IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 AS.No. 385 of 2001(E) --------------------- OS.265/1991 of SUB COURT, MAVELIKKARA .................... APPELLANT(S): PLAINTIFF: ------------------------------------------- V.RAJU, KAROOR HOUSE, ILIPPAKULAM, VALLIKUNNAM, MAVELIKKARA. BY ADV. SRI.R.RAJASEKHARAN PILLAI RESPONDENT(S): DEFENDANT: ----------------------------------------------- K.N.SAHADEVAN, ABHILASH HOUSE, ILIPPAKULAM, VALLIKUNNAM, MAVELIKKARA. BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/06/2010 ALONG WITH AS NO. 452 OF 2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. Nos.385 & 452 OF 2001 = = = = = = = = = = = = = = = Dated this the 9th day of June, 2010. J U D G M E N T A.S.452/01 is preferred against the judgment and decree passed by the Subordinate Judge, Mavelikkara in O.S.20/93. A.S. 385/01 is an appeal preferred the judgment and decree in O.S.265/91 of the Subordinate Judge, Mavelikkara. O.S.265/91 is a suit filed by the plaintiff to declare that the cheque issued by him is invalid in law as it is executed by fraud, undue influence, coercion etc. and that it is not supported by consideration. 2. The defendant in the said suit has filed a civil suit for realisation of the amount which is covered by that cheque. Both the cases were tried jointly and the learned Subordinate Judge dismissed the suit which contained the A.S. Nos.385 & 452 OF 2001 -2- prayer for cancellation of the cheque and granted a decree in favour of the plaintiff in O.S.20/93 who had filed a suit for realisation of the amount. 3. The brief facts of the case are necessary for proper appreciation of the matter. The plaintiff and defendant are relatives. It is the case of the plaintiff in O.S.20/93 that the defendant was in need of money and he had advanced a sum of Rs.49,000/- in the year 1988 and also handed over him 48 gms. of gold for the purpose of pledging to raise some more amount. Thereafter the plaintiff in the other suit had not paid the amount and so ultimately as there was a threat by the other person against the plaintiff in O.S.20/93, he moved a petition before the Circle Inspector of Police, Mavelikkara and in the presence of Circle Inspector of Police, Mavelikkara towards the discharge of the liability the defendant in O.S.20/93 had issued a cheque for Rs.40,250/- which when presented for encashment returned with the endorsement of insufficiency of funds and therefore the A.S. Nos.385 & 452 OF 2001 -3- suit is filed for realisation of the amount. 4. The defence in the case is that the defendant in O.S.20/93 had not borrowed the amount as alleged and had not issued any cheque by his free mind and will. According to him on a petition filed by the plaintiff in O.S.20/93 the Circle Inspector of Police, Mavelikkara summoned him to the Police Station and on account of his coercion and fraud he executed a cheque which is the subject matter, that too without any consideration and therefore the cheque cannot be enforced for realisation of the amount. It is also contended that if the cheque is invalid in law then the suit is filed beyond time in 1993 and therefore it is barred by limitation. 5. Heard the learned counsel for the appellant as well as the respondent. Learned counsel for the appellant very persuasively submits before me that all is not well with the case and the manner in which things are done only highlights the truthfulness of the case filed as O.S.265/91. He had also drawn my attention to the A.S. Nos.385 & 452 OF 2001 -4- judgment of the Judicial First Class Magistrate, Chengannur whereby an action initiated u/s 138 of the Negotiable Instruments Act has ended in acquittal. The learned counsel had also relied upon the decision of the Apex Court especially that of the Constitution Bench decision reported in Iqbal Singh Marwah v. Meenakshi Marwah (AIR 2005 SC 2119). It was a case of prosecution relating to documents given in evidence. Therefore the Apex Court referred to the earlier classical decision of the Hon'ble Supreme Court in AIR 1954 SC 496 and it was held that criminal proceedings should be given precedence over the civil litigation. It also explain the two different approaches to be made in a criminal as well as civil litigation. The fundamental principle so far as judgment of criminal Courts are concerned is that it will not have any binding effect on the civil Court but just like any other document it can have a persuasive effect. It has also to be stated that when a suit is filed alleging coercion, fraud etc. it is a A.S. Nos.385 & 452 OF 2001 -5- settled principle that in civil law these cannot be decided on conjectures and surmises. The suspicious circumstances brought and advanced in this case are as follows. 