IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 RSA.No. 905 of 2009() --------------------- AS.202/2006 of ADDL.SUB COURT, IRINJALAKUDA OS.1053/2001 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------- THE MATHILAKAM RELIEF COMPANY LTD, MATHILAKAM,PAPPINIVATTOM VILLAGE,KODUNGALLUR TALUK REPRESENTED BY ITS MANAGING DIRECTOR,O.T.DANIEL, AGED 84 YEARS,AGRICULTUIRIST,S/O.OLAPPURATH MASNIYAMAKKAL THOMAS,MATHILAKAM.P.O,PAPPINIVATTOM VILLAGE,KODUNGALLUR TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. T.S.VISWANATHAN,AGED 43 YEARS, S/O.SANKARANKUTTY,THAZHISSERY HOUSE,THRIPPEKULAM DESOM,PAPPINIVATTOM VILLAGE,KODUNGALLUR TALUK. 2. VILASINI,AGED 63 YEARS, D/O.PAZHUPARAMBIL KUNJAYYAPPAN,P.O.PADINJARE VEMBALLUR,SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.905 OF 2009 --------------------------------------------- Dated 11th February, 2011 JUDGMENT Plaintiff in O.S.1053/2001 on the file of Munsiff's Court, Kodungallur is the appellant. Defendants are the respondents. Appellant is a company, registered under Indian Companies Act and engaged in conducting chitty. The suit was filed for realisation of Rs.83,008/- contending that first respondent who was the cashier-cum- clerk of the company for the period from 2/5/1990 to 31/3/2001 received kurie amounts from subscribers and though made entries in the pass book, personal ledger, did not make entries in the cash book and misappropriated the money and therefore, appellant is entitled to realise the same. RSA 905/09 2 It was contended that to shield the property, first respondent transferred the property in favour of second respondent, the mother-in-law. It is contended that though first respondent used to receive the amount and made entries in kuri pass book of the subscribers and the personal ledger of the company, he did not enter the payment in the day book and that is how he misappropriated the amount and it came to light when Exts.A2 and A3 Special Audit reports were submitted by Mathew Salim Gopinathan and Company, Thrissur, the auditors. 2. First respondent resisted the suit contending that he has not misappropriated any amount and apart from the first respondent there were other employees also and he was faced to give Ext.A1 statement undertaking to pay the amount misappropriated and he has not RSA 905/09 3 committed any misappropriation and hence he is not liable. Second respondent contended that she has purchased the property of the first respondent and his wife, after paying valuable consideration and hence her property cannot be proceeded against. 3. Learned Munsiff on the evidence of PW1 and Exts.A1 to A5 dismissed the suit finding that appellant failed to establish that first respondent collected any amount and did not account for the same. Appellant challenged the judgment before Additional Sub Court, Irinjalakuda in A.S.202/2006. Before first appellate court appellant produced certain documents with a petition filed under Rule 27 of Order XLI of Code of Civil Procedure, to receive them as additional evidence. Learned Additional Sub Judge refused to receive them RSA 905/09 4 as additional evidence and finding that there is no evidence to prove that first respondent collected any amount and did not account for the same, dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. 5. Substantial question of law formulated in the appeal memorandum is whether courts below were justified in discarding the oral and documentary evidence of the plaintiff without drawing the inference as held in Vidhyadhar v. Manikrao and another (1999 (3) SCC 573). Argument of the learned counsel appearing for the appellant is that Exts.A2 and A3 Special Audit reports establish that there was misappropriation of Rs.83,008/- and when it is admitted case that first RSA 905/09 5 respondent was cashier-cum-clerk during the relevant period and he was not examined, courts below should have granted decree. Learned counsel also argued that even though relevant records were not produced before the trial court, before the first appellate court they were produced and those documents establish the plaint claim. 6. As rightly found by the courts below there is no acceptable or reliable evidence to prove that first respondent received any subscription from any of the subscribers and entered the same in their pass books as well as personal register, but did not account in the cash book. Neither any pass book nor any personal register nor the cash book was produced before the trial court. It is admitted that there were other employees than the first RSA 905/09 6 respondent. In such circumstances, unless there is evidence to prove that any amount was collected personally by the first respondent or was entrusted to the first respondent, there cannot be a misappropriation by him. When there is no evidence whatsoever to prove that first respondent has collected any amount for the appellant company and did not account for the same, appellant is not entitled to get a decree for realisation of the amount. As there is no evidence to prove the entrustment, there cannot be a finding of misappropriation. Though it was argued that records were produced before the first appellate court, with a prayer to receive those documents as additional evidence, appellant has to satisfy the requirement provided under Rule 27 of Order XLI of Code of Civil Procedure. When the documents are RSA 905/09 7 necessary to get a decree and they were in the custody of the appellant and were not produced before the trial court, appellant cannot be heard to contend that with due diligence those documents could not be produced or that they are necessary to pronounce better judgment, as without proof no such document could have been admitted in evidence. In such circumstances, no substantial question of law arises for consideration in the second appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.