MUHAMMAD SHAN GUL J. Through this judgment the titled regular first appeal is sought to be decided.
2. Facts in brief are that the respondent before this Court filed a suit under Order XXXVII, Rule II of CPC against the appellant for recovery of Rs.50,000/-. It is stated in the plaint that in order to effectuate a compromise in crime report No.134/2014, Police Station Saddar Ali Pur the appellant gave a cheque drawn on the NRSP Bank amounting to Rs.50,000/- to the responde nt as consideration for the compromise and so as for the appellant to get out of the rigours of criminal law and that on the scheduled date when the cheque was presented for encashment the same was dishonored on account of insuf ficient funds and hence the suit.
3. This cause of action has been explained quite vividly in the plaint according to which the respondent, upon a dacoity at his residence, got registered a crime report bearing No.134/2014 at Police Station Saddar Ali Pur for offences under Section 397,458,337F-5 PPC and nominated the appellant by way of a supplementary statement and who eventually secured bail from this Court. That during the course of trial a compromise was effectuated whereby the loss occasioned to the respondent was apportioned equally between all nominated accused and as a result whereof Rs.50,000/- were to be paid by the appellant who issued a cheque drawn on the NRSP Bank for the said purpose. This cheque was for a determined amount of Rs.50,000/- and when the cheque was presented for encashment the same was dishonored on account of insuf ficient funds and the respondent returned empty handed from the bank alongwith a dishonor slip. That the respondent approached the appellant thereafter but the appellant remained unmoved and the respondent had no choice but to file a suit on the basis of the negotiable instrument in question. That a crime report for dishonor of cheque was also registered. That on 03.04.2019 the respondent also addressed a notice in terms of the Nego tiable Instruments Act, 1881 to the appellant but the same remained un- responded.
4. This narrative of the respondent has been admitted by the appellant during the course of evidence who has stated in his examination in chief that he was a nominated accused in a crime report pertaining to dacoity and on account of a compromise having been effectuated he was saddled with the liability to pay Rs.50,000/- to the respondent and that he handed over a cheque drawn on his account in the NRSP bank to the respondent. That eventually he paid Rs.50,000/- to the respondent in cash but the respondent refused to hand back the cheque to him.
5. As is evident the issuance of the disputed cheque is admitted and in terms of Section 118 of the Negotiable Instruments Act, 1881 it shall be presumed that the cheque was issued for consideration and hence is a valid negotiable instrument.
6. The appellant filed a written statement in the matter and out of the pleadings of the parties the following four issues were framed: Issues:
1. Whether the defendant had borrowed an amount of Rs.50,000/- from the plaintiff and in lieu of the same issued cheque No.1893454 dated 01.05.2019? OPP
2. hether cheque above mentioned in issue No.1 has been dishonored on its presentation? OPP
3. Whether in consideration of said cheque amount was actually paid by the plaintiff to the defendant or not? OPD
4. Whether the cheque was issued as a guarantee to the plaintiff and no payment was ever paid against the disputed cheque? OPD
7. The respondent in order to prove the issues appeared in the witness box as PW-1 and reiterated the contents of his plaint. His witnesses PW-2 and PW-3 outrightly supported his narrative and these three witnesses were supported and backed by the testimony of PW-4 i.e. Branch Credit Officer of NRSP Bank who stated that on 02.05.2016 the cheque in issue was presented but was dishonored and returned to the respondent with a dishonor slip.
8. On the other hand, the appellant appe ared as his own witness and controverted the stance of the respondent.
One Ghulam Yaseen appeared as his witness and supported his stance. However both of them could not offer any plausible reason or basis about why if the appellant had allegedly paid the amount of Rs.50,000/- to the respondent the cheque in issue was not taken back or for that matter why no effort was undertaken to retrieve the cheque in question and why even no suit for its cancellation had been filed. This disconnect dampens the case of the appellant!
9. The trial court noted that the issuance of cheque or for that matter the cheque itself was not disputed and had in fact been admitted by the appellant but who had failed to discharge the onus of proof about paying up the disputed amount to the respondent through cogent or inspiring evidence. The trial court rightly drew upon the fact that in the presence of hostilities between the competing parties and in the presence of previous criminal litigation which clearly revealed animosity between the parties, the omission to retrieve the cheque was fatal and the only presumption that could be drawn from this particular aspect was that no payment had been made because the same could not be proved and also because the cheque had been allowed to be retained by the respondent.
Moreover , no witnesses were cited or brought forward to establish the contention pertaining to return of money . The trial court also noted that the respondent on account of his statement which was supported by his witness' s statements and which in turn were bolstered by the statement of the representative of the bank, had driven home his stance, so to speak, and had discharged the initial onus of proof and which could not be rebutted by the appellant and hence decreed the suit.
10. Likewise, the lame ancillary stance of the appellant about the cheque having been issued by way of guarantee did not find favour with the trial court and rightly so because no evidence was led to even remotely establish the element of guarantee.
11. I have heard the learned counsel for the appellant as also learned counsel for the respondent. While the counsel for the respondent has supported the impugned judgment and decree, the counsel for the appellant has attacked the judgment and decree as being erroneous. Learned counsel for the appellant submits that there was no consideration on account of which the cheque had been issued and that nothing had been received by the appellant on account of which he had issued the cheque in question and that hence there was no consideration and the requirements of Section 1 18 of the Negotiable Instruments Act, 1881 had not been met.
12. The question before this court, therefore, is whether the concession on the part of the respondent in allowing the appellant to get out of the rigours of criminal law qualifies as consideration or not.
13. The term consideration has been defined in the Contract Act, 1872 as follows: "When, at the desire of the promisor , the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise".
14. Naturally the term consideration as it appears in the Negotiable Instruments Act, 1881 carries the same connotation, and has to be interpreted in the light of the definition of the term consideration as contained in the Contract Act, 1872. It may be seen that the words "for consideration" as used in Section 118 of the Negotiable Instruments Act, 1881 are quite general. While there is a presumption of consideration having passed for a negotiable instrument there is no presum ption as to the nature of such consideration or for that matter even the kind of such consideration. To constitute consideration it is even not necessary that something should already have been done. It is sufficient if there is a promise to do an act. In "Nathu v. Wali Muhammad and anothe r" (AIR 1933 Lahore 121) it has been lucidly held at page 122 that abandonment of a disputed claim is a valid consideration and it makes no difference even if the claim is ultimately found to be without foundation. Hence, appellant being saved from the prospects of protracted and uncertain litigation suffices as consideration.
15. This proposition of law has been ackn owledged with advantage in "Thakur Madhosingh v. Jagdambalal and Anr." (AIR 1960 Rajasthan 237) wherein it has been held that the abandonment of a dispute is a valid consideration and it makes no difference if ultimately the claim is found to be without foundation since on account of the compromise a party is saved from the rigours of uncertain litigation.
16. In the matter before this court the act of the respondent whereby he compromised and abandoned his claim against the appellant in the criminal case registered against the appellant at the instance of the respondent and thereby allowed the appellant to earn a clean chit, avoid stigmatization and escape the rigours of criminal law as also the consequent alleviation of anxiety resulting from protracted criminal prosecution is what serves as consideration for the cheque in question.
17. In "Muhammad Ameen v. Wali Khan" (2016 CLD 771) the Sindh High Court has held "that the execution of a negotiable instrument can only be for the purpose of clearing up or paying up certain liability or consideration and which particular consideration need not be referred or mentioned in or on the negotiable instrument". It has been held at paragraph No.11 that "I would also like to make it clear that even if before execution of a 'negotiable instrument' the parties were under certain liabilities through some written agreement, this would not be sufficient to deprive one from resorting to the course provided by Order XXXVII of the Code if it is established that earlier liabilities were settled by execution of the 'negotiable instrument'. This is so for the simple reason that execution of the 'negotiable instrument' itself means to make an unconditional promise to pay a certain sum on demand or at certain future date to the holder which is always against some 'consideration'. If a contrary view is allowed to hold the field it would not only frustrate the purpose and object of 'the Act' but shall also fail the object of Order XXXVII of the Code through which the law , at least, gives a hope for recovery of the amount in a summary manner".
18. In "Pahal Khan (Deceased) through L.Rs. v. Muhammad Iqbal (Deceased) through L.Rs." (2021 CLC 1668 ) it has been aptly noted that consideratio n does not always mean money but it can also take several other forms including abstinence of one party from taking any action. That abstinence or forbearance by one person at the desire of another gives rise to corres ponding rights and clearly qualifies as consideration in terms of Section 2(d) of Contract Act, 1872. Similar observations have been recorded in "Lal Bux v. Abdul Rasool through Legal Heirs and another" (1994 CLC 138), as also in "Hafeez Ullah Khan and 2 others v. Al-Haj Chaudhri Barkat Ali and 2 others" ( PLD 1998 Karachi 274 ).
19. In fact the High Court of Delhi in "K.S Bakshi and Amr v. State and Amr" 146(2008) DLT 125 has held that consideration is a very wide term and is not restricted to monetary benefit. Consideration does not necessarily mean money in return of money or money in lieu of service. Any benefit of some value can be valid consideration. Hence the argument of the counsel for the appellant that consideration necessarily involves money or monetary benefit or something susceptible to valuation in terms of money is a non-starter . The term consideration signifies any abstinence, forbearance, benefit or responsibility by the promisee at the instance of the promisor and it is this arrangement which gives rise to the corresponding right.
20. Besides what has been noted above it is trite that according to Section 118 of the Negotiable Instruments Act, 1881, until the contrary is proved, a presumption shall be drawn that the negotiab le instrument in question was a drawn for consideration and the burden to rebut this presumption lies upon the party arguing that the negotiable instrument has not been drawn for consideration and that a bare denial of the passing of consideration does not appear to be any defence. That something probable has to be brought on record for getting the benefit of shifting the onus of proof to the plaintif f. As aptly noted by the Hon'ble Supreme Court of Pakistan in "Rab Nawaz Khan v.
Javed Khan Swati" (2021 CLD 1261 ), " to disprove the presumption the defen dant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist . . . . . . . . . .". This trite position of law has also been recognized by a large r bench of the Hon'ble Supreme Court of Pakistan in "Muhammad Aziz ur Rehman v . Liaquat Ali" ( 2007 CLD 1542 ).
21. After the admission by the appellant about having issued the cheque the onus to prove that the cheque was issued without consideration was on him and he conspicuously remained unable to discharge the onus of proof required in this respect. In addition what is also important in the present matter is the fact that after admitting the issuance of the cheque in question and taking up the plea that he had returned the amount of money mentioned in the cheque the appellant did not file any suit for cancellation of the cheque in question and did not make any effort to have it rescinded or cancelled. This omission on the part of the appellant is crucial and fatal to his case and attracts the law laid down by a Division Bench of this Court in "Muhammad Nawaz v. Qazi Muhammad Rashid"
(2018 CLD 104 ) at paragraph No.1 1.
22. Dismissed.