IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 AS.No. 286 of 1996() ----------------------------- OS.226/1994 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT(S): DEFENDANT ---------------------- K.G.ARAVINDAKSHAN NAIR, SUNDER BHAVAN, SEA VIEW, WARD, GUJARATI, STREET, ALLEPPEY. BY ADV. SRI.M.V.MATHEW RESPONDENT(S): PLAINTIFF -------------------------- SMT.KANAKAMMA, KANALALAYAM HOUSE, SOUTH ARYAD P.O., ALLEPPEY. ADV. SRI.GEORGE CHERIAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO. 1908/1996 IN AS. NO.286/1996 Dismissed 14.01.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== AS No.286 OF 1996 ===================== Dated this the 14th day of January 2009 JUDGMENT This appeal is preferred against the judgment and decree of the Addl.Sub Court, Alappuzha in O.S.No.226 of 1994. The suit is one for realisation of money due under two transactions and the trial court had decreed the suit in favour of the plaintiff. It is against that decision, the defendant has come up in appeal. 2. The point that arises for determination in the appeal are:(1) Whether the suit transaction is proved by the plaintiff, (2)Whether she is entitled to the decree and (3) Is there anything wrong in the decree granted by the trial court. 3.Points 1 to 3. For the sake of convenience all these points are answered together. It is the case of the plaintiff that the defendant had borrowed Rs.3,000/- and Rs.25,000/- on 22.7.1991 and on 14.10.1992 respectively and had issued cheques in favour of the plaintiff to be used as security. In spite of notice, the defendant did not pay the amount and hence the suit. AS 286/1996 -:2:- 2. On the other hand, the defendant would contend that the plaintiff is the younger sister of defendant's wife's mother. There was dispute between the husband and wife and at one point of time he had kept signed cheques in his house which has been stealthily removed by the wife and handed over to the plaintiff and had instituted the suit. It is also contended that the plaintiff was in America at the relevant point of time and so there could not have been any transaction as alleged in the plaint. 3. The trial court considered the documentary evidence, Exts.A1 to A5 and the evidence of PW! and DW1. The plaintiff had deposed before court that the defendant had borrowed the amount and had given cheques as security on the relevant dates mentioned and when the amount was not paid a Lawyer notice was issued for which the defendant did not send any reply. He did not pay the amount also. The suggestion that cheques were stealthily removed from his custody by the wife of the defendant and handed over to the plaintiff is denied. The plaintiff had filed an affidavit to the effect that she is not even holding a passport and she had not left India. To emphasize the points urged he produced Ext.B1 which would only show that the plaintiff has closed her account with the Federal Bank. It cannot be taken as if she had left the country thereafter. I have analyzed the evidence of DW1. From his evidence, it is clear that himself and wife were residing AS 286/1996 -:3:- together under the same roof till 1993. It is also admitted that in the cheques written he had put dates mentioned the amount and signed. So the case that the wife had removed the cheques and handed over to the plaintiff cannot be accepted in the light of the fact that there was no quarrel between the husband and wife during 1991. There is a specific admission with respect to the writing and signature in those cheques. It has also to be remembered that the defendant is not an ordinary person, but is an employee of the bank. Similarly, the contention that the plaintiff was not available in station also is not correct in the light of the version given by PW1. So, there was no necessity for this person to issue cheques and since cheques have come from the custody of the plaintiff, it has to be stated that the version given by PW1 regarding the transaction is true. The plaintiff issued a Lawyer notice demanding the amount, but the defendant did not send a reply. If really there had been no transaction the defendant would not have kept quite and that also shows that what he speaks is not true. The preponderance of probabilities and on analysis of the evidence of PW1 and DW1, I have no hesitation to hold that the version of PW1 is acceptable and therefore the suit transaction is proved as well as the non-payment by the defendant. Therefore there is nothing to interfere with the decision rendered by the trial court. Therefore the appeal lacks merit and the same is AS 286/1996 -:4:- dismissed. But under the circumstances without any order as to costs. M.N.KRISHNAN, JUDGE Cdp/-