Masud J. - (1.)The point to be decided in this appeal is whether, in the facts and circumstances of the case, the order of adjudication in respect of the estate of the debtors, Srilal Kajaria, Jugalkishore Kajaria, Shyamlal Kajaria and Onkarmal Kajaria, passed by the learned trial Judge on May 13, 1960, is justified in law. The petitioner Jiwanmal Bhutoria carrying on business under the name and style of 'Chandmal Jiwanmal' set out various acts of insolvency in para 6 of his petition. At the time of hearing of the petition, the petitioning creditor did not proceed with the proof of two of the grounds, the first ground being that the appellant debtors stopped in Calcutta their business of International Traders with the sole intention of defeating or delaying payment of the dues of the numerous creditors including those of the petitioner and the second being that the debtors transferred some of their assets to defeat the claims of the creditors. The only ground on which the creditors pressed the order of adjudication may be set out as follows:
1. The debtors have given notice on 20 the November, 1959, to your petitioners of their inability to pay and/or that they had suspended payment of their debts and or they are about to suspend payment of their debts. A copy of the said letter dated 20th November, 1959, is included in the Annexure 'A' hereto.
The said petition was, however, directed by the learned trial Judge to be tried on evidence and the learned Judge after examining voluminous evidence, oral and documentary, came to the conclusion that the allegations against the debtors are correct and, as such, he made the said order of adjudication against the debtors. Before we examine the contentions of both the parties, the material facts may be briefly stated as follows.
(2.)The debtors, Srilal Kajaria, Jugalkishore Kajaria, Shyamlal Kajaria and Onkarmal Kajaria, for about nine years prior to the presentation of the petition were alleged to be carrying on business in co-partnership under the name and style of 'Joharmal Jugalkishore' at No.18, Amratola St., Calcutta, and also at No.325, Kalba Debi Road, Bombay. The said four partners also were supposed to be carrying on business in co-partnership under the name and style of 'Pannalal Kishanlal' at the said places in Calcutta and Bombay. Two of the said debtors, Sri Kajaria and Jugalkishore Kajaria, also were alleged to be carrying on business in co-partnership under the name and style of International Traders at No.18, Amratola Street, Calcutta, and also at No.325, Kalba Debi Road, Bombay. Between May 2, 1958 and June 13, 1958, the petitioning creditor lent and advanced in the said business of 'Chandmal Jiwanmal' at Bombay by way of commercial loan diverse sums amounting to a total sum of Rs.2,88,000 to the two debtors Srilal Kajaria and Jugalkishore Kajaria in their business of International Traders in Bombay. Between May 7, 1958 and May 19, 1959, the same creditor lent and advanced to all the aforesaid four debtors in their said business as 'Joharmal Jugalkishore', Bombay, sums amounting to Rs.46,000. A notice dated November 7, 1959, demanding payment, was alleged to have been sent to the said debtors. The debtors, according to the creditor, within three months before the date of presentation of the petition, gave notice on November 20, 1959, to the petitioning creditor informing their inability to pay the debts. The debtors also in their said notice dated November 20, 1959, were supposed to have stated that the debtors had suspended payments of their debts to other creditors and or they were about to suspend payment of their debts. It is alleged in the petition that in spite of the repeated demands the debtors wrongfully failed and neglected to pay the said sums of Rs.3,34,000 or any portion thereof. The said sum advanced were unsecured and no person on behalf of the creditors held any security on the said debtors' estate for the payments of the said sums. The debtors have challenged the genuineness of the said two documents dated November 7, 1959 and have given evidence to the effect that the signature of S. L. Kajaria in the said letter dated November 20, 1959, is forged. According to the debtors cheques for Rs.3,34,000 were drawn by the petitioning creditor from time to time on the Bank of India Ltd., Bombay, in favour of 'International Traders' and 'Joharmal Jugalkishore', and the debtors in their business 'Joharmal Jugalkishore' and 'International Traders' Bombay, deposited the said cheques in their banks and duly encashed the same. But, according to the debtors, who completely denied their indebtedness, the said sum of Rs.3,34,000 which the debtors received belonged to the debtors themselves, and as such, there was no question of repayment of debt owed to the creditor. The creditor's definite case is that owing to the vexatious proceedings against him and the other Bhutoria by the Income Tax authorities and also the certificate proceedings pending against them, they were keeping large sums of cash money in their till. They had been depositing, in various