IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 CRP.No. 2089 of 2002 AS.40/1999 OF ADDL.SUB COURT, THALASSERY OS.234/1998 OF MUNSIFF'S COURT, KUTHUPARAMBA REVN. PETITIONER: RESPONDENT:DEFENDANT: ------------------------------------------------ P.M.BHASKARAN, S/O.CHATHU, LASCAR, PAZHASSI IRRIGATION PROJECT (THALASSERY SECTION), P.O.KUTHUPARAMBA KUTHUPARAMBA AMSOM, NARAVOOR DESOM, THALASSERY TALUK. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT: APPELLANT:PLAINTIFF: -------------------------------- A.GOPALAN, S/O.LATE K.CHATHU, RETIRED PROFESSOR, RESIDING AT 'SARGA'. MANGATTIDAM AMSOM, AMBILAD DESOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.M.P.NO.5161/2002 IN C.R.P.NO.2089/2002 DISMISSED 06/02/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- C.R.P. NO. 2089 OF 2002 D -------------------------------------------- Dated this the 6th February, 2008 O R D E R The defendant in O.S. 234 of 1998, on the file of the Court of the Munsiff, Kuthuparamba is the revision petitioner. The suit was filed by the respondent for realisation of a sum of Rs. 5,000/- with interest. The trial court dismissed the suit. On appeal by the plaintiff, the Appellate Court set aside the judgment and decree of the trial court and decreed the suit, directing the defendant to pay a sum of Rs. 5,000/- with interest at 6% per annum from 04.04.1995 till realisation with costs throughout. 2. The plaintiff is a retired professor. The defendant was a lascar in Pazhassi Irrigation Project and now he has also retired from service. The plaintiff and defendant are neighbours. It is an admitted case that the children of the defendant used to help in the household work of the plaintiff. 3. The case of the plaintiff is that on 04.04.1995, he delivered a self drawn cheque for Rs.5,000/- drawn on the State Bank of India, Kuthuparamba to the defendant with a request to encash and to hand over the proceeds to the plaintiff. The plaintiff stated that he did so as he had to go to Calicut urgently. The plaintiff alleged that the defendant encashed the cheque, but he did not pay the amount to the plaintiff. It is stated that the defendant told the plaintiff that the amount was appropriated for some other pressing need and that the defendant C.R.P. NO.2089 OF 2002 :: 2 :: promised to return the amount after the salary was drawn. However, the defendant did not keep up his promise. On 24.10.1996, a registered notice was sent to the defendant. He sent a reply notice denying the receipt of the cheque and encashment of the cheque as alleged. The plaintiff filed a complaint as C.C.No.895 of 1996 before the Court of the Judicial Magistrate of the First Class, Kuthuparamba against the defendant alleging offence under Sections 406 and 420 of the Indian Penal Code. 4. The defendant denied the receipt of the cheque and encashment of the same by him. It was contended that the defendant was not conversant with bank transactions. He contended that the cheque was entrusted by the plaintiff to the son of the defendant but his son could not go since he was ill. When the defendant expressed his inability and inexperience, his son instructed the defendant to put his signature on the reverse of the cheque. Accordingly, the defendant put his signature. However, the plaintiff came back and collected the cheque from the son of the defendant. Later, the cheque was encashed by the plaintiff himself. It was also alleged that the plaintiff used to make repeated visits in the defendants quarters while the wife of the defendant alone was there. The defendant had to complain about this to the plaintiff and he was asked not to visit the quarters again. This provoked the plaintiff and the criminal case was foisted against him. The suit was also filed in these circumstances. 5. The trial court held that the evidence does not probabilise the version of the plaintiff that he had delivered the cheque to the defendant for encashment C.R.P. NO.2089 OF 2002 :: 3 :: and that the defendant had encashed it. Accordingly, the suit was dismissed. The Appellate Court, on appreciation of the evidence, held that the only possible and irresistible conclusion that could be arrived at is that the cheque was encashed by the defendant himself. The version of the Bank Manager who was examined as PW2 was relied on by the court below. Accordingly, the suit was decreed by the Appellate Court. 6. It was brought to my notice that though the defendant was acquitted by the trial court in C.C.No.895 of 1996, on appeal by the plaintiff in the present suit as Crl.A.No.500 of 1999, the High Court convicted the defendant in the present suit for offence under Section 420 of the Indian Penal Code and he was sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. It was also held that the fine amount, if realised, shall be paid to the complainant (plaintiff in the present suit). It is also submitted by the counsel on either side that the defendant suffered the imprisonment till the rising of the Court and also paid the fine amount. The amount of fine was paid over to the plaintiff. 7. The Appellate Court has considered the oral and documentary evidence in the case and came to the conclusion, on facts, that the cheque in question was encashed by the defendant. The case put forward by the defendant was disbelieved by the court below. There is no case for the defendant that he repaid the amount to the plaintiff. The finding of the Appellate C.R.P. NO.2089 OF 2002 :: 4 :: Court is on the basis of appreciation of evidence. In a Revision under Section 115 of the Code of Civil Procedure, the revisional court would not be justified in upsetting the finding of fact arrived at by the Lower Appellate Court. 8. However, it is admitted that the plaintiff has received Rs.5,000/- on account of the same transaction, though the amount represents the fine which was directed to be paid by the defendant. So far as the plaintiff is concerned, he has received the principal amount by initiating prosecution against the defendant. If the decree is executed as such against the defendant, the result would be the plaintiff would get the decree amount with interest as well as the fine amount which represents the amount covered by the cheque. In the peculiar facts and circumstances of the case and taking into account the fact that the defendant is a retired last grade servant, I am of the view that the amount of Rs.5,000/- paid as fine as per the judgment in Crl.A.No.500 of 1999 shall be treated as payment towards the decree debt in the present suit. In other words, the plaintiff would be entitled to realise only the balance amount as per the decree. With the above modification, the Civil Revision Petition is disposed of. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- C.R.P.NO. 2089 OF 2002 D O R D E R 6th February, 2008 -------------------------------------------