Law: Negotiable Instruments Act, 1881

Section: 118

Law: Civil Procedure Code (V of 1908)

Section: 2

(a) Negotiable Instruments Act (XXVI of 1881)--- ----S. 118---Civil Procedure Code (V of 1908). O. XXXVII, R. 2---Cheque dishonoured---Plaintiff filed suit for recovery of amount of Rs.20,80,820/- allegedly paid to Defendant for starting business---Plaintiff contended that defendant issued to him a cross cheque which was dishonoured for insufficient balance---Defendant contended that the said cheque was stolen by the brother of the plaintiff---Trial Court decreed the plaintiffs suit---Validity---Plaintiffs witness deposed before Trial Court that the plaintiff was his relative; that respondent and appellant were present in the office of plaintiff; that defendant obtained a loan from plaintiff amounting to Rs.20,80,820---Appellant stated that said cheque was actually issued to the brother of the Plaintiff, and he, in a concealing manner, took the cheque; and that he had given a loan of Rs.3000 to the brother of the plaintiff---Such stand of the appellant/defendant was contradictory to his very stance---One could not steal a thing that did not exist---To support the claim of stealing/theft it was always necessary to establish the existence of an allegedly stolen thing, else the claim of theft should not stand even if it was admitted by an alleged thief---Such assertion did not stand to reason as to how the cheque, without the consent of its maker, was in possession of the respondent---No cogent evidence had been produced by the appellant that he had not issued a cheque nor signed---Record did not show that the cheque was torn out of his cheque book and it did not pertain to the account maintained by him in the Bank---Mere denial that he had not issued the cheque would not be sufficient---In case of negotiable instrument, it was the defendant who was duty-bound to prove contrary, because the presumption was attached to the negotiable instrument---Story cooked up by the plaintiff had not been supported by any cogent evidence---Plaintiff had failed to rebut the statutory presumption raised under S. 118 of the Negotiable Instruments Act, 1881---Appeal was dismissed accordingly. (b) Negotiable Instruments Act (XXVI of 1881)--- ----S. 118---Cheque---Execution…

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