S. Rangarajan, J.
(1) The defendant is the appellant against whom the learned Subordinate Judge (Shri M. L. Mirchia) decreed the plaintiff's suit for Rs. 4,700 with proportionate costs. The plaintiff/respondent filed a suit out of which this appeal arises for recovery of Rs. 5,500 on the allegation that he gave a cheque for Rs. 4,700 to the defendant/appellant on 10-3-1959 as a loan bearing interest at Rs. 6 per cent per annum. The appellant who admittedly encased that cheque did not repay the loan.
(2) The present suit was filed on 9-3-1962, on the eve of limitation. The defendant, who was working under the plaintiff, admitted that he encased the cheque but pleaded that he handed over the money so drawn to the plaintiff on that very day. The plaintiff filed a reply statement making a distinction between self-cheques and those drawn by the plaintiff in the name of the defendant; while the latter were given for the benefit of the defendant by way of advance, the former were for the plaintiff's own use.
(3) The following three issues alone were framed on 3-8-1962 after recording the statements of the counsel for both sides :
(1)Whether the defendant had paid the sum of Rs. 4,700 on 10-3-1959 after having got the cheque encased from the bank (2) Whether the defendant had agreed to pay interest to the plaintiff at 6 per cent per annum (3) Relief.
(4) The learned Subordinate Judge passed an order on 3-8-1962 staling that no further issue arose. He distinguished the decision in Sir Sobha Singh & Sons v. Messrs Bihari Lal Beni Parshad 1956 P.L.R.432, (1). The case of the plaintiff in that case was that a certain sum was advanced to the defendant as a loan; the defendant who admitted that he received the amount denied receipt of the same as a loan. It was held that the burden of proving that the sum was advanced as a loan was on the plaintiff. In reaching this conclusion Bhandari, CJ. followed the decision rendered by Bhide, J. in Bihari Lal v. Chandu Lal A.I.R. 1939 Lah 386, (2) which was also a case where the defendant admitted having received a certain sum, which the plaintiff alleged was taken by the defendant as a loan. Bhide, J. pointed out that no legal presumption arises when a sum is admitted to have been received that it was meant to be repaid because the same may have been paid for various reasons; it is for the person who comes to court and sues for the recovery of a sum of money to prove that it was meant to be repaid. For this conclusion, Bhide, J. relied upon a certain passage from Wigmore (Law of Evidence, Vol. 5, para 2518-A at p. 517). A cheque, as pointed by the Judicial Committee of the Privy Council (vide Bank of Baroda v. Punjab National Bank Ltd. ) (3) is a peculiar sort of instrument, in many ways resembling a bill of exchange but in some entirely different; it is given (unless post-dated) for immediate payment; it is not intended for circulation and in the ordinary course is never accepted-in other words the holder of the cheque between himself and the drawer has no right to require acceptance. The cheque is, however, a negotiable instrument within the meaning of section 6 of the Negotiable Instruments Act, 1881. But there appears to be no need to invoke any presumption concerning consideration since it is not the defendant's case that he did not encash the cheque; it was also admitted by him that the cheque was issued in his name. Merely because the defendant made the above admission it would not follow that he also admitted he obtained a loan of the said amount from the plaintiff. The learned Subordinate Judge has been in error in invoking such a presumption concerning the alleged loan and not raising an issue concerning the loan throwing the burden of proving it on the plaintiff; he was also in error in not perceiving that the plaintiff had not come to court with a case of the defendant having encased a cheque for the plaintiff's use but not paying the amount of the cheque to him (plaintiff). If such a case had been set up there might have been justification for not framing an issue concerning the oral loan. Despite this, it does not seem necessary to send back the case for a fresh hearing after framing an issue concerning the truth of the alleged loan because both parties have let in all the evidence they could concerning the oral loan ; it was not stated before us that if an issue concerning the oral loan had been specifically raised some more evidence would have been let in by both or any of them. We have been taken through the pleadings and the entire evidence, both oral and documentary, in the case.
(5) The plaintiff is a well to do person with whom the defendant was employed since August, 1951 till dispute arose between them in September, 1960. Initially the defendant attended to the cases of the plaintiff in courts, kept his account and attended to his Bank work and other general duties for which he was paid Rs. 125.00 per month. He was working whole-time for the plaintiff till September, 1953. From October, 1953 to May, 1954 the defendant worked in an Exhibition organized by the plaintiff during which period he also did part-time work for the plaintiff. During this period he got Rs. .125 from the Khadi Exhibition and Rs. 30 from the plaintiff. Thereafter he was employed in the Khadi Bhavan, New Delhi on a pay-scale of Rs. 125-217 till August, 1959, during which period also he worked part-time for the plaintiff. The plaintiff agreed to pay him Rs. 30 per month. The defendant was later employed by the American Embassy at Rs. 290 (and later at Rs. 340) per month. When the defendant applied to the American Embassy for the post, as suggested by the plaintiff himself, the application was referred to the plaintiff by the Embassy and the plaintiff testified to the integrity etc. of the defendant.
