IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 AS.No. 288 of 1996() ------------------------------ OS.442/1994 of SUB COURT, PALA .................... APPELLANT/DEFENDANT: --------------------------------------- BABUJI JOSE, MALAMPARAMBIL, KURUVINAKUNNEL HOUSE, EDAMATTOM KARA, POOVARANI VILLAGE. BY SMT.SUMATHI DANDAPANI, SENIOR ADVOCATE, ADV. K.JAJU BABU. RESPONDENT/PLAINTIFF: -------------------------------------- MATHAI MATHEW, KALLIKKADU VEEDU, ELAMKULAM KARA, KOTTAYAM DISTRICT. BY ADV. SRI.S.ANANTHA SUBRAMANYAN, SRI. S. SHYAM, SRI.N.K.KARNIS, SRI.PHILIP M.VARGHESE. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. AS.No. 288 of 1996 ORDER ON CM.P. NO.2338/1996 IN A.S. NO.288/1996 DISMISSED 02/07/2010. SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- A.S.NO.288 OF 1996 (A) ----------------------------------- Dated this the 2nd day of July, 2010 J U D G M E N T THOTTATHIL B. RADHAKRISHNAN, J. The defendant in a suit for money is the appellant. 2. The plaintiff alleged that the defendant issued a promissory note to him and thereafter refused to pay. There is no pleading in the plaint as to any of the demands made on the basis of the promissory note, though it is stated that the amount has not been paid in spite of repeated demands. The plaintiff did not issue any suit notice prior to the institution of the suit though the suit was filed on 23.11.1992, just after one year of the alleged execution of the promissory note on 15.10.1991. The cause of action is pleaded as arising on the date of the alleged note, without stating any date on which the demand was made for the amount allegedly due under the note. We notice this specifically in the context of the fact that, as already noted, no A.S.288/96 2 suit notice has been issued. The suit was filed even without a pleading that the plaintiff had given any amount to the defendant. 3. The defendant denied the execution of the alleged promissory note and contended that he had no need at all to borrow any money or execute any promissory note in favour of the plaintiff. He pleaded that years before the suit, he had migrated to Markara District in Karnataka from Pala in Kerala, and that, in the family partition, the plaintiff had to execute a receipt in favour of one of his brothers for having received certain amounts. He pleaded that the said brother, who is named by him, later came to be on enimical terms and he is instrumental in the institution of the suit and that the alleged promissory note is apparently created utilising the signature available in the receipt that was given by the defendant to his brother. 4. Before court, the plaintiff gave evidence as PW1. It came out that he, essentially, was a lorry driver or a lorry broker. A.S.288/96 3 He stated that he had owned a lorry at an earlier point of time, however that, he sold it off and had lent the amount generated by that sale to yet another person. He conceded before court that he was depending on his father before he started working in the sector of lorries. The plea projected by him in his evidence regarding the execution of the promissory note is that the defendant used to go to Pala and stay in a lodge from where the promissory note was executed. PW2, cited as the scribe of the note, belonged to Kannur. He stated that he saw the defendant receiving Rs.1,25,000/- from the plaintiff and also signing the promissory note. The defendant mounted the box and deposed denying his signature as it occurs in the note, however, saying that the portion of the signature on the revenue stamp stuck on the promissory note appears to be similar to his signature. 5. With the aforesaid materials, the court below took the view that though the defendant had stated that he is a man of sufficient means who used to get income of about Rs.2 lakhs from his cardamom and coffee cultivation in Markara District, he had not come forward with any evidence, particularly, A.S.288/96 4 documentary, in support of that claim. Having proceeded in that angle, the court below held that the defendant's plea that he is a man of sufficient means is not shown and that the testimony of PW2 could be treated as trustworthy. The evidence of PW1 was not much relied on by the court below. 6. The court below, however, dismissed an application filed by the defendant for sending the disputed promissory note for expert opinion. The said order dismissing that request was made contemporaneous with the decree though the application for sending the pronote to the expert for opinion had been pending for nearly an year. This position, notwithstanding, the court below perused the pronote and came to the conclusion that the signature on the pronote appears to be that of the defendant. Accordingly, a decree for recovery of money with interests and costs was passed. 