Ch. Muhammad Iqbal, J:- Through this regular first appeal, the appellant has challenged the validity of the judgment & decree dated 16.03.2024 passed by the learned Additional District Judge, Faisalabad who decreed the suit under Order XXXVII C.P.C filed by the respondent for recovery of Rs.25,00,000/- on the basis of a cheque.
2. Brief facts of the case as contended by learned counsel for the appellant are that the respondent/plaintiff filed a suit under Order XXXVII C.P.C for recovery of Rs.25,00,000/- on the basis of a cheque and contended that plaintiff's brother is friend of the appellant/defendant and defendant was doing business with the name & style of Malik Flour Mill. The appellant/defendant requested the respondent/plaintiff for a loan of Rs.50 lac and promised to return the same within six months. The respondent/ plaintiff arranged Rs.25 lac from her relatives and handed over the same to the appellant/defendant on 08.01.2017 in the presence of witnesses Muhammad Akram and Muhammad Sagheer. In August, 2017, the respondent/plaintiff asked the appellant/defendant to return the loan amount upon which he issued cheque in question amounting to Rs.25 lac. The respondent/plaintiff presented the cheque for encashment but it was returned with the memo slip which resulted into filing the suit. The respondent/plaintiff also lodged a criminal case [FIR No.615/2018 under Section 489-F PPC at Police Station Batala Colony, Faisalabad] against the appellant/defendant. The appellant/defendant was initially proceeded ex-parte but he subsequently appeared before the trial Court and filed petition for leave to appear which was allowed and thereafter he filed contesting written statement and denied the issuance of any cheque in favour of the respondent/plaintiff. The trial Court framed issues, recorded evidence and decreed the suit vide judgment & decree dated 16.03.2024. Hence, this appeal.
3. Arguments heard. Record perused.
4. The controversy involved in this case is centered upon issue No.1 which is reproduced as under: "Whether the plaintiff is entitled to get a decree for recovery of amount to the tune of Rs.25,00,000/- on the ground mentioned in the body of plaint? OPP"
The respondent/plaintiff/Sabuhi Nazi (P.W.1) deposed that: "That the defendant was close friend of my brother namely Saddat Masood. The defendant was used to deal in business of rice with the name and style of Malik Flour Mills, situated at Gajjumata, Lahore. There were family terms with the defendant. In the month of January, 2017, the defendant came to me and asked for loan an amount of Rs.50,00,000/- for six month. Due to family terms, I have arranged an amount of Rs.25,00,000/- from relatives and handed over the same to the defendant as loan in presence of relatives and witnesses namely Muhammad Akram son of Noor Muhammad, Muhammad Ehtisham son of Muhammad Anwar and Muhammad Sagheer son of Muhammad Siddique. In the month of August 2017, 1 demanded an amount of Rs.25,00,000/- but the defendant asked for some more time and for payment of supra amount, issued one cheque bearing No.10005904 dated 02.04.2018 of Rs.25,00,000/- of Bank Al Habib, Khananau Branch, Lahore which was presented/deposited in my account and was bounced on 03.04.2018 due to photo account. Thereafter, I again asked the defendant for payment of supra loan amount but he made lame excuses. I preferred an application for lodging the FIR which was accepted and an FIR was lodged against the defendant."
During cross examination, she deposed that: "It is correct that in para No.2 of the plaint, I mentioned that defendant is friend of my brother. I have only one brother and I have not mentioned his name in the plaint...It is correct that my brother is not witness of suit....It is correct that neither I mentioned phone number of defendant nor mine for conversation of loan...I never said that loan amount which was paid to the defendant was in my bank account.... It is correct that my name is not mentioned over the disputed cheque, rather word "Cash" in urdu is mentioned upon the cheque. Confronted with original where, it is so mentioned. The original dishonor slip is before me in criminal file, wherein objection of photo account is mentioned.... It is correct that objection for dishonouring cheque is only of photo account and there is no mentioning of insufficient funds or any other reason. I do not remember the date mentioned on the cheque. I presented the cheque on 3rd or 4th of the month of May...I informed the defendant regarding dishonour of cheque at about 11:00 A.M. At the same time while standing in the bank, I telephonically contacted with the defendant. I have not annexed any proof of contacting defendant prior to or after production of cheque...It is correct that I have not mentioned denomination of currency notes in the plaint and names of relative from whom I borrowed amount to pay the defendant. It is correct that I have not attached proof of my financial status with the plaint...Defendant is on bail in my criminal case. I do not know that defendant has been acquitted in said criminal case. I have not preferred any appeal against the acquittal of the defendant."
