IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 RSA.NO. 914 OF 2009() --------------------------------- AS.178/2006 OF ADDL.SUB COURT, IRINJALAKUDA OS.93/2003 OF MUNSIFF COURT, KODUNGALLUR .................... APPELLANT – APPELLANT - DEFENDANT ------------------------------------------------------- ABDUL KHADER, AGED 60, S/O. PATHAYA PURACKEL KOCHUMUHAMMED, MADAVANA DESOM, ERIYAD VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S) - RESPONDENT - PLAINTIFF ----------------------------------------------------------- ABDUL KHADER, S/O. ULLISSERY MOIDU, MADAVANA DESOM, ERIYAD VILLAGE, KODUNGALLUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.914 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of October, 2009 J U D G M E N T --------------------- Second Appeal arises from judgment and decree of learned Additional Sub Judge, Irinjalakuda in A.S.No. 178 of 2006 confirming the decree and judgment for realisation of money passed by the court of learned munsiff, Kodungallur in O.S. No.93 of 2003. According to respondent-plaintiff, appellant borrowed Rs.1,00,000/- from him in August, 2002 and issued Ext.A1, cheque dated 30.11.2002 for discharge of that liability. That cheque was dishonoured for insufficiency of funds which is proved by Ext.A2 and consequent to which respondent issued Ext.A4, notice which was served on appellant as proved by Exts.A5 and A6. Appellant sent Ext.A7, reply denying the transaction. Since the amount covered by the cheque was not paid, respondent sued appellant for recovery of the amount with interest. Appellant contended that he had no transaction with respondent, nor did issue any cheque. Abdul Alim, a native of Bangalore was conducting a bus service along Kodungallur-Bangalore route and appellant was an employee at the Kodungallur booking office. Abdul Alim ued to borrow money from one Devarajan who is a close friend of respondent. On 28.3.1999 Abdul Alim borrowed money from R.S.A. No.914 of 2009 -: 2 :- Devarajan and gave cheque as security. Cheque of appellant was given as additional security. Again Abul Alim borrowed Rs.50,000/- from Devarajan and repaid Rs.30,000/- on 5.8.1999. Abdul Alim stopped his bus service. In collusion with Devarajan, respondent filled up and presented the cheque of appellant and filed the suit. Respondent gave evidence as P.W.1 and spoke to his case. Exhibits A1 to A8 are proved on his side. Exhibit A8 is the copy of deposition of appellant in O.S. No.985 of 2003. Appellant gave evidence as D.W.2. D.Ws.1 and 3 are witnesses examined on his side. Exhibit B1 is the copy of private complaint preferred by appellant against Devarajan and respondent. Exhibit B2 is the copy of the report filed by Sub Inspector in that case. Learned munsiff acting on the evidence of respondent found that cheque was issued by the appellant, it was dishonoured for insufficiency of funds, presumption under Section 118 (a) of the Negotiable Instruments Act (for short, “the Act”) has not been rebutted by the appellant and that version of appellant regarding transaction was not believed. Suit was accordingly decreed. Appellant preferred appeal. First appellate court concurred with the finding of trial court and dismissed the appeal. Hence this Second Appeal. It is contended by learned counsel that the defence R.S.A. No.914 of 2009 -: 3 :- set up by the appellant is valid, probable and relationship between Devarajan and respondent was not taken into account by the courts below. 2. Trial court considered the evidence including the evidence let in by the appellant and found that the cheque in question was issued by the appellant. Appellant does not dispute that Ext.A1 is a cheque drawn on his account and it is signed by him. Though that by itself did not amount to admission or proof of due execution of the cheque, it went a long way in proving due execution of the cheque. Respondent has given evidence regarding the transaction and execution of the cheque. It is true that appellant examined D.Ws.1 and 3 also but their evidence was not accepted by the courts below. Courts below have also referred to Exts.B1 and B2. Finding of learned munsiff rests on proper appreciation of evidence and that has been concurred by the appellate court also. Questions decided by the courts are on the facts of the case and based on evidence on record. This Court in Second Appeal can interfere with the finding of fact entered by the first appellate court which concurred with the finding of trial court only when the finding is not supported by any evidence or the finding is perverse. No such situation arises in this case. As such R.S.A. No.914 of 2009 -: 4 :- no question of law is involved in this Second Appeal and it is only to be dismissed. 3. Learned counsel for appellant requested six months’ time to the appellant to deposit the amount . It is stated that appellant is placed in difficult financial situation. Having regard to the circumstances stated by learned counsel appellant is granted three months’ time from this day to deposit the decree amount in the trial court. With the above observation, Second Appeal is dismissed in limine. Interlocutory Application Nos.2011 and 2012 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv