12.12.09 regarding the above we would like to inform you that the A/C No.3086-0 showing A/C Master Record missing or closed from 9.5.2006.
Statement of year 2006 enclosed and further above noted A/C opened on 02.12.2005."
10. The above statement no doubt speaks of opening the bank account on '02.12.2005' i.e. much after to the claimed date of issuance of cheque i.e. 'month of May, 2005' but this alone would not be sufficient to dislodge the presumptions attached with such cheque within the meaning of Section 118 of the Negotiable Instruments Act, including with regard to its 'date', as is envisaged by section 118(b) of the Act XXVI of 1881 which reads as:--
(b) that every negotiable instrument bearing a date was made or drawn on such date;
11. Patently, such stand of the appellant-defendant is contradictory to the very stance, taken by himself i.e. stealing of cheques by Ramchand and exploitation thereof by respondent-plaintiff. I am of the humble view that one cannot steal a thing which does not exist. In other words, to support a claim of stealing/theft it is always necessary to establish existence of allegedly stolen thing else the claim of theft shall not stand even if is admitted by alleged thief. Since, the appellant defendant himself took a specific plea while forming his pleadings that the cheques, in question, were stolen hence he (appellant-defendant) at subsequent stage cannot take a plea of non-existence thereof, because legally one cannot blow hot and cold in a single breath. Further, such, plea of the appellant-defendant appears to be not logicat for reason that the cheque in question not only contained serial number but also account number which even is referred in the said statement (Ex.12-B) which goes to conclude an undeniable presumption that at relevant time' appellant- defendant did have the account for which he (appellant- defendant) was issued the cheque book.
Without having an account opened there arises no question of issuance of cheque book. Last, but not the least, it was the appellant-defendant himself who in his written statement stated as:-- "the payment in terms of cheque to respondent does' not arise as the appellant had already closed his Account due to apprehension from his partner Rarttchand".
Thus, it was obligatory upon the appellant-defendant to have brought such application on record with reference to thereto he (appellant-defendant) got his account closed. The appellant- defendant though took a specific plea of stealing of cheque yet never lodged any FIR for such an alleged theft nor ever served Ramchand with any notice 'even after filing of the suit and FIR by the present respondent-plaintiff; even the Manager has not stated that the application duly signed by the appellant-defendant was available on his record with a complaint of cheques, being stolen; hence I do not find any reason to sail with such plea of the appellant-defendant, being, illogical.
From Ex.12/B) and stances of the appellant-defendant it stood established that cheque, in question, belongs to him (appellant-defendant) and thus legally he cannot ' escape the consequences, arising therefrom, unless proved contrary which the appellant-defendant has failed.
12. The learned counsel for the plaintiff-respondent also took a plea that contention of the counsel for the appellant-defendant was that there was difference between the serial number in suit as same are different from those mentioned in the FIR, lodged by the respondent-plaintiff. In this regard the clerk of the learned Civil Judge and Judicial Magistrate-II Kandhkot (hereinafter to be referred as trial Court) was examined before the trial Court who has resolved the ambiguity by deposing clearly that the cheque number mentioned, in the FIR and suit are same even otherwise mere typographical mistake/error shall not decrease the consequences which a 'drawer' to ensure encashment/payment of the amount to the 'holder' particularly where the 'cheque' belongs to 'drawer' and he fails to prove execution/issuance thereof in 'due course'.
13. As regard the plea of verification of the signature, it would suffice to say that since such plea was not taken before the trial Court, therefore, such evidence, even if allowed, cannot be legally looked into. Reference may be made to the case of Taj Muhammad Khan v. Munawar Jan 2009 SCM R 598 wherein it is held as:-- "6. ... and as provided in Rule 4 of Order VI, of C.P.C., if a plea has not been taken in the plaint, no amount of evidence can be looked into upon such pleadings not specifically taken up in the plaint.
Reference in this context can be placed on the cases of Siddik Mahmood Shah v. Mst. Saran and others, AIR 1930 PC 57. In Government of West Pakistan v. Haji Muhammad, PLD 1976 SC 469, it was held that a plea of fact not pleaded, no case can be founded thereon"
Even otherwise, the law is by now settled that status of evidence of an expert is nothing more than confirmatory or explanatory of direct or circumstantial evidence hence it shall never be given preference over confidence inspiring and worthy of credence evidence is available to prove otherwise. Reference can well be made to the case of Saadat Sultan v. Muhammad Zahur Khan 2006 SCM R 193 wherein it is held as: "5. ...Let we make it clear at the outset that the opinion of Handwriting Expert is a very weak type of evidence and is not that of a conclusive nature. It is well-established by now that expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available."
14. Further, the appellant had not produced any single document supporting his claim in terms of his defense vis-a-vis in this case and on the contrary respondent-plaintiff by way of evidence proved that the cheque bearing No. 71787483 dated 30.05.2006 issued by the appellant in his favour and was dishonoured by the bank concerned on presentation. Further, the facts of cheque, belonging to the appellant-defendant, and containing his own signature thereon, therefore, I am of the considered view that the trial Court has rightly decreed the suit against appellant and impugned judgment being speaking one is confidence inspiring. Consequently, the appeal, in hand being devoid of its merits, is hereby dismissed with no order as to costs.
R&Ps of Civil Suit No.01/2007 be returned to learned trial court.