Maher Muhammad Akram (P.W.2) during his cross examination deposed that: "The defendant demanded loan amount of Rs.50,00,000/- in the year 2016 and the defendant gave Rs.25 lacs in January 2017. The disputed cheque was not given on the same day; rather, same was given in August, 2017.
My amount Rs. 02 lac was also included in the disputed amount... The proof regarding my financial status is not part of file... When cheque was handed over to the plaintiff, I alongwith plaintiff and her husband namely Muhammad Siddique, Sumera Bibi, Muhammad Saghir and Muhammad Ihtisham were present at Nishtar Colony, Lahore. I do not remember house number of defendant. .... It is correct that signature of Salamat Ali is with blue ink while date of cheque is black ink and mentioning of cash amount is with dark blue ink."
Sumera (P.W.3) examination in chief recorded but her evidence was later on given up by the respondent/plaintiff.
Hashim Ismail (P.W.4), Manager Operation HBL deposed during his cross examination that: "Cheque Ex-P1 bears the word "Cash" according to our Banking Rules and, therefore, this type of cheque can be encashed by any person who hold or possess the same such cheque. According to Ex-P2, cheque was dishonoured due to "photo account". Photo account means who issued cheque is himself bound to appear and encahsed it. There was no reason of dishonour of Ex-P1 due to insufficient balance. ....It is correct that Ex-P1 was not presented before me. It is also correct that I have not prepared Ex-P2. It is also correct that I was not present at the time of dishonourment of Ex-P1 and preparation of Ex-P2."
Syed Baqar Ali Zaidi, Manager Operations Bank Al-Habib, Kahna Nau (P.W.5) during his cross examination deposed that the dishonour slip is not in his handwriting; that it is correct that photo account cannot be encashed without personal appearance of account holder.
5. The appellant/defendant himself appeared as D.W.1 and deposed that: "Stated that I am permanent resident of above address and I never resided or had any business in District Faisalabad. First time, I brought to Faisalabad when arrested in case FIR No.615/2018 P.S Batala Colony, Faisalabad which was got registered by the plaintiff. In said case I got recorded my statement before the police that I do not know the plaintiff, I have no business relations with said lady and never I handed over cheque-in-dispute to the plaintiff, rather the said cheque was obtained by one Malik Pervaiz Ali s/o Allah Ditta at Lahore as security. As I obtained loan amounting to Rs.30,00000/-from Pervaiz Ali and got signed three stamp papers therefore, he obtained said cheque forcefully and handed over the same to the plaintiff or someone else despite of receiving Rs.37,00000/- as reimbursement of loan, I do not know how plaintiff obtained my cheque. The said Malik Perviz Ali alongwith two other persons namely Nizam Din Lumberdar and Muhammad Ramzan residents of Gajjumatta had joined the investigation and they remained failed to prove anything against me for issuing cheque-in-dispute to the plaintiff. I have instituted a suit for cancellation of cheque-in-dispute which is pending adjudication in civil Court at Lahore for arguments, where the plaintiff has been appearing through her counsel. Above said cheque is pertaining to photo account which cannot be encashed without my presence, Malik Pervaiz Ali had handed over the cheque with malafide intention and fraud to the plaintiff and the cheque was in blank form without mentioning of any name, date or amount. .... I have been acquitted in the above said FIR in September, 2020 from the Court of Area Magistrate P.S Batala Colony, Faisalabad. I have no concern business relation with the plaintiff or her brother nor there is any outstanding any amount towards me. Litigation among Pervaiz Ali, his brother Zahid Ali and me is pending adjudication in Lahore regarding guarantee cheques & house and an F.I.R No.3028/2019 P.S. Kahna Lahore has been cancelled while in other F.I.R I have been bailed out."
The appellant/defendant also produced Salamat Ali Chishti (D.W.2) in support of his version.
Despite lengthy cross examination, both the witnesses remained firm on their stance.
6. The respondent/plaintiff stated that the appellant/defendant is close friend of her brother but she did not mention the name of her brother in the plaint nor produced her brother as a witness.
Further, in paragraph No.5 of the plaint she stated that she arranged Rs.25 lac from her relatives and gave to the appellant/defendant but she did not mention the names of the relatives from whom she arranged. The respondent/plaintiff mentioned that she gave amount to the appellant/defendant in the presence of Muhammad Akram, Muhammad Ahtisham and Muhammad Sagheer but the respondent/plaintiff only produced Muhammad Akram in the witness box. The respondent/plaintiff neither produced her real brother to prove her claim of his friendship with the appellant/defendant nor produced Muhammad Ahtisham and Muhammad Sagheer which flaw amounts to withholding of the best evidence. Thus it would be legally presumed that had the said witnesses produced in the evidence, they would have deposed against the respondent/plaintiff, as such, presumption under Article 129 (g) of Qanun-e-Shahadat Order, 1984 clearly operates against her. Reliance is placed on the cases of Sughran Bibi Vs. Mst. Aziz Begum & 4 Others (1996 SCMR 137) and Jehangir Vs Mst. Shams Sultana & Others (2022 SCMR 309), Ghulam Fareed (deceased) through his L.Rs., & Others Vs Daulan Bibi (2024 SCMR 202) and Sher Ayaz Khan alias Sheraz Khana, through L.Rs. & Others Vs Gul Najeeb Khan (2025 SCMR 380).
7. Even otherwise, in the plaint as well as evidence, respondent/plaintiff stated that cheque was dishonoured but the record is otherwise as the cheque was returned due to non-presence of appellant/defendant before the Bank Officer and such kind of return of cheque cannot be declared as dishonor. The word dishonour means "to refuse to accept or pay a draft or to pay promissory note when duly presented. An instrument is dishonoured when necessary or optional presentment is duly made and due acceptance or payment is refused, or cannot be obtained then the prescribed time, or in the case of bank collection, the instrument is reasonably returned by midnight deadline; or presentment is excused and instrument is not duly accepted or paid".
Admittedly, the cheque was not presented as prescribed manner and the appellant was not present in the bank when the alleged cheque was presented. Even, the memo of return does not fall in the definition of dishonour of cheque. The cheque was never dishonoured, as such, respondent/plaintiff has no cause of action to file suit against the appellant/defendant.
8. Further, the State Bank of Pakistan in its Circular No.10 dated 29.03.2003 has prescribed following procedure for opening of a 'photo account' in case of an illiterate individual: "(iv) In case of illiterate person, a passport size photograph of the new account holder besides taking his right and left thumb impression on the specimen signature card."
In compliance of the aforesaid direction of the State Bank of Pakistan, all the commercial banks issued Terms & Conditions for opening of 'photo accounts' and in this regard, for reference, the relevant portion of Terms & Conditions Governing the Account issued by the commercial bank [Bank Alfalah] is reproduced as under: "1.5 Opening of photo accounts is subject to provision of proper identification duly supported by two attested passport size photographs besides taking customer's thumb impression on the SS card. Photo account cannot be operated unless the customer comes to the Bank and puts his/her thumb impression on the cheque in the presence of Bank Officer."
Record transpires that the appellant/defendant had a 'photo account' and the respondent/plaintiff did not follow the procedure prescribed for operating of a 'photo account' while presenting the cheque in question at the concerned bank.
9. Another aspect of the matter is that the cheque in question was not issued in favour of the respondent/plaintiff rather it bears the word "cash" which, as per the stance of the bank authorities, means that any person holding the cheque can receive the amount of the cheque. It is also an admitted fact the writing on the cheque in question has been made in three different inks which creates serious doubts regarding the genuineness of the cheque in question.
10. Even otherwise, the appellant/defendant has been acquitted in the trial of criminal case [FIR No.615/2018 under Section 489-F PPC at Police Station Batala Colony, Faisalabad] and admittedly the respondent/plaintiff has not filed any appeal against that acquittal order.
11. The respondent/plaintiff failed to prove lending of an amount of Rs.25,00,000/- to the appellant/defendant against cheque in question through concrete, solid and trustworthy evidence, as such the claim of the respondent/plaintiff cannot be granted. Reliance in this regard is placed on a recent pronouncement of the Hon'ble Supreme Court of Pakistan cited as Mehr Noor Muhammad Vs. Nazir Ahmad (PLD 2024 SC 45).
12. In view of above, it can conveniently be observed that the respondent/plaintiff miserably failed to prove the issue No.1 but the trial Court by committing misreading and non-reading of the evidence decided this issue in favour of the respondent/ plaintiff and against the appellant/defendant as such these findings of the trial court are not sustainable in the eyes of law which are hereby reversed and this issue is decided against the respondent/plaintiff and in favour of the appellant/defendant. Reliance is placed on the case titled as Nazim-ud-Din and Others v.
Sheikh Zia-Ul-Qamar and Others (2016 SCMR 24).
13. Resultantly, this appeal is allowed, the judgment & decree dated 16.03.2024 passed by the trial Court is set aside resultantly the suit for recovery filed by the respondent is dismissed. No order as to costs.