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TMI Blog2021 (7) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... cheques will not sustain and is discarded. The plaintiff has established before the trial court that the cheques on presentation for encashment were bounced and the factum of dishonour was duly informed to the defendant by serving lawyer notices. Strictly no materials are forthcoming to establish any repayment towards the interest or the principal sum borrowed. The plaintiff has tendered oral evidence to establish his claim for realisation of money. He has also produced relevant documentary evidence to justify his claim. In the case on hand the specific stand of the defendant was that dates have not been written in the cheques and the plaintiff has put it prior to presentation of those. The plaintiff has a contra claim. Even if the defendant's version is accepted as true, the filling up of the dates in an otherwise filled and signed cheque, not being material alteration, will not invalidate it. The plaintiff being the holder of the cheques undoubtedly has lawful authority to fill the blank entry under Section 20 N.I. Act - A scrutiny of the evidence on record convinces this Court that the trial court had a true and proper appreciation of evidence and cannot be found fault ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and raising contentions of his own. Admittedly a loan of Rs. 4,75,000/- was availed by him from the plaintiff and interest at the rate of 60% was paid to the plaintiff till August, 2010. In the month of April 2010 a sum of Rs. 2,00,000/- was given to credit towards the principal sum borrowed. At the time of availing the loan 6 signed cheque leaves for double the loan amount availed, two signed blank stamp papers, 2 signed unwritten white papers and the original title deed with the prior deed of the property belongs to the defendant were also given to the plaintiff as security for the loan availed. Interest was defaulted after August 2010. Without crediting the amount paid by him towards principal and interest, the plaintiff presented the cheque leaves after putting dates thereon. The plaintiff had also caused the defendant to hand over a debt acknowledgement letter in a blank signed stamp paper to him at the relevant time when the loan was availed. The defendant approached the plaintiff and demanded to credit the amount already paid by him towards the principal sum and interest and the plaintiff was amenable for that. The defendant had also agreed to repay the outstanding dues tow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments after receiving six cheques, to a man who was already in default. According to him, the defendant had borrowed only Rs. 4,75,000/- from the plaintiff and at the relevant time itself six signed undated cheques had been given as security and since Rs. 2,00,000/- and interest till August 2010 stand repaid, credit of that must be granted and therefore trial court would not have accepted the version of PW 1 in that line. The trial court ought to have passed the judgment to the extent of the balance sum. According to the learned counsel when execution stands denied by the defendant, the plaintiff ought to have adduced cogent and reliable evidence to establish it, in discharge of his burden. According to the learned counsel, cheques were given without dates being put in it and therefore, putting the dates in it by the defendant itself tantamount to material alteration. The learned counsel has also relied on dictums of various courts to fortify the arguments advanced by him. 10. Smt. Kochuthresia, the learned counsel for the plaintiff raised arguments supportive of the findings of the trial court. According to her, the defendant also concede the borrowal of the money from the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st was paid for a period and Rs. 2,00,000/- was also paid towards the principal sum borrowed. 14. The admitted case of the defendant was that 6 cheques for Rs. 8,00,000/- in total were given at the time of availing of the loan itself. What made the defendant to issue six cheques for Rs. 8,00,000/- at the relevant time of availing of the loan amount itself is not known. No cogent explanation for that is forthcoming from DW 1. Therefore, the stand taken by the defendant in defence itself is confusing. 15. Yet another important aspect to be noticed is the claim of the defendant that Rs. 2,00,000/- was paid towards the principal amount of loan stands unestablished. The defendant failed to produce a receipt to evidence payment of Rs. 2,00,000/- towards principal sum. A prudent man would obtain a receipt when a substantial sum is repaid by him towards the loan dues especially when his specific case was that cheques for Rs. 8,00,000/- are retained by the plaintiff as security. 16. An important aspect arises for consideration is whether entering the dates in the cheques, duly filled up in all other respects and also signed would amount to material alteration as contended by the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablished by the plaintiff, presumption under Section 118 of the N.I. Act on consideration would operate to aid the plaintiff seeking realisation of money based on cheques. 21. In the case on hand the execution of the cheque stands admitted by the defendant when he admits the factum of availing of loan from the plaintiff and issuance of cheques. In such a context, presumption under Section 118 N.I. Act could be drawn that those were issued for valid consideration. A contention was raised that his source to advance the huge sum was not established by the plaintiff and Abdul Khader v. Zubair [2015 (4) KLT SN 135 (Case No. 163)] was relied on to support. In the said case PW 1 has spoken during examination that he has no source of income and it was held by the court that the said version is material while drawing the presumption under the N.I. Act. It was also said by the court in the context that the accused has discharged his initial burden, successfully. 22. The decisions relied on by the learned counsel cannot be said to have any relevance in the context of the case on hand when the transaction of borrowal of money stands admitted by the defendant and claim of repayment of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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