(6) According to the defendant disputes arose between the plaintiff and the defendant in September, 1960. The reason for the dispute was stated to be the demand made by the defendant on the plaintiff for Rs. 2000.00 which he needed to buy a Scooter which he had booked. But the plaintiff was unwilling because of his impression that the defendant was earning enough money from not only the American Embassy but also from Khadi Bhandar. Since the plaintiff did not give the money demanded by the defendant he stopped attending to the plaintiff's income tax cases before the Income Tax Officer. This led to further estrangement between the parties. The plaintiff threatened that he would have the defendant dismissed from the American Embassy. The plaintiff complained to the Embassy that the defendant was a member of a labour union; he was compelled by the American Embassy to resign, which he did from 5-5-1961. The defendant retaliated by complaining (Ex. D. 26 is a copy of that complaint) to the Income Tax Department on 2-6-1961 against the plaintiff. The plaintiff got his brother to file a suit against the mother of the defendant on 27-2-1961 concerning a. plot of land which had been sold by the plaintiff's brother to the defendant's mother, in which case the plaintiff appeared as a witness against the defendant and another. That suit was ultimately dismissed on 28-5-1962.
(7) During the pendency of the said suit the plaintiff issued a notice to the defendant on 26-4-1961 demanding the above-said sum of Rs. 4,700.00 (not interest) to which the defendant sent a reply on 10-5-1961 repudiating the said demand. Then the Plaintiff filed the present suit on practically the last day of the limitation.
(8) The allegation made by the plaintiff in the notice which he issued to the defendant on 26-4-1961 during the pendency of the above said suit by the plaintiff's brother against the defendant's mother is itself tell-tale. It referred to a feeling on the part of the plaintiff that the amounts he had advanced from time to time, for the convenience of the defendant's family, were not secure. He did not wish to press for immediate payment as the defendant would not be able to do so all at once. In order to make a beginning he wanted to make a demand for the above-said Rs. 4,700.00 paid to the defendant by means of the said cheque, 'so that a certain sense of security persists about the dues'. There was no express reference then to the defendant asking a loan or even to any agreement on the part of the defendant to pay any interest (the claim for interest was subsequently given up). The plaintiff referred to some other amounts subsequently advanced, which were comparatively small; he permitted the defendant to pay them in Installments at his convenience. There was also a demand for a sum of Rs. 1440.00, being rent at the rate of Rs. 40.00 per month, in respect of the house of the plaintiff which the defendant and his father had occupied but vacated in February, 1961. There has been no reference, subsequently, to the said arrears of rent even as there has been none to any other amount being due by the defendant to the plaintiff.
(9) Despite the allegation, which the defendant had made even in the written statement, that the defendant had come to know about the plaintiff preparing a new set of account books, coupled with the assertion even in the reply notice, sent as early as on 10-5-1961, that he used to make the entries in the cash books, the plaintiff did not produce the account books into Court. Even during the course of his evidence. recorded on 15-2-1963, the defendant maintained that he used to write entries in the books of account of plaintiff. Even then the account books were not produced by the plaintiff. An application was, thereforee, filed by the defendant, on 18-2-1963, for direction that among other documents the plaintiff should produce the cash book and lodgers relating to the various dates mentioned in the years 1955 to 1958 and 1960. But only about the time of the examination of the plaintiff himself (on 15-3-1963) the plaintiff appears to have produced the account books (we are not told that they were even filed into Court). The following answer of the plaintiff during cross-examination 'it is wrong to suggest that the books produced by me were got prepared for the purpose of the suit' shows that the accounts were probably produced at that stage. Even the other writer of the account books was not called in order to falsify the claim of the defendant that he had written the account books himself.
(10) Yet another important feature is that the .plaintiff is seen to have prepared balance-sheets for being produced before the Income Tax authorities. One of them, as on 30-6-1957 (Ex. D. 36), shows there were sundry creditors for rupees one lakh odd and that there was a separate list concerning them. The balance-sheets for subsequent years were not produced. When questioned about this the plaintiff could only state that he did not remember whether any list of debtors or creditors were filed with the Income Tax authorities or not; he could not say if the amount now claimed by the plaintiff was shown in any of them. The plaintiff's case was that the defendant had taken away the vouchers with him. It is true that the defendant himself had produced some vouchers which as an Accountant he had prepared for the plaintiff in the usual course of business. No voucher subsequent to 1954 has been produced by the defendant; there has been no assertion, even in the reply statement, despite reference having been made in the written statement to the plaintiff concocting fresh accounts, that the vouchers were with the defendant. It was asserted, on the other hand, that there was no voucher for this suit amount (vide para 2).