instalments, exact sums of money on the days when the cheques for the respective amounts were being drawn by them on their bank in favour of the debtors. According to them, the debtors were in friendly terms with the Bhutorias and, as such, at their request they accommodated the debtors by lending them the same. The debtors, that is the Kajarias, on the contrary, made out an entirely different case. According to them, sometime in the last week of April, 1958, Bahadur Singh Bhutoria and Sampatlal Bhutoria, on behalf of the petitioning creditor, represented to Srilal Kajaria that the petitioning creditor wanted to show his bankers substantial transaction in their business by reviving his banking account in the Bank of India Ltd., Bombay, to enable the Bhutorias to obtain overdraft facilities for their business in Bombay. Srilal Kajaria agreed to accommodate the Bhutorias by accepting their cheques and simultaneously depositing cash moneys in the banking account of the Bhutorias to cover the said cheques issued by the later either in favour of International Trades or Joharmal Jugalkishore. Pursuant to the aforesaid arrangement, whenever cheques were issued by and on behalf of the creditors, Srilal Kajaria or Jugalkishore Kajaria caused the necessary cash money corresponding to such cheques to be deposited into the banking account of the creditor excepting on one occasion when Kajaria deposited one cheque issued by International Traders for a sum of Rs.36,000. According to Srilal Kajaria, the said deposits in cash were made by them with moneys either taken from the till of their business or from the banking account of their partnership firms. The learned trial Judge after discussing the oral and documentary evidence adduced in the case disbelieved the story of the debtors and held that the creditor's case was substantially proved and, accordingly, he directed the order of adjudication in respect of the estate of the debtors as stated above.
(3.)Mr. R. C. Deb, learned Counsel for the appellant, has strenuously contended that the entire approach of the learned trial Judge to the evidence before him was erroneous inasmuch as he first made up his mind that the disputed letters dated November 7, 1959 and November 20, 1959, were genuine and then evaluated the other evidence adduced by the debtors on the basis of such conclusion ignoring material pieces of evidence demonstratively showing the improbabilities and the absurdities of the creditor's case. He has substantiated his criticism by referring to certain outstanding fact which may now be examined. In our view, there is great force in Mr. Deb's argument. We are convinced that the oral and documentary evidence and the surrounding circumstances do not justify the answers given by the learned Judge to the issues raised in this appeal. The reasons for such conclusion may now be set out as follows:
A. Admittedly between May 2, 1958 and June 13, 1958, the creditor or his representative in Bombay has drawn cheques to the extent of Rs.3,34,000 on the Bank of India Ltd. in the name of International Traders and Joharmal Jugalkishore. Out of the said sum of Rs.3,34,000 a total sum of Rs.2,88,000 was paid to the debtors, Srilal Kajaria and Jugalkishore Kajaria, in their partnership business of International Traders and Rs.46,000 to the debtors, Srilal kajaria, Jugalkishore Kajaria, Shyamlal Kajaria and Onkarmal Kajaria, in their partnership business of Joharmal Jugalkishore. There is also no dispute that all these sums were received by the said debtors in their business of International Traders and Joharmal Jugalkishore. There is nothing to show that the said International Traders and Joharmal Jugalkishore repaid the said amount of Rs.3,34,000 to the creditor. Thus, prima facie, it can be said that the appellant owed a debt for the said sum of Rs.3,34,000 to the creditor. The creditor's case is that in 1958 when loans and advances were made to the debtors, Bahadur Singh and Sampatlal were holding moneys belonging to the creditor in cash in Bombay. According to the Bhutorias, they were afraid that if the moneys were kept in different banks, there would have been attachment of his banking accounts by the Income Tax Authorities who have been pursuing them relentlessly for the arrears of income-tax (Bhutoria : Qs. 152-153). In support of the said contention we find a letter dated July 2, 1955, (Ex. II) issued by the Certificate Officer of Burdwan to the creditor that the assessment in the Certificate Case No.623 Misc. of 1951-52 has been substantially modified by an order of the Appellate Assistant Commissioner, Income tax. The Original assessment was Rs.3,33,527 which was reduced to Rs.2,79,768-13-0. A large number of notices under Section 46(5A) of the Income-tax Act, 1922, (Ex. P) addressed to several banks where the creditor had accounts were also tendered to prove that the creditor was genuinely apprehensive of their liquidated assets being frozen by the Income Tax Authorities. Further, on March 29, 1950, it appears that a notice of demand under sec. 59 of the Income-tax Act, 