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TMI Blog2016 (8) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of any person who had issued the cheques in the circumstances pleaded by the appellants. The appellants have failed to render any satisfactory explanation for not having so written to the respondent. We conclude by holding that the respondent would be entitled to the benefit of the presumption in his favour raised under Section 118 of the NI Act, 1881 and since the presumption has not been rebutted, notwithstanding the respondent having failed to prove consideration being paid as claimed by him he would be entitled to the decree passed by the learned Single Judge which we find is with interest @ 9% per annum simple. - RFA(OS) 2/2016 - - - Dated:- 29-8-2016 - MR. PRADEEP NANDRAJOG MS. PRATIBHA RANI JJ. Appellants Represented by: Mr. N.S. Dalal, Advocate with Mr. Amand Mudgal and Mr. D.P. Singh, Advocates Respondent Represented by: Mr. V.K. Teng, Advocate PRADEEP NANDRAJOG, J. 1. Rana Inderjit Singh, the respondent sued the appellant No.1 : Kembiotic Laboratory and its three partners : appellants No.2 to 4 as partners thereof on the plea that in the year 2001 appellants No.2 to 4 offered to him to collaborate with their business on 50% shareholding basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheques were obviously to return the sum of ₹ 53.5 lacs received in the name of respondent No.1, which under the circumstances had to be treated as a loan because the understanding that defendants No.2 to 4 would collaborate with him in the business run under the name and style of appellant No.1 with his share being 50% was not given effect to. The cheques when presented for encashment were returned dishonoured. 3. In the joint written statement filed by the appellants they denied any amount received by appellant No.2 from Rana Inderjit Singh but admitted that the cheques were issued. In para 6 of the preliminary objections it was denied that there was any discussion for Rana Inderjit Singh to do business with them on 50% shareholding basis. However, in paragraph 11 of the preliminary submissions, explaining the circumstances under which the cheques were issued it was pleaded that Rana Inderjit Singh offered to invest ₹ 53.5 lacs in the business of the defendants and to give security for the amount the defendants would receive from Rana Inderjit Singh the cheques in question were issued. It was pleaded that Rana Inderjit Singh never invested ₹ 53.5 lacs. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anuary, 2004, no letter or any notice was ever written by the defendants to the plaintiff that in this entire period and for this long period plaintiff is illegally holding on to the subject cheques and the subject cheques should be returned by the plaintiff to the defendants because as per the defendants no amount was paid by the plaintiff to the defendants and the cheques were thus allegedly given only as security. The very fact that no communication whatsoever was ever issued by the defendants to the plaintiff for return of the cheques shows that the cheques were given for a valuable consideration and which valuable consideration was the amount of ₹ 53.50 lacs. Clearly therefore defendants have failed to prove that the plaintiff retained the cheques with himself although allegedly as per the defendants plaintiff did not give any amount to the defendants under the subject cheques which were given as security. Defendants have failed to discharge the onus upon them of issue No.3 that the plaintiff fraudulently withheld the cheques and as is the case of the defendants as per the written statement. In view of the above, issue Nos.2 and 3 are held in favour of the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the defendant could lead to establish that there was no consideration. Surely the defendant is not expected to conceive all kinds of considerations and then say that none were received. Therefore, the resolution of the practical difficulty would have to be found in the Indian Evidence Act, 1872 and in particular Sections 101 to 104 thereof. 10. Section 3 deals with proved, disproved and not proved. Burden of proof is used in two senses. Firstly, with reference to the matter arising out of the pleading, the burden casts; and secondly as to who has to first prove a particular fact. The former is known as legal burden and it never shifts. The latter is the evidentiary burden and it shifts from one side to the other as was explained by the Supreme Court in the decision reported as AIR 1961 SC 1316 Kundan Lal Vs. Custodian Evacuee Property. Legal burden finds its reflection in Section 101 of the Evidence Act and the evidentiary burden is reflected in Sections 102 of the Evidence Act. Section 103 amplifies Section 101 regarding proof of a fact and Section 104 deals with the person who has to give evidence. 11. Presumptions may be of fact or of law. Presumptions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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