(11) Before referring to the vouchers it is necessary to notice that the plaintiff's account in the Central Bank of India for the month of November, 1954 (copy of which is Ex. D. 5) discloses that the following cheques in defendant's name were encashed:
4.11.1954 Rs. 100.00 5.11.1954 Rs. 348.00 8.11.1954 Rs. 625.00 11.11.1954 Rs. 600.00 12.11.1954 Rs. 400.00
It is worth recalling that the plaintiff's case as mentioned in the reply statement was that all these amounts for which he had issued cheques in the name of the defendant were by way of advances to the defendant, his further case being that if he wanted to draw any money for himself from the Bank, he would only make out self cheques. The two vouchers pertaining to Rs. 600.00 and Rs. 400.00 are Exs. D. 3 and D. 2, respectively; these were obviously not treated as advances to the defendant. 'The plaintiff has not sued the defendant for any of the above-said five amounts on the footing that they were amounts advanced to him.
(12) The only point on which Shri Radhe Mohan Lal, learned counsel for the plaintiff/respondent could, in these circumstances, place some emphasis was the fact of the word 'self' being originally written by the defendant, but scored out, and the defendant having written his own name in the counterfoil of the cheque for Rs. 4,700.00 (Ex. D.W. 3/P.1).. This counterfoil was not produced into court earlier; it was only on 15-3-1963, when the defendant was being examined and cross-examined, that the above-said counterfoil was put to him. The defendant admitted that the word 'self' was previously written by him, he had cut it out and then wrote his name. He could not say why he had done so. We are unable to draw any inference adverse to the defendant from his mere inability to explain the above said fact specially when that counterfoil was produced for the first time and put to him during his cross-examination but not earlier. It may not be possible for many under the stress of cross-examination to recall the circumstances attending a document shown for the first time in cross-examination. Not much significance can be attached to this feature because even before' issues were framed the defendant's counsel had made the following statement as early as on 3-8-1962:
'THEdefendant did get the cheque for Rs. 4,700.00 described in the plaint from the plaintiff. The defendant got the same cashed from the bank. The defendant got the money of the cheque from the bank and had paid the sum of Rs. 4,700.00 to the plaintiff on 10-3-1959. There was no question of paying interest. The above cheque was not in the name of the self but in the name of the defendant. It was not a loan'.
(13) The judgment in the suit filed by the plaintiff's brother against the defendant's mother has been exhibited as Ex. D. 27, but the same is not relevant under sections 40 to 43 of the Evidence Act. It is, however, seen from the deposition of the plaintiff as a witness in that case (Ex. D. 28) that the plaintiff had no scruples in the matter of even denying, after admitting it before the Registrar, that he had received consideration for sale of property in that suit; he subsequently admitted it when the said fact was brought to his notice in the following manner : 'If it is so written in the sale deed then I would have admitted as such'. It is needless to go further into this aspect because on the plaintiff's own showing he did not even put forward a consistent case.
(14) When the relationship between the plaintiff and the defendant became strained the former obviously wanted to put pressure on the latter who had even ceased to attend to his income tax cases. The plaintiff himself admitted in the course of cross-examination, in the present suit, that the pay of the defendant at Rs. 30.00 per month was not shown in the books. The reason for no.t showing it was that the defendant was an employee of Khadi Bhandar (a Government institution) and there was a likelihood of some objection being taken to the defendant's part-time employment of the plaintiff. There were some other employees also under the plaintiff; their pay was also not shown in the books 'for the same reasons'. It is obvious that when the relationship between the plaintiff and the defendant became strained the plaintiff resorted to a claim of this nature and he did not even follow it up by a suit thereafter and waited till practically the last date of limitation. It does not stand to reason why he did not file any suit or take other steps to recover the other sums than the one claimed in this suit.
(15) Having regard to all these circumstances it seems to us that the case of the plaintiff that he had advanced a sum of Rs. 4,700.00 as loan to the defendant is not true. The judgment of the learned Subordinate Judge contains practically no discussion of any of the circumstances discussed by us at length. He seems to have thought that a mere admission by the defendant that he used to encash cheques issued by the plaintiff, whether the cheques were issued in the name of the defendant or as 'self-cheques', was sufficient to support the plaintiff's case. We do not share this view.
(16) The more important circumstance, which the learned Subordinate Judge has missed, is that the plaitiff had gone to the lengtht of staling in his reply statement that only self cheques were meant for the plaintiff's own benefit and that cheques issued in the defendant's name were for the defendant's benefit, this case stands positively disproved.
(17) The learned Subordinate Judge was not willing to attach any significance to the plaintiff having filed a suit practically on the last date of the limitation merely on the ground that the plaintiff was not bound to come to court earlier. The learned Subordinate Judge, we are afraid, did not take a total view of all the circumstances to which we have referred at length. In particular, he did not even evaluate the delay in filing the suit in the light of the halting, feeble and unnatural allegations made even in the notice sent by the plaintiff and the background of strained relationship between the parties.
(18) We are thereforee, constrained to set aside the judgment and decree of the learned Subordinate Judge and dismiss the plaintiff's suit with costs both in the trial Court and in this Court.