IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 A.S.No. 45 of 1995 (D) --------------------------------- O.S.168/1991 of SUB COURT, KOTTARAKKARA .................... APPELLANT / PLAINTIFF: E.K.RAJU HARSHA NIVAS KOLANNOOR EZHUKONE BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE RESPONDENT/ DEFENDANT: HARINDRAN THAYIL VEEDU KOLANNOOR EZHUKONE ADV. SRI.P.B.SURESH KUMAR (QUILON) THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON 14/07/2009 DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.45 OF 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2009 JUDGMENT Basheer, J: The appellant is the plaintiff in a suit for realization of money covered under a cheque. The Court below dismissed the suit holding that the plaintiff had failed to prove his case as alleged in the plaint. 2. The case of the plaintiff in brief was that the respondent / defendant had borrowed Rs.80,000/- from his (Rs.40,000/- each on two occassions) on 30th October 1986 and 16th November 1987. When the plaintiff made a demand for return of the money on July 10, 1989, the defendant issued a post dated cheque for the above sum of Rs.80,000/- drawn on Indian Overseas Bank, Ezhukone Branch. But when the cheque was presented, it was dishonoured with the endorsement “not arranged for”. Plaintiff issued a demand notice to the defendant. On request made by the defendant, the cheque was presented again. It was dishonoured yet again. Though another demand notice was issued to the defendant, he did not discharge his liability. Hence the suit. 3. In his written statement, the defendant contended that he had never borrowed any money from the plaintiff. In fact, he had borrowed a sum of Rs.7,000/- from the brother of the plaintiff Sri.E.K.Bhasu on A.S.No.45 OF 1995 2 October 30, 1986. The cheque mentioned by the plaintiff in the plaint was the blank signed cheque handed over by the defendant to Sri.Bhasu as security. It was further contended that the said blank cheque might have been materially altered by the plaintiff by inserting his name and the exorbitant amount in the same. 4. The court below framed the following issues on the basis of the pleadings of the parties. (i) Is not the suit maintainable. (ii) Whether the cheque dated, 14-07-1989 was issued by the defendant to the plaintiff for consideration. (iii) Whether there is any material alteration in the cheque as contended. (iv) What if any is the interest awardable. (v) Reliefs and costs. 5. Plaintiff was examined as PW1 and Exts.A1 to A9 were marked on his side. The defendant got himself examined as DW1. His witness was examined as DW2. Exts.B1 to B9 were also marked on his side. 6. The court below, after considering the oral and documentary evidences available on record, found that the plaintiff was not entitled to succeed and accordingly dismissed the suit. 7. It may at once be noticed that the specific case of the plaintiff was that the defendant had borrowed money from him on two occasions. A.S.No.45 OF 1995 3 According to the plaintiff, the defendant borrowed a sum of Rs.40,000/- on October 30, 1986 and a further sum of Rs.40,000/- on November 16, 1987. But the plaintiff averred in the plaint that he had approached the defendant for return of the money only on July 10, 1989. On that day, the defendant issued a cheque bearing No.456867 dated July 14, 1989 for a sum of Rs.80,000/- drawn on Indian Overseas Bank, Ezhukone Branch. The said cheque was marked as Ext.A1. 8. As mentioned earlier, the cheque was presented twice before the Bank; and on both occasions, it was dishonoured. We need not refer to the alleged and disputed circumstances under which the cheque had happened to be presented twice at this juncture. 9. It was noticed by the court below that Ext.B6 certified copy of ledger folio in respect of the account maintained by the defendant revealed a totally different story. Between May 1985 and November 1987, the Bank had issued five cheque books to the defendant. Cheque book containing cheque leaves bearing Nos.456861 to 456870 was issued to the defendant on May 25, 1985. According to the plaintiff, cheque leaf bearing No.456867 was issued by the defendant to him on July 10, 1989. But entries in Ext.B6 ledger folio revealed that between June 1986 and November 1987, four other cheque books containing 10 leaves each were issued by the Bank to the defendant and all these cheque leaves were A.S.No.45 OF 1995 4 utilized by the defendant shortly after they were issued. In this context, it was also noticed by the court below that the first leaf of the cheque book containing the one involved in this case (Ext.A1) was encashed on June 4, 1985. All the other cheque leaves except the crucial one involved in this case (Cheque No.456867) were utilized by the defendant by April 1986. To be specific, the last cheque leaf in the said cheque book bearing leaf No.476870 was utilized by the defendant and encashed through his account on April 18, 1986. Thus, the court below noticed that the case of the defendant that he had handed over a blank signed cheque bearing No.456867 to the brother of the plaintiff on October 30, 1986 was eminently probable and possible. 10. It had come out from the evidence of PW1 while he was examined before the court as PW1, that he had been lending money to several people in thousands. He had also admitted that he had obtained documents like, promissory notes, cheques, etc. whenever he advanced money. But admittedly, the plaintiff had not obtained any receipt or acknowledgment from the defendant when he allegedly advanced the huge sum of Rs.40,000/- each on two occassions. Going by the pleadings in the plaint, the plaintiff demanded return of the money from the defendant only on July 10, 1989. There is nothing on record to show that the defendant was either a close relative or friend of the plaintiff in whom A.S.No.45 OF 1995 5 he had some kind of trust or faith not to insist for a receipt or such other document acknowledging payment of such huge sums on two occasions. 11. In this context, it may also be worthwhile to mention that the defendant had a specific case that he had handed over a blank signed cheque to the brother of the plaintiff. It had come out in evidence and also on perusal with the naked eye that there was marked difference in the colour of the ink used for the signature of the drawer and the other entries in the cheque. 12. In the course of cross-examination, the plaintiff had stated that documents were available with him to show that he had sufficient money with him to lend to the defendant on the two occasions. But no such documents were produced by him. Though he stated that he was earning very good income from his contract business, he asserted that he was not an assessee to Income tax. It had further come out in evidence that the plaintiff had filed several cases against PW2 and other persons who according to the defendant had borrowed money from the plaintiff on several occassions as part of his money lending business. Though the defendant had a further case that the brother of the plaintiff, was also a money lender, the plaintiff pleaded ignorance about the above suggestion in the course of his cross-examination. A.S.No.45 OF 1995 6 We have carefully perused the oral and documentary evidence adduced by the parties before the court below. We have also gone through the judgment impugned in this case. Having carefully considered the oral and documentary evidence available in the case, we do not find any reason to interfere with the conclusion made by the court below. In our view, the court below was justified in refusing to grant a decree to the plaintiff. The contentions raised by the appellant/plaintiff in this appeal are without any merit. The appeal fails and it is accordingly dismissed. (A.K.BASHEER, JUDGE) (P.S.GOPINATHAN, JUDGE) jes A.S.No.45 OF 1995 7 A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.45 OF 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 14th July, 2009