Supreme Court

Kapil Kumar vs Raj Kumar

MANU/SC/1340/2022

14.10.2022

Criminal

Unless the concurrent findings recorded by the lower courts were found to be perverse, the same are not required to be interfered with by the High Court

The Appellant– original Plaintiff instituted the suit against the Respondent – original defendant for recovery of Rs. 1 lakh. It was the case on behalf of the Plaintiff that, the Defendant has borrowed a sum of Rs. 1 lakh from him on 29.06.2007 and has also executed a pro¬note and receipt in favour of the Plaintiff. The Defendant denied the execution of pro¬note and took the stand that no loan was taken by the Defendant and in fact the transaction was in between the father of the Plaintiff and the Defendant had paid the whole amount borrowed by him from the father of the Plaintiff. The learned Trial Court framed the relevant issues.

On appreciation of evidence, the learned Trial Court believed the execution of pro¬note executed by the defendant in favour of the plaintiff and consequently decreed the suit. The appeal filed by the defendant before the learned First Appellate Court came to be dismissed. In the second appeal under Section 100 of Code of Civil Procedure, 1908 (CPC), the High Court has interfered with the concurrent findings recorded by both the courts below on execution of the pro¬note by the defendant in favour of the plaintiff, solely on the ground that attesting witness to the pro¬note has not been examined therefore, the content of the pro¬note has not been proved and consequently has allowed the second appeal. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court the original plaintiff has preferred the present appeal.

There were concurrent findings of facts recorded by the learned Trial Court as well as the learned First Appellate Court on execution of pro¬note by the defendant in favour of the plaintiff. The said findings were on appreciation of entire evidence on record. Therefore, unless the concurrent findings recorded by the courts below were found to be perverse, the same were not required to be interfered with by the High Court in exercise of powers under Section 100 of CPC. The High Court has committed a very serious error in upsetting the findings of facts recorded by the learned Trial Court confirmed by the learned First Appellate Court on execution of pro¬note by the defendant in favour of the plaintiff.

The signature of the Defendant on the pro¬note has been established and proved by the Plaintiff by examining the handwriting expert – PW2. No contrary evidence has been led by the defendant to disprove his signature on the pro¬ note. Even the execution of pro¬note has been established by the plaintiff by examining the deed writer PW3.

In view of the facts and circumstances of the case emerging from the evidence on record, non-examination of the witness to the pro¬note cannot be held against the plaintiff. At this stage, it is required to be noted that as per the provision of Section 118 of the Negotiable Instruments Act, 1881 (NI Act), there is a presumption of consideration in the negotiable instrument. It is true that such presumption may be rebutted. However, no rebuttal evidence is led by the defendant. Under the circumstances also, the High Court has erred in allowing the second appeal and quashing and setting aside the decree passed by the learned Trial Court confirmed by the learned First Appellate Court. The impugned judgment and order passed by the High Court is set aside. Appeal allowed.

Tags : Pronote Execution Proof

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