KAPIL KUMARversusRAJ KUMAR

554                      [2022]REPORTS
               SUPREME COURT   13 S.C.R. 554              [2022] 13 S.C.R.


A                              KAPIL KUMAR
                                       v.
                                 RAJ KUMAR
                        (Civil Appeal No. 5854 Of 2022)
B                             OCTOBER 14, 2022
               [M. R. SHAH AND KRISHNA MURARI, JJ.]
             Negotiable Instruments Act, 1881 – ss. 4 and 118 – Promissory
      note – Appellant instituted recovery suit against respondent
      contending that the latter borrowed Rs. 1 lakh from him and also
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      executed a pro-note in favour of appellant – Respondent denied
      execution of pro-note and took the stand that no loan was taken by
      him – Trial court decreed the suit – Decree upheld by First Appellate
      Court – Second appeal allowed by High Court on ground that
      attesting witness to the pro-note was not examined and therefore,
D     content of the pro-note was not proved – Held: High Court erred in
      upsetting the findings of facts recorded by trial court and confirmed
      by First Appellate Court – Even the substantial question of law
      framed by the High Court cannot be said to be as such a question
      of law much less substantial question of law – On merits also, the
      signature of respondent on the pro-note was established and proved
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      and even execution of the pro-note was established – In the
      circumstances, non-examination of the witness to the pro-note cannot
      be held against the appellant – There is presumption of
      consideration in a negotiable instrument – Such presumption may
      be rebutted, however, no rebuttal evidence led by the respondent –
F     Impugned judgment of High Court accordingly unsustainable both
      on law as well as on facts – Code of Civil Procedure – s.100 –
      Second Appeal.
            Code of Civil Procedure – s.100 – Second Appeal – Unless
      concurrent findings recorded by the courts below are found to be
G     perverse, the same are not to be interfered with by the High Court
      u/s.100 CPC.
            Allowing the appeal, the Court
            HELD:1. There were concurrent findings of facts recorded
      by the Trial Court as well as the First Appellate Court on execution
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                                      554
                KAPIL KUMAR v. RAJ KUMAR                               555


of pro-note by the defendant in favour of the plaintiff. The said      A
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. Even the substantial question of law framed
                                                                       B
by the High Court cannot be said to be as such a question of law
much less substantial question of law. It appears that what was
considered by the High Court was whether the plaintiff has proved
the execution of pro-note and the receipt by leading cogent
evidence. The aforesaid can be said to be a question of facts and
cannot be said to be a question of law much less substantial           C
question of law. The High Court committed a very serious error
in upsetting the findings of facts recorded by the trial court
confirmed by the First Appellate Court on execution of pro-note
by the defendant in favour of the plaintiff. [Para 5.1][559-D-G]
       2. Even otherwise on merits also, the impugned judgment         D
of the High Court is unsustainable. 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
pronote. Even the execution of pro-note has been established by
the plaintiff by examining the deed writer-PW3. In view of the         E
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. It is noted that as per the provision
of Section 118 of the NI Act there is a presumption of
consideration in the negotiable instrument [Section 118(a)].           F
Though such presumption may be rebutted, however, no rebuttal
evidence is led by the defendant. Therefore, the High Court erred
in allowing the second appeal and quashing and setting aside the
decree passed by the Trial Court confirmed by the First Appellate
Court. [Paras 6 and 6.1][559-G-H; 560-A, B-D]
                                                                       G
      M.S. Narayana Menon alias Mani v. State of Kerala
      and Anr. (2006) 6 SCC 39 : [2006] 3 Suppl. SCR 124 –
      referred to.


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556             SUPREME COURT REPORTS                            [2022] 13 S.C.R.


A            Mirza Gorgani v. (Firm) Bhola Mal Nihal Chand AIR
             1934 Lahore 293 – referred to.
                                Case Law Reference
      [2006] 3 Suppl. SCR 124                 referred to              Para 4.3
B           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5854
      of 2022.
            From the Judgment and Order dated 05.08.2019 of the High Court
      of Punjab & Haryana at Chandigarh in RSA No. 1727 of 2016.
            Jayprakash Somani, Ms. Shobha Somani, Rainish Kumar,
C     Ms. Mamta Rani, Mohanty, Aqsha Shohar, Ms. Manju Jetley, Advs. for
      the Appellant.
             Bharat Bhushan, Adv. for the Respondent.
             The Judgment of the Court was delivered by
D            M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 05.08.2019 passed by the High Court of Punjab and
      Haryana at Chandigarh in Regular Second Appeal No. 1727 of 2016, by
      which, the High Court has allowed the said appeal preferred by the
E     original defendant and has set aside the judgment and order passed by
      the First Appellate Court as well as the Trial Court decreeing the suit for
      recovery of Rs. 1,36,550/- the original plaintiff has preferred the present
      appeal.
             2. The appellant herein – original plaintiff instituted the suit against
F     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 (exhibit P1) and receipt (exhibit P2) 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
G     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.
          2.1 The plaintiff examined four witnesses, namely, PW1 – Kapil
      Kumar (plaintiff), PW2 – Yashpal Chand (handwriting and finger print
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                   KAPIL KUMAR v. RAJ KUMAR                                     557
                         [M. R. SHAH, J.]

