Second, with regard to the claim of theft of the checks, in the hearing of the objection held on October 30, 2017, Dr. Dan testified that one checkbook and the sum of ILS 2,000 were stolen from her, which was in the wallet in her bag, which was kept in the office, and claimed that the checks in question were taken from the register. Later on, she contradicted her testimony and said that she did not know whether an examination of the check numbers against the stolen register would find that they were the same numbers, but she claimed with uncertainty that she did not know and "should be assumed" (in the transcript, pp. 1, 20-27 and 2, 1-6). She later confirmed in her testimony that no complaint had been filed with the police regarding these checks and noted that she did not know whether the checks were inside this stolen register (in the transcript, pp. 3, paras. 8-11). She also testified that she did not know who stole and that she did not say that it was the plaintiff who stole (pp. 2, 30-31). After receiving the objection, the defendant did not bring evidence to prove the theft of the checks, except for the testimony of Dr. Dan at the evidentiary hearing, in which she testified that the checks were indeed collected to her, but she did not point an accusing finger against the plaintiff (in the transcript, pp. 26, 29-30 and 27, 1-3).
- In light of all of the above, I found that even if the defendant had not abandoned her claim regarding the theft and forgery of the checks, the claim should be rejected, both in light of the contradiction underlying her claim, and in the absence of positive evidence indicating that the specific checks in question were indeed stolen from the defendant. Therefore, the claim regarding the theft and forgery of checks is rejected.
Proper grip
- There is no dispute in our case that we are dealing with parties who are close to the deed. There is also no dispute that the plaintiff received the checks when the amount did not appear in them and she filled out their amount. Therefore, in the circumstances of the case before us, the plaintiff, who is the payee of the checks, cannot be considered a proper holder of them (see: Civil Appeal 1886/97 Yehuda v. Zelma, IsrSC 35(1) 132 (1999)). Therefore, and despite the fact that the parties chose to elaborate on this matter, I do not see any relevance to these arguments in this case, where, as stated, we are not dealing with checks that were traded to the plaintiff, but rather the one who pays them and is also the closest party to the transaction with the defendant.
Check Completion
- Before examining the claims on their merits, I will note at this point that although this is a claim that is defined as a promissory note, in my opinion it is not possible to treat the claim as a mere promissory note and place the full burden on the defendant to defend it, for the reasons that will be clarified below.
There is no dispute that the plaintiff, who held the checks in her hands, or at least the check that was intended in her approach to ensure the payment of goods, filled out the amount of the checks and presented them for payment. The checks were not honored and therefore submitted for execution at the Execution Office.