SHAHID BILAL HASSAN, J. Succinctly, the respondent instituted a suit under Order XXXVII, Rules 1 and 2, Code of Civil Procedure, 1908 for recovery of Rs.165,000/- on the basis cheque against the present appellant, wherein the appellant filed application for leave to appear and defend the suit, which was accepted and he contested the suit. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties was recorded. Ultimately, the learned trial Court vide impugned judgment and decree dated 01.11.2016 decreed the suit in favour of the respondent, against the present appellant; hence, the instant appeal.
2. Heard.
3. There are certain presumptions attached to the same in terms of Section 118 of the Negotiable Instruments Act, in a suit for recovery on the basis of a negotiable instrument, as to the passing of consideration, date, time etc., which though is rebuttable by leading evidence by the defendant.
Section 118 of the Act reads as under: "118. Presumptions as to negotiable instrument-- -(a) Of consideration; (b) as to date; (c). as to time of acceptance; (d) as to time of transfer; (e) as to order of endorsements (1) as to stamp; (g) that holder is a holder in due course. - Until the contrary is proved, the following presumptions shall be made,
(a) that every negotiable instrument was made or drawn of consideration, and that every such instrument, when it has been accepted, endorsed negotiated or transferred, was accepted, endorsed negotiated or transferred for consideration:
(b) that every negotiable instrument bearing a date was made or drawn on such date;
(c) ......"
The defendant, in the suit, by setting up a probable defence can counter the said legal presumption as regards the date and time of execution and also the consideration by leading unimpeachable and confidence inspiring evidence or circumstances of the case. Under Article 129 of the Qanun-e-Shahdat Order, 1984, the Courts are empowered to entertain the presumption of certain facts to have happened in the common course of natural events and human conduct, which reads as under: "129. Court may presume existence of certain facts: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."In the present case, the appellant could not successfully rebut the presumption attached to the negotiable instrument in question by leading unimpeachable and confidence inspiring evidence rather it has emerged on record that he summersaulted from his earlier stance taken in application for stopping the payment, placed on record as Mark-F, wherein he stated that on 26.11.2011 while going to the Court of Magistrate, the suit cheque was lost and could not be found despite repeated searches; however, in the instant suit, the appellant took a plea that the cheque in dispute was stolen by the respondent, which is totally against his earlier stance. Even his suit seeking cancellation of the cheque was dismissed by the Court of competent jurisdiction due to non-affixation of the court fee and revisional filed against the same was also dismissed. Moreover, the application of the appellant for registration of the criminal with regards to pilferage of the cheque in question was also dismissed.
In judgment reported as Najaf Iqbal v. Shahzad Rafique (2020 SCM R 1621), the Supreme Court of Pakistan has invariably held that:- Presumptions mentioned in section 118 of the Negotiable Instruments Act (XXVI of 1881) are attached with a negotiable instrument unless proved contrary.
