IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 RSA.No. 966 of 2007() --------------------- AS.59/2003 of ADDL. DISTRICT COURT-II, KOZHIKODE OS.55/1998 of PRL.M.C.,KOZHIKODE-II .................... : APPELLANT/RESPONDENT/DEFENDANT ----------------------------------------------- MOHAMED V.P., AGED 53 YEARS, S/O.AHAMED KUTTY, RESIDING AT PEEYAM MANZIL, KOLATHARA, CHERVANOOR AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: APPELLANT/PLAINTIFF -------------------------------- MOHAMED MUSTHAFA K.T., AGED 52 YEARS, S/O.KUNHAMMU, RESIDING AT POONTHURUTHI PARAMBA, P.O.CHELAVANOOR, KUNNAMANGALAM, KASARAGODE TALUK AND DISTRICT. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.2058/2007 IN R.S.A.NO.966/2007 20.2.2008 DISMISSED SD/- M.Sasidharan Nambiar Judge /true copy/ P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 966 OF 2007 =========================== Dated this the 20th day of February, 2008 JUDGMENT Defendant in O.S.55/1998 on the file of Munsiff Court, Kozhikode is the appellant. Plaintiff is the respondent. Respondent instituted the suit for realisation of Rs.25,000/- borrowed by appellant on 1.11.1997 contending that on 1.12.1997 he issued Ext.A2 cheque drawn in his account maintained in Thalassery Branch of Kannur District Co-operative Bank Ltd and when the cheque was presented for encashment on 1.12.1997 it was dishonoured on the ground that account was closed. It was contended that appellant had sent Ext.A5 notice after issuance of Ext.A3 cheque, contending that he had entrusted signed blank cheque leaves and Ext.A6 reply was sent denying the case. Respondent contended that as appellant did not pay the amount, he is entitled to a decree for realisation of the amount with interest at 12%. R.S.A.966/2007 2 Appellant resisted the suit contending that he did not borrow any amount and did not issue the cheque as alleged. It was contended that appellant firmly believed that the cheque referred to in the plaint was concocted by respondent using blank cheque leaves handed over to respondent by appellant while he was working under the appellant as his Supervisor and he had the habit of entrusting blank cheque leaves to the respondent to meet the contingent expenses at the work site as the appellant was a contractor. As he did not borrow any amount and did not issue the cheque, he is not liable to pay the amount. 2. Learned Munsiff on the evidence of PW1, DW1 and Exts.A1to A6 and Exts.B1 to B7 dismissed the suit holding that respondent did not establish the loan transaction. Learned Munsiff found that as against the appellant, C.C.972/1998 and o.S.289/1997 were filed by one Muhammed Kunhi and Sukumaran which were dismissed under Ext.B3 and B4 judgments and it supports the case of appellant that he had entrusted signed stamp paper and cheque leaves to respondent as deposed by DW1. R.S.A.966/2007 3 Learned Munsiff also found that eventhough Ext.A3 cheque was dishonoured, no notice was sent demanding the amount and it supports the case of appellant that there was no transaction. It was further found that as appellant had sufficient amount in his bank account there was no necessity for him to borrow the amount. Plaintiff challenged the judgment before Additional District Court, Kozhikode in A.S.59/2003. Learned Additional District Judge on reappreciation of evidence set aside the findings of learned Munsiff and granted a decree. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of the learned counsel is that first appellate court should not have interfered with the appreciation of evidence by the trial court, when the trial court had the advantage of noting the demeanour of the witnesses examined. When under Ext.A5 notice appellant had called respondent to return the signed cheque leaves and signed stamp papers entrusted to him while he was working under appellant as his supervisor and R.S.A.966/2007 4 Ext.A5 notice was sent much prior to the presentation of Ext.A2 cheque for encashment by the respondent, and in such circumstances first appellate court was not justified in interfering with the findings of the trial court. It was also argued that when Ext.B6 and B7 series establish that appellant had sufficient amount in his account in Kannur District Co-opertive Bank, finding of trial court that appellant had no necessity to borrow the amount should not have been interfered by the first appellate court and the decree granted is not sustainable. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. Respondent contended that appellant borrowed Rs.25,000/- on 1.11.1997 and subsequently issued Ext.A2 cheque on 12.11.1997 towards its repayment. What was contended by appellant was that Ext.A3 cheque was not issued towards the repayment of any amount borrowed. Instead signed blank cheque leaves were entrusted by the appellant, as the respondent was working as a R.S.A.966/2007 5 Supervisor under the appellant and such entrustment was necessary to carry out the contract work. Learned Munsiff believed that evidence. First appellate court did not believe it. The argument of learned counsel is that as Ext.A5 notice was sent prior to the presentation of the cheque and so there was no justification for not believing the version of DW1. When it is the specific case of respondent that amount was borrowed on 1.11.1997 and Ext.A2 cheque was issued on 12.11.1997, sending of Ext.A5 notice subsequent to the issuance of the cheque alleging that blank cheque leaves were entrusted is not very material. After issuance of the cheque appellant can sent such a notice and because of the existence of the notice, it cannot be said that case of the appellant is to be believed. Again the argument that appellant has sufficient amount in his bank account is not a sufficient ground to hold that appellant had no necessity to borrow the amount. If in fact appellant had borrowed the amount from the respondent, respondent cannot go to the bank of the appellant and find out whether he had sufficient R.S.A.966/2007 6 amount in his account and also whether appellant had the necessity to borrow the amount. The fact that a suit filed by a third party or a complaint preferred by a third party were dismissed as evidenced by Exts.B3 or B4 judgments is not a valid reason to disbelieve PW1 or to non suit respondent. First appellate court on appreciation of evidence accepted the evidence of PW1 and disblieved the case of DW1. I do not find that the appreciation of evidence was perverse. The finding of fact by first appellate court shall be final. So long as the appreciation of evidence was not perverse and first appellate court did not overlook material evidence or did not rely on extraneous evidence, which should not have been relied on, it is not for this court to reappreciate the evidence in exercise of the powers of this court under section 100 of Code of Civil Procedure. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006