SAFDAR SALEEM SHAHID, J. Against the judgment and decree dated 10.11.2020 passed by learned Addl. District Judge Hasilpur, whereby suit filed by respondent/plaintiff for recovery of 40,00,000/- on the basis of cheque under Order XXXVII, Rules 1, 2, C.P.C. was decreed, instant appeal has been preferred.
2. The brief facts of the case are that respondent/plaintiff filed the aforesaid suit against the appellant/defendant on the basis of cheque No.82485952 dated 22.10.2015 pertaining to Habib Metropolitan Bank Ltd, Hasilpur issues by the appellant/defendant with the assertion that there was cordial business relations between the parties inter-se; that in the month of November, 2015 the appellant/defendant came to respondent/plaintiff and demanded an amount of Rs. 40,00,000/- in order to meet his personal needs for sending some persons to Saudi Arabia; that the respondent/plaintiff handed over the aforesaid amount to appellant/defendant in presence of the witnesses namely Muhammad Boota and Tanvir and issued the aforesaid cheque in favour of respondent/plaintiff and it was promised by the appellant/defendant to return the said amount on due date; that on 27.10.2015 the respondent/plaintiff presented said cheque in the bank which was dishonoured; that the respondent/plaintiff filed an application under sections 22-A/22-B, Cr.P.C seeking registration of criminal case before the then learned Addl. Sessions Judge/Ex-Officio Justice of Peace, Hasilpur and on the direction of said court case. FIR No.519/2016 under section 489-F, P.P.C. was registered at Police Station City Hasilpur; that the appellant/defendant is bound to pay the said amount to him; that the appellant/defendant has been asked repeatedly to pay his amount along with 20% profits but he refused to do so.
3. The appellant/defendant moved an application for leave to appear and defend the suit which was allowed by the learned trial court vide order dated 03.12.2018. The appellant/defendant contested the suit by filing written statement alleging therein that nothing was outstanding against him. Out of divergent pleadings of the parties, following issues were framed:- ISSUES:
1. Whether the plaintiff is entitled to recover Rs. 40,00,000/- from the defendant on the basis of cheque No.82485952 relating to Habib Metropolitan Bank Ltd. Hasilpur? OPF.
2 Whether the alleged cheque is result of fraud, forgery as the defendant issued two open cheques as guarantee and two stamp papers including the impugned cheque to plaintiff in lieu of amount of Rs. 4,30,000/- loan which has been paid by him and as such the suit is liable to be dismissed?
OPD Whether the plaintiff has no cause of action to file this suit". OPD
4. Relief.
4. The plaintiff examined four witnesses including his statement as 'PW-1 and also tendered on record the original cheque Exh.P-1, Memo thereof as EXh.P2. The plaintiff/respondent (P.W-1) in his examination-in-chief deposed that four years prior to the institution of the suit the appellant/defendant Muhammad Afzal came to him and demanded an amount of Rs. 40,00,000/- on the pretext of sending some persons to Saudi Arabia. After 4/5-days he handed over the said amount to appellant/defendant in presence of witnesses namely Muhammad Boota, Zulfiqar and Tanvir Ahmed whereupon he (Muhammad Afzal appellant delivered cheque (Exh.P1) to him but the said cheque was dishonoured on its presentation in the bank. It was further alleged by P.W-1 that he also lodged a criminal case under section 489-F, P.P.C. against the appellant on the basis of said cheque. Muhammad Boota P.W-2 deposed that in the year 2014 he along with P.W Zulfiqar was present at the house of the respondent, in the meanwhile Muhammad Afzal appellant and his uncle came over there and respondent handed over an amount of Rs.40,00,000/- to appellant whereupon he (Muhammad Afzal appellant) delivered cheque Exh. P.1 to respondent. It was further alleged by P.W-2 that he has no knowledge whether it was an open cheque or not, P.W-3 Zulfiqar deposed in accordance with the version of P.W-2. On the other hand the appellant/ defendant/DW-1 deposed that in fact he obtained an amount of Rs. 4,30,000/- as a loan from the respondent and in this regard he delivered two open cheques and two stamp papers to respondent as a security/ guarantee; that on the date fixed the respondent demanded for return of his amount whereupon the appellant approached the close friend of the respondent namely Munir Ahmad who used to work of interest with the respondent, for payment of disputed amount and he agreed to pay the said amount, however said Munir Ahmad also demanded Rs. 2,00,000/- as interest from the appellant upon which said Munir Ahmad called the respondent through telephonically and paid the whole amount to the respondent but he did not return his surety cheques and stamp papers, rather used the same against the appellant/defendant on the basis of mala fides. DW-2 also deposed in line with DW-1. In documentary evidence he produced the copy of FIR No.139 of 2016 under sections 3/4 of Money Laundering Act Police Station Saddar Hasilpur as Mark 'A'.