In the instant case it is an admitted position that the cheque was of the account and cheque book of the appellant. The case pleaded by him was that the cheque was dropped/lost, he reported the matter to the police through an application which is Exh.P.3. In the said application which was addressed to the Branch Manager of the Bank for the purposes of stopping the payment, the loss of whole cheque book of Account No. 2384 was reported and this document is admitted by the appellant-defendant. The cheque was dishonoured on its presentation on the ground of "insufficient funds" and "payment stopped by the drawer". Same was the statement of PW-2 Manager, MCB when appeared before the Court. Neither it is the statement of PW-2 nor mentioned on memorandum of refusal of cheque that the cheque does not contain signatures of the appellant-defendant nor suggested in the cross-examination to this witness that the cheque does not contain signatures of the defendant-appellant. So far as reliance of the learned counsel for the appellant SALAR's case (supra) is concerned, in that case the plaintiff filed a regular civil suit on the basis of a promissory note as a pauper. Subsequently he paid the court fee and his witness Ghulam Fareed contradicted the statement of his two earlier witnesses namely Hazrat Shah and Abdul Qayyum and it came on record that plaintiff was having no bank account and was not a man of means. Though the learned Single Judge of the Lahore High Court in the judgment reported as "Ghulam Murtaza v. Muhammad Rafi" (2020 MLD 772) has referred Salar's case supra but we do not agree with the interpretation of section 118 by the learned Judge, which is against the principles laid town in "Salar Abdur Rafuf v. Mst. Barkat Bibi" (1973 SCMR 332). The reliance of learned counsel for the respondent on "Rohitbai Jivanlal Patel v. State of Gujarat and another" (AIR 2019 Supreme Court 1876) and "Uttam Ram v. Devinder Singh Hudan and another"
(2019 (10) SCC 287) supports the version of the learned counsel for the plaintiff-respondent that the presumption was to be rebutted by the appellant and further that when the ground for dishonour of a cheque was "insufficiency of funds" and "stopped payment", there can be no presumption that cheque was not having signatures of the appellant. The defendant was having a choice to produce the Handwriting Expert when he disputed his signatures upon the cheque in dispute after the statement of PW-2 the Bank Manager. He opted not to produce him. This fact goes against him in the light of "Abdul Rasheed v. Fazal Ali Shah" (2016 SCMR 2163). Further the objection of the learned counsel for the appellant that plaintiff-respondent was obliged to prove the delivery of mobile cards and mobile sims has also no force when relationship of employee of the plaintiff-respondent was not denied and it was not denied that the cheque is of the account and cheque book of the appellant-defendant. The said pleadings were not necessary to be proved through evidence. So far as objection of learned counsel for the appellant that the proper issues were not framed, we are afraid that at this stage when the pleadings of the parties were in their knowledge and both the parties have led evidence of their own choice in the shape of oral as well as documentary, the objection of non-framing of proper issues is not relevant at this stage. Moreover, in another judgment reported as Muhammad Azizur Rehman v. Liaquat Ali (2007 SCMR 1820) it has been candidly held that:- ".............According to section 118 of the Act, until the contrary is proved, the presumption shall be made that every negotiable instrument was made or drawn for consideration. The appellant has not been able to establish on record through independent and cogent evidence that consideration of the promissory note has not been received by him.
7. This Court in the case of Muhammad Boota v. Fiaz Ahmed 1979 SCM R 465 while dealing with identical case observed as under:-- "Under section 118 of the Negotiable Instruments Act, it had devolved on the defendant to prove that the promissory note thus executed by him was without consideration. Apart from the cogent and consistent evidence led by the plaintiff to prove the payment of Rs.10,000 in cash by the plaintiff to the defendant as loan, the latter has miserably failed to discharge the onus of this issue resting on him. "
8. Similarly in the case of Haji Karim and another v. Zakir Abdullah 1973 SCMR 100 this Court held that:-- "Under section 118 of the Negotiable Instruments Act, 1881, there is an initial presumption that a negotiable instrument is made, drawn, accepted or endorsed for consideration. Although this presumption is a rebuttable presumption, yet the onus is on the person denying consideration to allege and prove the same. "
The respondent/plaintiff while appearing in the witness box as P.W.1 and producing corroborative oral evidence in the shape of P.W.2, P.W.3 and P.W.3 as well as documentary evidence Ex.P1 and Ex.P2 has successfully proved that the disputed cheque was issued to him by the appellant in lieu of borrowed amount and as observed above, the appellant has failed to rebut the same by leading solid, cogent and confidence inspiring evidence. In this view of the matter, there is no misreading and non-reading of evidence on record. The learned trial Court has construed law on the subject in an apt and judicious manner and there appears no illegality in the impugned judgment and decree warranting interference by this Court in exercise of appellate jurisdiction.
4. For the foregoing reasons and while placing reliance on the judgments supra the appeal in hand having no force and substance stands dismissed. No order as to the costs.