RAGHAVAN THAMPI Vs. JANAKI AMMA

JUDGEMENT

(1.) The deceased plaintiff', now represented by plaintiffs 2 to 8, sued the defendant who is the appellant, for money due on a cheque Ext. A dated the 10th September, 1954, for Rs. 3,014 drawn by the latter in favour of the former, and dishonoured by the bank. The defendant pleaded that the cheque was unsupported by consideration, that it was drawn for securing an agreement by him to buy the plaintiff's car, that the car was not got repaired and was not delivered to him as undertaken, and that the plaintiff gave him no notice of dishonour. The Subordinate Judge decreed the suit.

(2.) The alleged agreement to buy the car is supported only by the interested testimony of the defendant. According to him the agreement was on February 10, 1954, when a cheque was drawn, dating it as March 10, 1954. He said, that after some time had elapsed, he drew a second cheque in substitution of the first, even though he knew well at the time, that the plaintiffs son would not part with the car. Yet, as he said, some time later he drew the third cheque, Ext. A, for the same amount dating it as September 10, 1954. I am not clear how, except in a very far fetched sense, the drawing of a cheque can secure the performance of the agreement. All this looks so odd, that I cannot accept this story of the defendant.

(3.) There is a presumption under S.118 of the Negotiable Instruments Act, 1881 that a negotiable instrument is supported by consideration. As held in Kundan Lal Ballaram v. Custodian, Evacuee Properly, Bombay ( AIR 1961 SC 1316 ) this presumption may be rebutted by any contrary presumption which may be available in law or by circumstantial evidence. As for circumstances, it was elicited from the plaintiff examined as Pw. 1, that there had been dealings between the parties from about the year 1950, in the course of which, the defendant used to draw cheques from time to time in the name of the plaintiff in settlement of his liability, and that on many occasions cheques were withheld by the plaintiff from presentation to the bank for payment, often at the request of the defendant, when he was not in funds. It was further elicited, that as a result of prior dealings, the defendant became indebted to the plaintiff to the extent of about Rs. 2500/- and that on the date Ext. A bears, the plaintiff made an advance of Rs. 500/- and took Ext. A in satisfaction, with a direction from the defendant not to present it for payment till the end of the year. The plaintiff swore, that he had his account books and also some of the cheques which had been issued to him in the past. He produced three of the cheques which were marked Exts. E, F & G. The above circumstances do not point to an inference, that Ext. A and the prior cheques were drawn without consideration, for the point to be noticed is, that going by the plaintiff's evidence which is the only available basis for the argument, the cheques were drawn in liquidation of the defendant's liability. So the circumstances are not such as to render it probable, that the defendant drew cheques without consideration. There is no conceivable reason why the plaintiff, an old man, should institute this suit on a false cause of action against the defendant.