1922, (Ex. II) was issued to the creditor showing that he was assessed at Rs.5,32,414 for the year 1945-46 and, in fact, on March 31, 1952, a certificate of public demand for Rs.4,33,527-12-0 for the assessment year 1946-47 (Ex. II) was issued by the Certificate Officer, Burdwan. A statement of Messrs Chandmal Jiwanmal with the Bank of India Ltd., Bombay, (Ex. EE) shows that from April 30, 1958 to June 3, 1958, the position of the creditor's banking account was such that save and except the moneys which were being deposited from time to time covering the cheques drawn in favour of Kajarias there was practical no deposit of money and the bank balance was insignificant. It appears from the oral evidence of Bahadur Singh (Qs. 95-104) that the total income-tax liability of the Bhutorias amounted to about Rs.10,00,000. Subsequently, in 1956 they decided to wind up their business in Bombay. After 1956, excepting one part-time typist, they dispensed with the services of all the employees and that was the position in 1958 also when the alleged loans were supposed to have been given. The learned Judge has accepted the creditor's case as to his income-tax difficulties and accordingly, believed his story to the effect that the source of the said sum of Rs.3,34,000 advanced to the debtors was the cash money lying in the till of the creditor. In our view, the creditor's said explanation of the source of the loan cannot be accepted. It is difficult to believe that a solvent businessman who has dealt with business worth lakhs of rupees should close his business in fear of the Income Tax Authorities. Apart from the creditor's oral evidence, there is nothing to show that in April, May and June, 1958, the petitioner had the means to lend and advance the said sum of Rs.3,34,000 to the debtors. His oral evidence to the effect that huge sums of money were lying deposited in his Iron-safe to avoid the statutory liabilities, cannot and should not be accepted by any Court of law. In fact, the learned trial Judge has repeatedly stated in his judgment that the conduct of the petitioner in this respect is reprehensible.

B. Admittedly, the pay-in-slips (Ex. 21) with which the moneys covering the loan were deposited were produced from the bank and it is also admitted that they were filled in by the employees of the debtors. The creditor's case is that as Bhutorias closed their business in Bombay and, excepting one typist, they had no employees of their own, they took the services of the employees of the debtors and deposited their own moneys through these pay-in-slips. As the relationship between the parties were friendly, they allowed the employees of the debtors to fill in all the pay-in-slips and also took their help by asking them to accompany them to the bank as their bodyguard. The debtors, on the other hand, made out the case that all the moneys they had received under cheques drawn in their favour by the Bhutorias were deposited in cash by them from their own till or from bank on the same days when the cheques were issued. As stated earlier, this procedure was followed by the debtors to accommodate the creditor at their own request. Thus, the source of money covering the cheques issued in favour of the debtors, according to the creditor, is the cash money lying with the creditor whereas, according to the debtors, it is the cash money lying with them and also their bank. The pay-in-slips demonstratively falsify the creditor's case that the moneys deposited in the bank belonged to the Bhutorias. A reasonable thing for anybody particularly for businessmen like the Bhutorias should have been to keep some evidence which would show that the moneys belonged to them. It is the usual thing for a man to deposit cash money in his bank through the pay-in-slips filed in by himself or his employees. These material documents (Ex. 21), on the contrary, support the debtor's case that the cash moneys deposited in the creditor's bank belonged to them. The Bhutorias' explanation to these extra-ordinary facts to the effect that good relationship was continuing between them and the debtors at that time and that as they had no employees of their own they took the help of the debtor's employees, cannot be true in view of the fact that all the pay-in-slips were initiated by Bhutorias. There is no satisfactory explanation why the initial were necessary at all. If the initials were done contemporaneously, why could not the pay-in-slips be filed in by the Bhutorias themselves or their typist-clerk. Further, if the initials were done at the time when the pay-in-slips were filed in, why were they done at all unless there was an element of distrust in the debtors. The initials on the pay-in-slips are not consistent with the creditor's case that friendly relationship was there between Bhutorias and Kajarias and, as such, Bhutorias had complete confidence in them. We are convinced that these initials were put in by the creditor at much later stage. In fact, the learned trial Judge came to the same conclusion that these initials in the pay-in-slips were entered subsequently.