5. Learned counsel for the appellant/defendant contended that appellant neither obtained any amount from the respondent nor issued the cheque in question in his favour; that in fact the appellant obtained an amount of Rs. 4,30,000/- as a loan from the respondent and in this regard he delivered two open cheques and two stamp papers to respondent as a security/guarantee; that on the fixed date the respondent demanded for return of his aforesaid amount whereupon the appellant approached the close friend of the respondent namely Munir Ahmad who also used to work of interest with the respondent, for payment of disputed amount who agreed to pay the said amount, however said Munir Ahmad also demanded Rs. 2,00,000/- as interest from the appellant upon which the said Munir Ahmad called the respondent on telephone and paid the whole amount to the respondent; that the appellant demanded for return of cheques and stamp papers from the respondent who delayed the same on one pretext or the other and thereafter he got registered case FIR No.519/2016 offence under section 489-F, P.P.C. at Police Station City Hasilpur; that the respondent is notorious blackmailer and usurer person and this fact has been admitted by the respondent in his cross-examination; that during cross-examination the respondent/PW-1 admitted that a criminal case FIR No.139 of 2016 regarding Punjab Prohibition of Private Money Lending Act 2007 was registered against him at the instance of one Muhammad Shafi (close relative of the appellant); that evidence of P.W-2 and P.W-3 is not trustworthy and confidence inspiring because the said witnesses are involved in immoral activities who are companions of the respondent; that neither the respondent nor the P.Ws had mentioned any specific date in the plaint or in evidence as to when the loan amount was advanced to the appellant/defendant; that the respondent has failed to produce cogent evidence in order to establish his financial position and capacity to pay such a huge amount as loan; that in fact complainant of aforesaid FIR is close relative of the appellant, therefore, on the basis of said grudge the complainant did not return the disputed cheques and stamp papers to appellant/defendant and thereafter used the said cheques against the appellant on the basis of mala fide; that Muhammad Boota who was cited as eye-witness in case FIR No.519 of 2016 offence under section 489-F, P.P.C. registered against the appellant at the instance of respondent, totally denied the plaintiff's version by recording his statement before the I.O vide diary No.14 dated 02.10.2018 with the claim that neither the appellant obtained an amount of Rs. 40,00,000/- from the respondent in his presence nor he had any knowledge regarding the alleged transaction and his pre-arrest bail was confirmed by this Court vide order dated 16.01.2019; that respondent mentioned two eye-witnesses namely Tanvir and Muhammad Boota in the FIR registered under section 489-F, P.P.C. regarding the disputed cheque whereas in the suit name of Zulfiqar P.W is also mentioned along with said Tanver and Boota P.Ws, therefore he has made improvement in the suit; that P.W 1/respondent during his cross- examination contended that the appellant along with his uncle came to the respondent for obtaining the amount whereas P.W2 and P.W-3 took a different stance that the appellant came alone for obtaining the money; that P.W-1 took stance in FIR that he had handed over the amount to the appellant in court premises but in the suit as well as in his statement he took a contrary stance that the said amount was handed over to appellant in his drawing room; that learned trial court while passing the impugned judgment and decree did not consider the evidence available on record in its true perspective and passed the impugned judgment without discussing the material available on record which is not sustainable in the eye of law. Thus, it is submitted that by accepting instant appeal impugned judgment and decree passed by learned trial court is liable to be set aside and suit of the respondent be dismissed.