7. Before us, the learned counsel for the appellant argued that the pronote having been disputed, the court below acted illegally for refusing to send that document for expert opinion. It A.S.288/96 5 was further argued that even if a presumption is available in terms of Section 118 of the Negotiable Instruments Act to the effect that the note, being a negotiable instrument, is supported by consideration, the totality of the materials on record and the available presumption and alleged inferences on the basis of the materials, unequivocally lead to the conclusion that the contrary to that presumption stands proved. He further argued that the burden of proof has been wrongly cast in as much as the court essentially was searching for the means of the defendant rather than require the plaintiff to prove his means having regard to the defence and also the fact that even the plaint did not contain an averment that contemporaneous with the execution of the pronote, the plaintiff had paid the defendant the amount of Rs.1,25,000/-. It was argued that the testimony of PW2 that he saw the defendant receiving the amount of Rs.1,25,000/- from the plaintiff in the lodge ought not have been countenanced on the face of the total lack of pleading in that regard in the plaint. It was also argued that the court below totally lost sight of the lack of credibility in the evidence of PW1. A.S.288/96 6 8. While PW1, the plaintiff, initially attempted to say that he owned a lorry and that he has different transactions, what ultimately came out was that he was a driver in a lorry, and that, at the relevant point of time, he did not have any fair means of providing Rs.1,25,000/- to the defendant. The plaintiff had stated in cross examination that apart from his so-called activities in lorries, he depended on his father for his living and had no other independent source of income. The case attempted to be pushed in evidence is that an amount of Rs.1,25,000/- was brought by the plaintiff, in cash, to the lodge room where the defendant stayed and paid to the defendant in the presence of PW2 and another attesting witness. However, that attesting witness was not examined. PW2 says that he came over to Pala from Kannur in connection with his search for employment and was available in Pala. The plaintiff did not deny the link between him and the brother of the defendant as pleaded and spoken to by the defendant. Ext.B1, the family partition, nearly 11 years before the alleged execution of the pronote, contains the undertaking of the defendant to pay off his brother. It is his case that he and his brother are at loggerheads and that there were A.S.288/96 7 even litigations between them and when he comes over to Pala, he stays with his sister, who has some proceedings in relation to her matrimonial life pending before the competent court. The evidence of defendant, on its totality, inspires confidence, in as much as, there was no challenge by the plaintiff to the assertion of the defendant in court, that he had, essentially, migrated to Markara in Karnataka and was living there as a cultivator. The court below had before it, different materials including the telephone bill and driving licence of the defendant which showed that he had settled in Markara. If that were so, the totality of the evidence on record should have been weighed to ascertain whether the transaction pleaded by the plaintiff, which stands denied, inspires confidence at least to succeed a test of preponderance of probabilities. With the entire materials before it, the court below could have come to the only conclusion that the story set up by the plaintiff is so improbable that no prudent man, under the circumstances pleaded in the case, would act on the supposition that the facts pleaded exists. The availability of a presumption under Section 118 of the Negotiable Instruments Act does not give that presumption more weight merely because A.S.288/96 8 the court is obliged by law to draw the presumption in terms of Section 118 of the N.I.Act. Not only that, the question of presumption under Section 118 of the N.I.Act comes into play only in the event of a negotiable instrument being admitted or its execution being proved. On the face of a challenge to its alleged execution, the overwhelming evidence on record was against any finding that the alleged pronote was executed by the defendant. Therefore, the presumption under Section 118 does not get attracted in such a case. We would also make reference to the decision of this Court in Venkiteswara Iyer v. Appukutty Muthan (1986 KLT SN 25 (C.No.45)), wherein a Division Bench held that in a case where the execution of the promissory note is denied, the burden is on the plaintiff to prove its execution and also the passing of the consideration. This is a case where there is no credible legal evidence in proof of execution of pronote by the defendant. There is also no shred of legal evidence that the alleged note is supported by consideration. For the aforesaid reasons, this appeal is allowed setting A.S.288/96 9 aside the impugned decree and judgment and dismissing the suit with costs through out. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- A.S.NO.288 OF 1996 () ----------------------------------- J U D G M E N T 2nd day of July, 2010 A.S.288/96 11