C. Assuming that the moneys deposited by the Bhutorias in their bank belonged to them and were duly deposited by them with the help of the debtors' employees by getting the pay-in-slips filled in by them which is the creditor's case, the most natural thing would be for the Bhutorias to keep the counterfoils of the pay-in-slips with them. But it appears that that the counterfoils of the pay-in-slips remained in the custody of the debtors as evidence of the deposits of their own money. The Bhutorias' explanation is that the counterfoils were lying in their own custody, but on December 19, 1958, they deposited all the documents concerning their business with the debtors including pay-in-slips and books of account when they removed truck-load of things belonging to their Bombay business to their new business at Belgaon. It was stated that the documents were left with the debtors in Bombay because these books belonging to the creditor would be required for pending sales tax proceedings in Bombay. This is another improbable story which is difficult to believe. There is nothing to show that these counterfoils were demanded in writing by the creditor (Bahadur : Q. 459). Further, there is no reason why a light bundle of a few counterfoils could not be carried to Belgaon by train or brought back from Belgaon by the creditor or his men, when hearing of sales tax proceedings would take place. The fourteen counterfoils could have been left in the custody of their sales tax lawyer in Bombay. The creditor in support of this case referred us to the carbon copy of letter dated December 19, 1958, (Ex. C) and a receipt (Ex. C1) to prove that the documents were in fact left with the debtors in Bombay in their custody on that date. This letter and this receipt, supposed to be hastily written on their way from Bombay to Belgaon, if they are at all genuine, repel the Bhutorias' story that they had complete confidence in the debtors. Further, there are good reasons for the suggestion that this letter and the receipt are concocted documents. The receipt is undated and assuming that the signature is genuine, the receipt portion might have been nicely cut out from some other document where S. L. Kajaria's signature was there and where there was a blank space before such signature. It is quite possible that after cutting out the bottom portion of such document the blank portion before the signature was filled in with the words: Received a letter from Chandmal Jiwanmal dated 19.12.58 along with account book, Bank voucher, files, etc., as mentioned in the letter. Thus, the portion of the other document severed from the original piece of paper must have been given the shape of a receipt for the purpose of explaining the missing links of the creditor's case. Further the evidence as to the carbon paper required for preparing carbon copy (Ex. C) and not using the carbon or pencil in drafting the receipt (Ex. C1) and the story of collecting carbon from a neighbour and the paper from the waste paper box do not seem to be convincing (Mukundam : Qs. 133-154). The oral evidence was given by Mukundam and Bahadur on these two documents are useless in view of the fact that they were not present when the documents were supposed to have been delivered to S. L. Kajaria. In fact, the learned trial Judge also agreed at one stage to reject Mukundam's evidence, but he was compelled, as he himself stated, to accept his evidence on this point on account of alleged contradictory suggestions made to Bahadur in cross-examination (Bahadur : Qs. 607, 1565, 1566). It was the definite case of the debtors that Exercise. C and C1 were not genuine documents and naturally the debtors would not know how they came into existence. The learned Counsel for the debtors have made two suggestions; one suggestion is that signature itself in the receipt is a forged one; and the other suggestion is that even assuming that the signature is held to be genuine, the size, appearance and the writings on the alleged receipt show that the portion on which it is written is a portion cut out from another document containing S. L. Kajaria's signature. There was further suggestion that the blank space at the top of that signature was filled in by writings giving it a semblance of a receipt. A signature when properly or skillfully forged looks like the genuine signature and, therefore, an alternative suggestion was made. Even assuming that the suggestion is contradictory that does not lead one to the conclusion that Mukundam's evidence is correct. Further, the extra-ordinary features of these documents show that they do not contain any list of books and documents deposited with S. L. Kajaria and, thus, the alleged receipt even assuming it to be genuine has no merit or value as receipt. Mukundam could not say why books were made over to S. L. Kajaria (Mukundam : Qs. 95-100). Sampat and Mukundam did not say that any counterfoil of the pay-in-slips which the Kajarias have produced was made over in December, 1958. As stated earlier, Bahadur's evidence regarding making over of particular pay-in-slips (Bahadur : Qs. 202 and 459) is also useless as he was not present in Bombay. The letter dated December 19, 1958, alleged to have been written by Sampatlal Bhutoria to Srilal Kajaria which is marked as Ex. C is only a carbon copy in pencil. If the original was handed over to Srilal Kajaria the receipt could have been taken on the back of the carbon copy, but instead a separate undated receipt was produced (Ex. C1) which is a receipt has no value inasmuch as it does not contain the date or even the list of documents. The circumstances under which the said letter was written and the manner in which the alleged receipt was obtained do not by themselves satisfactorily prove the genuineness of these two documents. If the story of the creditor leaving his business books in the custody of the debtors on account of friendly relationship subsisting between them is true, why then it was thought necessary to write a letter to S. L. Kajaria keeping a carbon copy of such letter and also holding a receipt for the same. In our view, the possession of the counterfoils by the Kajarias, their production by the latter and the fact that the blank portions in the counterfoils were filled in by the debtors' employees falsify the creditor's case that the moneys deposited through the pay-in-slips belonged to the creditor. It may be said that the explanation given by the debtors as to the source of the money covering the cheques issued by Bhutorias to them is equally unsatisfactory inasmuch as the debtors also are supposed to have deposited cash money from their own till. But the fact that the pay-in-slips were filled in by the debtors' employees and the counterfoils were lying in the custody of the debtors do give greater weight to the genuineness of the explanation given by the debtors. In our view, the explanation given by the creditor to explain the source of the money advanced to the debtors must be rejected.