expert), PW3 – Satish Kumar (deed writer) and PW4 – Sat Narian                  A
(clerk to prove legal notice).
      2.2 The defendant examined three witnesses, namely, DW1 –
Dinesh Kumar (clerk cum cashier, SBI to prove the deposit of amount in
bank account), DW2 – Raj Kumar (defendant) and DW3 – Phool Singh
s/o Puran Singh (father of plaintiff).                                          B
       2.3 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, the          C
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.
                                                                                D
      2.4 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court the original plaintiff has preferred
the present appeal.
       3. Learned counsel appearing on behalf of the appellant – original
plaintiff has vehemently submitted that in the facts and circumstances          E
of the case the High Court has erred in upsetting and/or quashing the
concurrent findings recorded by both the courts below on execution of
the pro-note by the defendant in favour of the plaintiff, in exercise of
powers under Section 100 of CPC.
      3.1 It is submitted that when the findings on facts were recorded         F
by both the courts below on execution of pro-note by the defendant in
favour of the plaintiff which as such were on appreciation of evidence
on record, more particularly, the testimony of PW3, the same was not
required to be interfered with by the High Court in exercise of powers
under Section 100 of CPC.
                                                                                G
       3.2 It is submitted that if the deposition of PW3 is considered as a
whole, it is apparent that PW3 – deed writer has specifically stated that
when he asked the defendant as to whether he had received the money
then the defendant admitted the receipt of money. It is submitted in that
view of the matter and the deposition of PW1 – plaintiff and the deposition
of deed writer – PW3 the execution of pro-note and even the content of          H
558             SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A     payment of the consideration mentioned in the pro-note has been
      established and proved. Therefore the High Court has committed a very
      serious error in allowing the second appeal and consequently quashing
      and setting aside the judgment and decree passed by the learned Trial
      Court confirmed by the learned First Appellate Court.
B           3.3 It is further submitted that even the signature on the pro-note
      of the defendant has been established and proved by the plaintiff by
      examining handwriting expert – PW2.
             3.4 Making the above submissions and relying upon Section 4 of
      the Negotiable Instruments Act, 1881 (NI Act) and the findings recorded
C     by the learned Trial Court as well as the learned First Appellate Court, it
      is prayed to allow the present appeal and restore the judgment and order
      passed by the learned Trial Court confirmed by the learned First Appellate
      Court.
             4. While opposing the present appeal the learned counsel appearing
D     on behalf of the original defendant has vehemently submitted that as the
      plaintiff has failed to prove the execution of pro-note by examining the
      witness to the pro-note the High Court has rightly quashed and set aside
      the decree passed by the learned Trial Court confirmed by the learned
      First Appellate Court.

E            4.1 It is vehemently submitted by the learned counsel appearing
      on behalf of the defendant that as held in the case of Mirza Gorgani
      Vs. (Firm) Bhola Mal Nihal Chand; AIR 1934 Lahore 293 (2)
      burden to prove the execution of promissory note is on the plaintiff, even
      if signatures are admitted and execution of document is denied.

F           4.2 It is further submitted that even the plaintiff has to prove the
      consideration which in the present case plaintiff has failed to prove. It is
      submitted that in the facts and circumstances of the case presumption
      under Section 118 of the NI Act shall not be attracted as the execution
      of pro-note has not been proved.
              4.3 It is submitted that as rightly observed by the High Court non-
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      examination of witness to the pro-note is fatal to the case of the plaintiff.
      It is submitted that as observed and held by this Court in the case of
      M.S. Narayana Menon alias Mani Vs. State of Kerala and Anr.;
      (2006) 6 SCC 39 in the case of negotiable instrument in case of
      withholding of relevant evidence adverse inference can be drawn against
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                  KAPIL KUMAR v. RAJ KUMAR                                     559
                        [M. R. SHAH, J.]

the person and presumption can be rebutted on the bases of                     A
preponderance of probabilities.
      4.4 Making the above submissions it is prayed to dismiss the present
appeal.
      5. We have heard learned counsel appearing on behalf of the
respective parties at length and have gone through the judgment and            B
findings recorded by the learned Trial Court while decreeing the suit
confirmed by the learned First Appellate Court. We have also gone
through the impugned judgment and order passed by the High Court.
We have also re-appreciated the entire evidence on record including the
deposition of relevant witnesses examined by both the sides.                   C
       5.1 At the outset it is required to be noted that as such 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        D
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. Even the substantial question of law framed
by the High Court cannot be said to be as such a question of law much
less substantial question of law. From the impugned judgment and order
passed by the High Court it appears that as such no specific substantial       E
question of law seems to have been framed by the High Court. However,
it appears that what was considered by the High Court was whether the
plaintiff has proved the execution of pro-note and the receipt by leading
cogent evidence. The aforesaid can be said to be a question of facts and
cannot be said to be a question of law much less substantial question of       F
law. Therefore, as such 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.
      6. Even otherwise on merits also the impugned judgment and order         G
passed by the High Court is unsustainable. 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
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560              SUPREME COURT REPORTS                      [2022] 13 S.C.R.


A     examining the deed writer - PW3. Now so far as the consideration
      mentioned in the pro-note is concerned there may be some minor
      contradictions in the depositions of PW1 and PW3. However, at the
      same time if the deposition of PW3 as a whole is considered, in the
      cross-examination it has come out that when the deed writer asked the
      defendant that he has received the consideration, he has admitted the
B
      same.
             6.1 In view of the above 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 NI
C     Act there is a presumption of consideration in the negotiable instrument
      [Section 118(a)]. 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
D     Trial Court confirmed by the learned First Appellate Court.
             7. In view of the above and for the reasons stated above the
      impugned judgment and order passed by the High Court is unsustainable
      both, on law as well as on facts and the same deserves to be quashed
      and set aside and the same is accordingly quashed and set aside. The
E     judgment and decree passed by the learned Trial Court decreeing the
      suit confirmed by the learned First Appellate Court is hereby restored.
      The present appeal is accordingly allowed. No costs.

      Bibhuti Bhushan Bose                                       Appeal allowed.
      (Assisted by : Rakhi, LCRA)
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