IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 27 of 2024 Decided on:20.03.2025 ____________________________________________________ Devi Singh ……….. appellant Versus Subhash Chand ………respondent ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the appellant : Ms. Mamta K. Bhatwan, Advocate, vice Mr. Brahama Nand Sharma, Advocate. For the respondent : Mr. Maan Singh, Advocate. ____________________________________________________ Bipin Chander Negi, Judge (oral) The appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 02-11-2023 passed by the learned District Judge, Kullu in Civil Appeal No. 13 of 2023. By the said judgment and decree, the Lower Appellate Court has upheld the judgment and decree dated 10.5.2023 rendered by the learned Civil Judge, Banjar, District in Civil Suit No. 124/19/2018. 2. The appellant before this Court was the defendant before the trial Court. The facts leading up to the present appeal are as follows: 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 2(i) The plaintiff (respondent herein) filed a suit for the recovery of ₹2,80,000/- against the defendant in the trial court. The plaintiff alleged that the defendant, who was well- known to him, had a friendly relationship with him. In March 2017, the defendant approached the plaintiff, stating that he needed money for personal use, and borrowed ₹2,80,000/-. The defendant assured repayment by December 2017. However, when the plaintiff demanded the amount in December 2017, the defendant delayed repayment on various pretexts. On 16.02.2018, the plaintiff again demanded the amount, and the defendant issued a cheque (No. 625870 dated 16.02.2018) for ₹2,80,000/- drawn on Punjab National Bank, Branch Aut, District Mandi, to discharge his liability. 2(ii) The plaintiff presented the cheque for encashment at his bank, Kangra Central Co-operative Bank, Branch Sainj, but it was dishonored on 27.02.2018 with the remark "insufficient funds." The plaintiff then issued a legal notice to the defendant on 19.03.2018, requesting payment of the amount. Despite receiving the notice, the defendant failed to make the payment and refused to admit the 3 plaintiff's claim. Consequently, the plaintiff filed the suit on 20.06.2018. 2(iii) The defendant contested the suit by filing a written statement, raising preliminary objections regarding the maintainability of the suit, lack of cause of action, suppression of material facts, and limitation. On merits, the defendant denied borrowing any money from the plaintiff or issuing any cheque to him. He alleged that the plaintiff had misused a misplaced cheque. According to the defendant, on 10.08.2017, while traveling from Kullu to Aut, his cheque books from Bank of Baroda and Punjab National Bank were misplaced in the Aut area. He lodged a police report (rapat) at Police Station Aut on 12.08.2017 regarding the loss. The defendant also claimed that he was never served with any notice by the plaintiff. He denied the remaining allegations in the plaint and sought the dismissal of the suit.In response, the plaintiff filed a replication reiterating the allegations in the plaint and refuting the defendant’s claims in the written statement. 3. On the pleadings of the parties, the following issues were framed before the learned trial Court on 11.12.2019:- 4 1. Whether the plaintiff is entitled for recovery of 2,80,000/- alongwith interest at the rate of 12 percent per annum, from March, 2017 till payment, as prayed for? OPP. 2. Whether the suit of the plaintiff is not maintainable; as alleged? OPD.. 3. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD. 4. Whether the suit of the plaintiff is barred by limitation, as alleged? OPD. 5. Relief. 4. After considering the evidence and hearing both parties, the trial court decided Issue No. 1 partly in favor of the plaintiff and Issues No. 2 to 4 in the negative. The court partly decreed the suit in favour of the plaintiff with costs.The trial court concluded that the plaintiff had established a case for the recovery of ₹2,80,000/- based on the evidence presented, including the original cheque (Ex.PW1/A), dishonor memo (Ex.PW1/B), legal notice (Ex.PW3/C), and postal receipt (Ex.PW3/D). The trial Court was of the view that presumption under Sections 118(a) and 139 of the Negotiable Instruments Act, 1881, applied, which presumes that a cheque is issued for the discharge of a legally enforceable liability unless proven otherwise. The defendant’s claim that the cheque was misused after being 5 lost was found unconvincing, as he admitted to not reporting the loss to his bank or taking any action against the plaintiff upon learning of the cheque’s presentation. Furthermore, the defendant admitted to signing the cheque. 5. The defendant, feeling aggrieved by the trial court’s judgment and decree, appealed on the grounds that the impugned judgment and decree were contrary to law, facts. Besides the aforesaid, it was contended that the trial court failed to properly appreciate the evidence, pleadings, and material on record, leading to a misinterpretation of the applicable legal provisions and an incorrect conclusion. Moreover, it was contended that the judgment was based on surmises and conjectures. On account of the aforesaid, the appellant/defendant prayed that the impugned judgment and decree be set aside, the appeal be accepted, and the plaintiff’s suit be dismissed with costs. 6. After due consideration of the record, the appellate court upheld the judgment of the trial court and dismissed the appeal. 7. Heard counsel for the parties. Perused the record. 6 8. Both the courts below have correctly concurrently held that the cheque in the case at hand i.e. Exhibit PW/1/A issued by the appellant/defendant in favour of the respondent/plaintiff raises a presumption under section 118(a) and 139 of the Negotiable Instruments Act 1881 that the same had been issued for discharge of a legally enforceable liability. Other than the aforesaid for the reasons stated the defence raised by the appellant/defendant qua the cheque book having been lost has rightly been rejected. 9. In view of the aforesaid, no question of law much- less a substantial question of law arises for consideration of the Court, therefore, the appeal is dismissed being devoid of any merit. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 20st March, 2025 tarun