D. The normal and natural thing for every creditor who deals with different kind of business is to maintain books of account. The non-production of any books of account supporting the creditor's case of loan compels us to draw adverse inference against the story of such alleged loan. The explanation offered by the creditor was the same explanation which was given by the creditor in support of the proof of Exs. C and C1. For reasons stated earlier, we have already held that Exs. C and C1 are not genuine documents. It is absurd to accept the story that a businessman leaves all his business books in the custody of persons to whom loans to the extent of Rs.3,34,000 have been given in several instalments. Further, the letter dated November 12, 1959, written by Chandmal Jiwanmal to the Bank of India Ltd. (Exs. FF) corroborates the debtors' case that the books of account were not handed over to them and that they were deliberately suppressed by the creditor. The creditor's explanation to this letter is that he got the particulars of the account from his pass books which were lying in Belgaon. But in the absence of the relevant pass books which were not produced by the creditor, this explanation also cannot be accepted. Similarly, were find that there is nothing document, the letter dated September 15, 1959, (Ex. 8) from Bank of India Ltd. intimating sending of cheques and pay-in-slips 'as detailed' by Bhutorias. These details must have been given from the Bhutorias' own books. Thus, if the Bhutorias were in the custody of the books in 1958, the story of keeping those books of account in the custody of S. L. Kajaria cannot be true. Again, the copy of the letter dated September 9, 1959, referred to in the letter dated September 15, 1959, has also not been produced. Further, the extra-ordinary thing is that there was no demand for return of the books although registered letters passed between the parties in March and April, 1959 (Exs. 15, 7, 52, I). Questions were asked to Sampat as to the alleged story of Sampat taking back one file relating to Sales Tax from the custody of S. L. Kajaria and not taking back other books in January, 1959 (Sampat : Q. 237) but no satisfactory explanation was put forward why other important documents were not taken back. There is no letter of demand for repayment of the alleged loan except the disputed notice of demand dated November 7, 1959. The moneys were advanced to the debtors in 1958. Registered letters of demands and the reply thereto passed between the parties in March and April, 1959 regarding other business transactions and yet no formal letter was written prior to the disputed letter dated November 7, 1959, demanding repayment of loan.

E. In para 4 of the creditor's petition, it is stated that between May 2, 1958 and June 1958, a sum of Rs.3,34,000 was lent and advanced by way of commercial loan to the debtors. It was also mentioned in the said paragraph that there was an agreement to pay interest at the rate of ten annas percent per month on all sums advanced. It is usual that ordinarily loan transaction between two businessmen would carry interest, but there is not a single piece of documents which shows that there was claim of interest against the debtors. This seems to be a conspicuous departure from the two formal transactions which took place between the parties on December 19, 1957. As the loans were given on different dates, the interests have to be calculated from different dates. Even the alleged notice of demand dated November 7, 1959, does not disclose the creditor's total claim on interest.