6. On the other hand, learned counsel for respondent defends the impugned judgment and decree 10.11.2020 and submits that learned counsel for appellant has failed to point out any illegality or material irregularity in the same, which is liable to be upheld; that appellant obtained an amount of Rs. 40,00,000/- from the respondent as loan in presence of witnesses Muhammad Boota, Zulfiqar and Tanvir Ahmad on the pretext of sending some persons to Saudi Arabia and issued cheque Exh.
P1 and thereafter the appellant did not return the said amount on the due date and the cheque was dishonoured on its presentation in the bank; that execution of cheque Exh.P-1 has not been denied by the appellant; that the witnesses of the respondent have fully supported the version of the respondent; that the respondent/plaintiff by producing trust worthy and confidence inspiring evidence has proved its case against the appellant and learned trial court has decreed the suit in accordance with law after taking into consideration the evidence lead by the parties. Thus, it submitted that instant appeal is liable to be dismissed.
7. Arguments heard. Record perused.
8. In the plaint the respondent/plaintiff has not mentioned the date, time and place when an amount of Rs, 40,00,000/- was handed over to appellant/defendant. In the plaint the plaintiff/respondent took stance that the aforesaid amount was handed over to appellant Muhammad Afzal in presence of witnesses Tanvir and Muhammad Boota whereas the respondent/plaintiff while appearing as P.W-1 before the learned trial court made improvement by contending that Zulfiqar P.W was also present at that time but said P.W (Zulfiqar) was neither cited as witness in the FIR nor in the plaint. The plaintiff/respondent in his statement has also not disclosed the date, place and time when the appellant came to him and demanded the money from him and thereafter he handed over the amount to appellant simple on his request. P.W-1 in his statement took stance that appellant came alone and obtained the amount from him on the pretext of sending some persons to Saudi Arabia but Muhammad Boota (P.W-2) and Zulfiqar Ali P.W-3 deposed contrary that Muhammad Afzal appellant and his uncle came at the house of the respondent/plaintiff where he gave the amount to appellant and it was not disclosed by the appellant that the said amount is required for sending some persons to Saudi Arabia. During cross-examination he stated that he is not the owner of any land, rather he used to cultivate the land on lease. During cross-examination, he also stated that he runs the business of sale and purchase of wheat and cotton but he has no shop for such business. It was also contended by him that he has no cash book or maintains the record regarding his business and he does not pay any tax to Govt. of Pakistan in this regard. It was also admitted by P.W-1 during cross-examination that the appellant/defendant has no business in Pakistan. He further stated that besides Muhammad Afzal appellant he also gave an amount of Rs. 30,00,000/- to Muhammad Sajjad as a loan and he filed suit for recovery of said amount against him. PW-1 further stated that he also delivered an amount of Rs. 14,00,000/- to Muhammad Shafi and Muhammad Shahbaz as a loan who are the close relative of the appellant but they did not pay the said amount to him. During cross- examination he admitted that said Muhammad Shafi (relative of appellant) got registered a criminal case FIR No.139/2016 under sections 3/4 of the Punjab Prohibition of Private Money Lending Act, 2007 against him at Police Station Saddar Hasilpur. He also stated that he used to cultivate the land of Muhammad Munir brother of Muhammad Tanvir P.W.
9. From the evidence it is crystal clear that the respondent has not been able to establish that in the year 2014 he had such a financial position and capacity to pay such a huge amount as a loan to appellant as well as other persons. It is quite improbable that such a substantial amount shall be given by the respondent/plaintiff to appellant simple on his request who has no blood or family relation. Mere the fact that respondent/plaintiff is in cultivating the land on lease belonging to Muhammad Munir brother of Muhammad Tanvir P.W. Although Muhammad Tanvir was cited as witness in the plaint as well as in the FIR but admittedly he was not produced before the learned trial court, in this way, best evidence has been withheld by the respondent/plaintiff, thus, an adverse inference under illustration (g) to Article 129 of the Qanun-e-Shahadat Order, 1984 could easily be drawn that in case he was produced he would not have supported plaintiff's version. The evidence of respondent/plaintiff (P.W-1) is not reliable, trustworthy and confidence inspiring because he is involved in Punjab Prohibition of Private Money Lending Act 2007 case and this fact was confirmed by him during his cross-examination that. case FIR No.139 of 2016 regarding Money Lending was also registered against him.
