IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 AS.No. 525 of 2000(D) --------------------- OS.1114/1992 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): DEFENDANT -------------- M.A.KALAM, S/O MOIDEENKANNU LABBA AGED 46 YEARS, RESIDING IN T.C.44/421 KAMALESWARAM, MANACAUD P.O. THIRUVANANTHAPURAM BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.P.J.JOSEPH SRI.GEORGE MATHEW RESPONDENT(S): PLAINTIFF --------------- V.J.RAJAN, T.C.3/968, AGED 35 YEARS THOPPIL LANE, MUTTADA, THIRUVANANTHAPURAM NOW RESIDING IN KAVITHAVANA, UNIVERSITY ROAD THIRUVANANTHAPURAM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON 6/11/2009 DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.525 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of November, 2009 JUDGMENT In this appeal, the defeated defendant in O.S.No.1114/1992 of Principal Sub Court, Thiruvananthapuram challenges the judgment and decree dated August 31, 1999 granting a decree for recovery of the money due on a dishonoured cheque. 2. The case of the respondent/plaintiff as detailed in the plaint and as testified by him as PW1 before the lower court in brief is this : The appellant/defendant borrowed Rs. 20,000/- from the plaintiff for which the defendant issued the cheque Ext.A2 on August 14, 1989 drawn on the Vallakadavu branch of Bank of Baroda which when presented for collection twice was returned for want of sufficiency of funds in the account of the appellant in the bank. For the amount received defendant has issued the receipt Ext.A1. In spite of the notice Ext.A5 dated 8/9/1989 the appellant did not repay the amount. The cheque was issued in the joint name of the plaintiff and one A.S.No.525/2000 Page numbers Karunakaran Kutty. The said Karunakaran Kutty authorised the plaintiff to present the cheque. The criminal complaint filed by the plaintiff was dismissed for want of notice. Hence the suit. 3. The appellant/defendant resisted the suit contending thus : The issuance of Ext.A1 receipt dated 14.8.1989 is admitted . But no amount was paid to defendant. The cheque Ext.A2 was handed over to the plaintiff on 16-8-1989. A cheque bearing No. 0880603 drawn on South Indian Bank was issued by the plaintiff to defendant. It was not encashed as the letter 'bearer' was scored off. Thereafter another cheque No.0880604 was issued to the defendant by the plaintiff and Karunakaran Kutty. As demanded by plaintiff and Karunakaran Kutty, defendant issued the receipt Ext.A1 and signed on the back side of Ext.A2 cheque. Plaintiff without handing over Ext.A2 encashed it by himself. Believing that plaintiff will pay the amount, defendant issued Ext.A2 cheque bearing No.354673 . Therefore, it is not supported by consideration. Defendant has issued the notice Ext.A4 to the plaintiff on 11/9/1989. Plaintiff issued the notice Ext.A5 dated 8-9-1989 for which the defendant received the reply notice Ext.A6 dated A.S.No.525/2000 Page numbers 30-09-1989. Therefore the suit may be dismissed with costs. 4. PWs 1 and 2 were examined and Exts.A1 to A12 were marked by the plaintiff. DW1 to DW3 were examined and Exts.B15 and Exts.X1 to X4 were marked by the defendant before the lower court. The learned Sub Judge accepted the evidence of plaintiff and rejected that of defendant and decreed the suit with costs as prayed for. Defendant challenges the said decree and judgment in the appeal. 5. The following points arise for consideration : 1) Whether the cheque Ext.A2 is supported by consideration ? 2) Whether the judgment and decree of lower court can be sustained ? Point Nos. 1 and 2 6. The case of the respondent/plaintiff as testified by him as PW1 before the lower court was that defendant DW1 borrowed Rs. 20,000/- from him on 14/08/1989 and to discharge that liability DW1 issued the cheque Ext.P2 dated 14/08/2009 which when presented for encashment was returned dishonoured for want of A.S.No.525/2000 Page numbers sufficiency of funds in the account of the appellant in the Bank and that in spite of the notice Ext.A5 dated 8/9/1989, the appellant did not repay the amount. 7. The payment of the amount was made through Cheque No.0880604 Ext.X1 dated 14/8/1984. Ext.A1 is the receipt issued by the defendant in which details of Ext.A1 are seen mentioned and details of cheque Ext.A2 are also seen mentioned there. Execution of Ext.A1 is admitted by defendant. According to him, Ext.X1 cheque was not handed over to him, that as suggested by PW1, he signed on the back side of the cheque Ext.X1 and issued the receipt Ext.A1 and that it was PW1 who encashed Ext.X1. There is no merit in the above contention. Ext.X1 cheque was seen encashed on 14/08/1989 and PW2 and PW3 are the Assistant Managers of South Indian Bank, Main Branch, Thrissur . They testified that the amount was given to the person who signed on the back side of the cheque, i.e. to DW1. It is clear from the above that DW1 has encashed the cheque issued to him by PW1. It follows that Ext.A2 cheque is supported by consideration. 8. An attempt was made by defendant by producing Ext.B2 A.S.No.525/2000 Page numbers and B12 that Ext.A2 cheque was not handed over to him. The lower court for convincing and cogent reasons rejected those documents. Ext.B12 is a typed note containing the alleged signature of PW1 in which it is stated that PW1 has taken the signature of DW1 on the back side of Ext.X1 and collected the amount. Ext.B2 is a receipt allegedly in the handwriting of PW1. I have gone through Ext.B12 and B2. A mere look at the document would show that the same were concocted to escape from the liability. Therefore, I am inclined to confirm the above finding of lower court that the same was created for the purpose of this case. I have gone through the evidence of PW1 to PW3 and DW1 to DW3. In my view the learned Sub Judge is perfectly justified in accepting the evidence of plaintiff and rejecting the contentions of defendant and holding that Ext.A2 cheque was supported by consideration and decreeing the suit. That being so, the impugned judgment and decree of lower court has to be confirmed and the appeal has to be dismissed. In the result, the appeal is dismissed with cost. P.Q.BARKATH ALI JUDGE sv. A.S.No.525/2000 Page numbers