F. The financial ability of the creditor to grant a loan for Rs.3,34,000 to the debtors should also be examined. The source of money and the manner of depositing, as discussed earlier, do not substantiate the creditor's case on loan. The creditor's explanation of keeping a sum of three or four lakhs of rupees in the Iron-safe in Bombay is not supported by any documentary evidence. If the contention of the creditor is correct, i.e., if the Income Tax Authorities were maliciously pursuing the creditor, a situation which had caused the Bhutorias ever to close their business in Bombay, it would have equally cautious on the part of Bhutorias not to bring out their concealed income out of the Iron-safe or to deposit the same through pay-in-slip in their banking account. A money so long as it is kept concealed, the Income Tax Authorities cannot lay their hand on it. The alleged loans were supposed to have been made out of their hidden money and naturally it cannot be capable of any proof unless the source of the secret money is disclosed. If the alleged loan was not given out of their concealed income, it should be capable of proof, but than proof also did not take place. If the story of the creditor giving loan to the debtors by way of accommodation or because of friendly relationship is true the natural thing would have been for the Bhutorias to pay in cash to the Kajarias as and when they wanted and get receipts for the same from the Kajarias.

G. The creditor's definite case is that he decided to wind up his Bombay business in 1958. It was the evidence of Bahadur Singh (Q. 471) that the business was not entirely stopped in 1956. According to him, as there were some prior commitments, the business was kept going (Q. 472). But it is surprising that he has categorically admitted that there is no document to show that any business was being carried on by them after 1956 (Q. 473). He has, further, admitted that there was total stoppage of the Bombay business in January, 1958. We have already discussed that the story of stoppage of business in fear of the income-tax proceedings is unbelievable. If a person stops his business and there is no document to show that he has moneys deposited in his bank or invested elsewhere, the natural conclusion is that he has no fund or no money to spare with. The agreement between the Bhutorias and Kajarias as set out in the letters dated December 19, 1957, (Exs. 11, 17, D) under which Srilal Kajaria was given a profit of 40% and interest of 6% on advance to be made by him regarding Jamgaon mines makes it improbable that the Bhutorias did have such a large sum as claimed by them to have been advanced to the Kajarias. The agreement shows that the Bhutorias were not in a position to pay even Rs.18,000 which were outstanding. This agreement also supports the debtors' case that Bhutorias were not in a solvent position in December, 1957 or early 1958. The agreement, on the contrary, proves that Srilal Kajaria's financial position was much more solvent and dependable than the Bhutoria's. The joint venture referred to in the agreement dated December 19, 1957, was undertaken by the debtors and the creditor and there is no explanation why Bhutorias could not pay Rs.18,000, if they had three or four lakhs of rupees in their till. There is nothing to show why the Bhutorias would agree to pay 40% profit and 6% interest if the Kajarias had no finance. Further, the insolvency notice dated April 16, 1957 (annexure affidavit of Srilal affirmed on January 4, 1960) was served on the creditor by Messrs Devidayal Sales (P) Ltd. and it appears from the said notice that the creditor was not even in a position to pay Rs.6,017-14P. for costs of the suit. Then, again interim order of attachment dated July 25, 1958, against the properties of Jiwanmal Bhutoria lying on the Jamgaon mines obtained by chitti in Belgaon Court was made absolute on August 6, 1957, by the Bombay High Court and the Appeal Court, Bombay, on August 26, 1957, confirmed the same (Ex. 53). The Bank of India Ltd. also closed Bhutorias' account sometime in December 1958. It is true that the Bhutorias wanted to explain all these facts by referring to the facts that they were in possession of about four lakhs of rupees which were kept by them in their iron-safe to avoid the persecution of the Income Tax Authorities. We have already held that such an explanation is difficult for us to accept. In our opinion, all the aforesaid facts go to show that the Bhutorias have failed to prove their financial ability to make the alleged advances. Bhutorias produced documents (Exs. K, L) to show that large sums of money by way of telegraphic transfers from their business at Burdwan and also by way of hundis, were received by them and this explains the source of money lying in their iron-safe. But the memorandum from the bank showing telegraphic transfers of not very large sums of money relate to a period between 1951 and 1956. Similarly, hundis were all issued in 1953 and 1954. The payments of advance were made all in 1958 and there is no documentary evidence to show that the Bhutorias were solvent in 1958.

H. Apart from the pay-in-slips and the books of account, there were other documents which could have substantiated the payment of loan by the creditor. With reference to the said letter dated September 15, 1959, to the Bank of India Ltd. (Ex. 8) questions were asked to Bahadur Singh as to the source from which he could mention the particulars of cheques in that letter. The natural thing would have been to get those particulars from the books of account. But the books of account, according to Bhutorias, were lying with Kajarias and Bahadur had to admit (Bahadur : Qs. 649, 665, 669) that the particulars referred to in those letters were collected from rough notes which contained the details of the cheques. But when he was asked to produce those rough notes Bahadur stated that they were destroyed. It is expected that when the creditor's own case is that the books of account and pay-in-slips showing the deposit of money in the bank were in the custody of the debtors, he should have at least preserved these documents which were in his possession.