10. In the plaint as well as in the FIR the respondent took stance that appellant had obtained an amount of Rs. 40,00,000/- from him as a loan for sending some persons to Saudi Arabia but .no evidence has been produced by the respondent in order to establish that appellant was running the business of travelling agency or he had established any office for providing employment Visas to the people. The respondent/plaintiff failed to prove any business of the appellant to invest the amount. It has further been noticed that pertaining to disputed cheque the respondent lodged case FIR No,519 of 2016 offence under section 489-F; P.P.C. at Police Station City Hasilpur.
Muhammad Afzal appellant filed his pre-arrest bail petition through Criminal Misc. No.3214-B of 2018 and his pre-arrest bail was confirmed by this Court vide order dated 16.01.2019 on the ground that "one of the witness namely Muhammad Boota, mentioned in the. FIR, in whose presence the petitioner/appellant allegedly borrowed the amount, has totally denied the prosecution's story by recording his statement with the I.O vide zimini No.14 dated 02.10.2018, stating that neither the appellant obtained Rs. 40,00,000/- from the respondent in his presence nor he has any knowledge in this regard. During investigation vide zimini No.14 dated 02.10.2018, it has also been concluded that actually the appellant borrowed Rs. 4,30,000/- instead of Rs. 40,00,000/- from the respondent and appellant issued two cheques and a blank stamp paper as guarantee to the respondent in this regard and he had already paid the said amount to the respondent. Muhammad Boota appeared as P.W-2 before the learned trial court and his version/statement is totally contrary to the stance taken by him before the I.O during the investigation.
11. Section 118 of the Negotiable Instruments Act, 1881, does not envisage a conclusive presumption about drawing consideration etc. of the negotiable instrument, rather, without any fear of contradiction, it can be held to be rebuttable in nature and this is so clear and obvious from the expression used in the Section i.e. "until the contrary is proved". The question, which shall thus arises for the consideration is that where a claim is propounded on the basis of a negotiable instrument, is it necessary and imperative in all such cases that the defendant should prove in the negative, that he has not drawn the instrument and that it is without consideration or it is for the plaintiff to discharge the initial burden of proving his case in this regard especially when the plaintiff has undertaken to prove that the negotiable instrument (cheque) has been duly executed for the consideration by not only that Issue No.1 has been framed in this case, which has placed the onus in this behalf upon the respondent/plaintiff rather he himself led evidence to prove the payment of the money through two witnesses PW-2 and PW-3, his own statement, therefore, as per the judgment reported as Salar Abdul Rauf v. Mst. Barkat Bibi (1973 SCMR 332), the respondent/plaintiff is precluded in law to urge in this case that it was for the respondent to prove to the contrary.
12. Keeping in view the evidence available on record the respondent/plaintiff failed to prove his case as setup and that as to why he had paid a huge amount of Rs. 40,00,000/- to appellant/defendant simple on his request who had no blood or family relationship with him. In these circumstances, the findings of learned trial court on issues Nos.1, 2 and 3 are reversed and same are decided in favour of the appellant/defendant. The learned trial court failed to appreciate the evidence on record and committed an error while passing the impugned judgment and decree dated 10.11.2020. Thus, instant appeal is accepted, judgment and decree dated 10.11.2020 passed by learned Addl. District Judge Hasilpur is set aside. Resultantly, the suit of the respondent/plaintiff for recovery of an amount of Rs. 40,00,000/- on the basis of cheque under Order XXXVII, rules 1, 2, C.P.C. is dismissed. No order as to costs.