THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO SECOND APPEAL No.607 of 2011 Date: 23-07-2014 Between :- A.Sreenivasulu.
… Appellant.
And M.Narayana.
… Respondent.
Counsel for the appellant : Sri G.Nageshwara Rao Counsel for respondent : Sri K.Maheswara Rao This Court delivered the following:-
THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO SECOND APPEAL No.607 of 2011 JUDGMENT:
Heard both sides.
2. This Second Appeal is filed challenging the judgment and decree dt.15-02-2010 in A.S.No.47 of 2009 of the Judge, Family Court-cum-Additional District and Sessions Judge, Anantapur confirming the judgment and decree dt.20-08-2008 in O.S.No.152 of 2005 of the Senior Civil Judge, Anantapur.
3. The appellant herein is defendant in the suit. The suit was filed by respondent/plaintiff for recovery of a sum of Rs.3,90,000/- from the appellant/defendant on the ground that a cheque bearing No.948395 dt.22-09-2004 (Ex.A-1) for the said sum issued to plaintiff by defendant drawn on Corporation Bank, Anantapur was dishonoured.
4. The plaintiff contended that the defendant is a registered Contractor and that the plaintiff is a sub-contractor under defendant; that defendant issued a cheque for Rs.3,40,000/- to plaintiff, which was honoured; but the cheque Ex.A-1 issued by defendant for Rs.3,90,000/- was dishonoured on the ground that there were insufficient funds in his account; that he issued a legal notice on 10-12-2004 and then filed the suit, since defendant had not paid any amount.
5. The defendant filed a written statement stating that he is a Contractor but denying that plaintiff is his Sub-Contractor. He contended that plaintiff had engaged a JCB machine at the work spot belonging to one K.Nageswara Rao and defendant had given a cheque for Rs.3,17,000/- in favour of said Nageswara Rao at the instance of plaintiff; another amount of Rs.4,85,000/- was paid to one Jayaram in respect of another work; although he did issued the cheque Ex.A-1 to plaintiff, he contended that it was later found on calculations that Nageswara Rao was entitled to Rs.3,17,000/- and so the cheque for Rs.3,17,000/- was given to Nageswara Rao; on the same day another cheque for Rs.4,85,000/- was given to Jayaram; that an amount of Rs.35,000/- due to plaintiff was adjusted and that was why the cheque for Rs.3,45,000/- was given to plaintiff which had been honoured. He contended that no amount beyond Rs.3,45,000/- was due to plaintiff; that plaintiff had promised to return the cheque Ex.A-1 for Rs.3,95,000/- but without returning it, filed the present suit.
6. By judgment and decree dt.20-08-2008, the trial Court decreed the suit. The trial Court held that the defendant admitted that he issued the cheque Ex.A-1 to plaintiff and the same was dishonoured; that plaintiff had executed some works for defendant, although there is no material available on record as to the quantum of work executed by plaintiff; if there is any written agreement between plaintiff and defendant, it would have revealed the quantum of work entrusted to plaintiff and the amount payable to plaintiff by defendant; but there is no such written agreement; and although the defendant is an official Contractor and would be maintaining the accounts, he did not file them. It held that in view of the presumption contained in Sections 139 and 118 of the Negotiable Instruments Act, 1881 (for short ‘the Act’), it can he said that the cheque Ex.A-1 was supported by consideration. It also held that defendant had not chosen to examine Nageswara Rao to prove that amount paid to Nageswara Rao was at the instance of plaintiff. It also noticed that defendant himself admitted that he owed Rs.6,33,000/- to plaintiff and since he paid Rs.3,45,000/- to plaintiff, the defendant did owe to plaintiff the balance amount and thus Ex.A-1 was supported by consideration.
7. Challenging the same, A.S.No.47 of 2009 was filed by defendant. The lower appellate Court confirmed the findings of the trial Court. In view of the admission that he issued Ex.A-1 and his inability to rebut the presumption under Section 139 and 118 of the Act, it held that Ex.A-1 cheque was supported by consideration. It held that defendant has not placed any material to discharge the burden cast on him to prove that Ex.A-1 cheque was not supported by consideration. It held that the accounts of the defendant were not produced and in view of the admission of defendant that he owed Rs.6,33,000/- to plaintiff and he paid only Rs.3,45,000/-, the balance amount is due. It further held that in the annexure filed along with written statement, the defendant had stated that the value of work done by him was only Rs.8,31,121/-, but in cross- examination he admitted that he received a sum of Rs.11,59,497/- on 22-09-2004 and this discrepancy has not been explained. It also noted that the payment of Rs.4,85,000/- to D.W.2 by way of a cheque by defendant was not related to the work in question. Although defendant sought to examine the Nageswara Rao by filing application under Order XLI Rule 27 CPC, the said application was rejected by the lower appellate Court on the ground that no evidence was placed before it to show that the said Nageswara Rao was out of station while the suit was pending before it.
8. Challenging the same, this Second Appeal is filed.
9. It is an admitted fact that defendant had issued a cheque for Rs.3,90,000/- to plaintiff. The defendant contended that later he had issued a cheque for Rs.3,40,000/- to plaintiff, but the plaintiff did not return Ex.A-1 cheque to him and then filed the suit. According to him, no amounts are payable to plaintiff beyond Rs.3,45,000/-. He further contended that after issuance of Ex.A-1 cheque, certain calculations were made and certain events occurred which made him to issue the other cheque for Rs.3,45,000/- which has been honoured and the plaintiff cannot be allowed to recover any further amount under Ex.A-1.
10. There is presumption under Sections 139 and 118 of the Act as to passing of consideration. Of course, it is a rebuttable presumption. The burden is on the defendant to establish that the issuance of Ex.A-1 is not supported by consideration. In the facts and circumstances of the case, it was for him to establish that full payment was made to plaintiff for the works done by him for defendant by producing the accounts, which he did not do.
Moreover, he admitted that he owed Rs.6,33,000/- to plaintiff, and the evidence on record indicates that only Rs.3,45,000/- was paid to plaintiff by defendant. Therefore, the balance continues to be due. Therefore, it cannot be said that Ex.A-1 cheque is not supported by consideration. Although the defendant had contended that payment of Rs.3,17,000/- was made to one Nageswara Rao at the instance of plaintiff, he did not examine the said Nageswara Rao in the trial Court and he did not prove that the said Nageswara Rao was out of station through out the pendency of suit in the trial Court in order to allow the examination of said Nageswara Rao at the first appellate stage under Order XLI Rule 27 CPC.
11. In this view of the matter, I do not see any error in the concurrent findings of both the Courts below. There is also no question of law much less any substantial question of law for consideration in this Second Appeal.
12. Therefore, the Second Appeal fails and it is dismissed. No costs.
13. As a sequel, miscellaneous applications, if any, pending in this appeal shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 23-07-2014 Vsv/*