I. Sampat's evidence is that the Bhutorias were in possession of a paper which would show that they were in fact in possession of Rs.70,000 in their safe. It may be added here that on May 6, 1958, two cheques were issued by Sampat for Rs.30,000 and Rs.40,000 on the Bank of India Ltd. in favour of the debtors. The production of this paper would support the Bhutorias' case that the moneys were deposited by them in cash in their bank on the days when the cheques were issued by them in favour of the debtors. But, here again, in answer to Q. 476 Sampat's evidence is that his brother had torn it off and on that he had scolded his brother.

J. On May 14, 1958, two cheques for Rs.36,000 each were given by the Bhutorias to the debtors. Admittedly, one of the said cheques for Rs.36,000 was dishonoured. Thus, Bahadur might have money elsewhere but his banking account was in a precarious condition. Bahadur was specifically asked to explain the circumstances why the cheque for Rs.36,000 was dishonoured. Accordingly to him, Bahadur asked the Kajarias for the repayment of loan before Ram-Navami and the Kajarias gave him a cheque for Rs.36,000 which was sent to the bank. Thereafter, on the same day Kajarias asked Bhutorias for a loan of Rs.72,000 by two cheques and the two cheques were given to Kajarias. He tried to explain as to why the Kajarias should ask for loan of Rs.72,000 immediately after giving a cheque for Rs.36,000 in alleged repayment of earlier loan by saying that the cheques for Rs.36,000, given by the Kajarias had already been sent to the bank earlier. Apparently, he was suggesting that if a cheque for Rs.36,000 had not been sent to the bank earlier they would have needed only Rs.36,000 and not Rs.72,000. But this story is falsified by the endorsement on the counterfoils of the pay-in-slip for this cheque, 'too late for today's clearance'. This endorsement shows that this cheque had not been sent to the bank before issue of the two cheques. Thus, this unexpected endorsement contradicts Bahadur Singh's explanation.

K. The evidence of Bahadur regarding the story of the loan by crossed cheque is also highly improbable. Except the first two cheques all the cheques were signed in blank and were filled in by the Kajarias or their employees and the crossing in most of the cheques were also done by them. Ordinarily, there is no necessity for a ceremony of signing the cheques in the morning and making them over to the Kajarias for being filled in and later making over all pay-in-slips for being filled in by the employees of the Kajarias and going to the bank for putting in moneys taking Kajarias' men as bodyguards. In fact, there is evidence to show that during the absence of Bahadur from Bom. about May 14, 1958, the cheque book was with Srilal Kajaria and three/four cheques signed in blank were filled in during this period. If the Bhutorias are so careful as to cross the cheque, there is no sense in leaving the cheuqe book with Srilal Kajaria. On the contrary, the amount in the said three/four cheques signed in blank could not be written unless Srilal Kajaira was aware of the balance sum in the bank. If the creditor's explanation is correct, i.e., the creditor deposited the said amounts in his banking account, how would Srilal Kajaria know Bhutorias' bank balance when, according to Bhutorias, they did not keep any money in bank. On the other hand, it fits in with the story of the debtors that they used to deposit the amount from their own till and, accordingly, put in the figure. On every occasion Kajarias deposited the specific sum and the cheuqe for the exact amount drawn by Bhutorias was honoured. Once the deposit was made by Kajarias by cheque and as Kajarias' cheque was dishonoured Bhutorias' cheque also stood dishonoured. Further, serial number of 78 thousand rupees currency notes of thousand-rupee denomination, alleged to have been deposited in cash by Bhutorias, could be traced by the identical numbers of thousand-rupees currency notes, withdrawn by Kajarias from the banks. The long story of the Bhutorias exchanging thousand-rupee notes belonging to Kajarias with the notes of lesser denomination belonging to the Bhutorias is highly improbable. In fact, by giving such explanation the Bhutorias are admitting that Kajarias are at least solvent enough to be in possession of Rs.78,000 in thousand-rupee notes. Again some of the pay-in-slips were loose pay-in-slips taken from the bank by the Kajarias' men at the time of deposit and some of these came out of the deposit book of Kajarias (Ex. 50) in respect of their own account with the Bank of India Ltd.