6. Admittedly the plaintiff in O.S.20/93 files a complaint against the plaintiff in O.S.265/91. The Circle Inspector of Police sends a notice directing him to appear before him. According to the plaintiff in O.S.265/91 he had stated before the Circle Inspector of Police that he does not owe any money to the complainant and on account of the pressure exerted by him he had opened an account and issued the cheque which is not supported by consideration. Now-a-days it is in the increase that parties are approaching police stations for resolution of the civil disputes. When a complaint is received, if it is of a civil nature, nothing can be done by the police. Any sort of undue influence caused or coercion will really affect the interest of a party. But there are cases where when a complaint is filed and the parties are summoned A.S. Nos.385 & 452 OF 2001 -6- before the police due to the intervention of the police and well wishers they settle the matter from the police station itself and thereby putting an end to their difference of opinion. Now it has to be remembered that the plaintiff in O.S.265/91 was originally asked to appear on a particular date. Then the grievance of him that the Circle Inspector of Police made him wait till 8 p.m. and forced him to give the amount to the other plaintiff. It has come out in his evidence on 3 or 4 occasions he had gone like that and waited till 8 p.m. Under such circumstances ordinarily a person will not go to the police station at all because there was no warrant or any coercive process pending against him. Now the learned counsel would submit before me that one of the police constables attached to the police station had accompanied the said person that too by receiving Rs.250 from the plaintiff in O.S.20/93 to open an account and thereafter a cheque is issued for Rs.40250/-. If there is no amount due from the plaintiff in O.S.265/91 then there was absolutely no A.S. Nos.385 & 452 OF 2001 -7- necessity for him to budge to any pressure, I say so because of his subsequent conduct. Immediately after issuing the cheque he goes to the lawyer and sends notice stating that the cheque is vitiated. When this is the approach of the person I am certain that he would not have gone to the police station 4 or 5 times. He would have been convinced about the negotiation in the police station and thereafter should have opened an account. When a person is involved in a situation where he wants a temporary relief it is nothing but human tendency to do some thing to get away for the time being. Therefore when the amount was asked and as he had no amount with him it is quite possible that he had opened an account and had issued a cheque with a post date. All these cannot be said to be on account of the coercion exerted by the Circle Inspector of Police. In this case the Circle Inspector of Police had been examined as DW2 and he had given evidence that he has not exerted any pressure and it was at the instance of the plaintiff in A.S. Nos.385 & 452 OF 2001 -8- O.S.265/91 the cheque had been given. Now the defendant has chosen to examine DWs.2 to 5 as well. DW3 is one Sajeev. He knows both the plaintiff and the defendant. He had deposed before Court that he had accompanied Rajeev to the house of Sahadevan and had spoken about the transaction. He had also stated that he was also given Rs.500 by the plaintiff in O.S.265/91. He had categorically asserted that he does not have any intimacy with Sahedevan also. 7. DW4 is one retired teacher by name Gopinatha Pillai. He was examined to prove that the plaintiff in O.S.265/91 had entrusted with him four sovereigns of gold to be pledged and subsequently another two sovereigns were pledged and he had pledged and handed over the amount to the plaintiff in O.S.265/91. When he received a notice from the bank he contacted him and then with him went to the house of Sahadevan and Sahedevan in the presence of these persons had given Rs.7,800/- and as requested by him ornaments were A.S. Nos.385 & 452 OF 2001 -9- taken and entrusted to one Sreedharan Pillai who had handed over the same to the Sahaedevan. 8. DW5 is one Sudhakaran. He is the brother in law of the plaintiff in both the cases. He speaks about the transaction. He had spoken to the plaintiff in O.S.265/91 regarding the return of the amount. He had spoken that Rs.10,000/- was given and for the balance amount the cheque had been issued etc. 9. Now the other evidence is that of PW1 and DW1. It has to be viewed with great caution because they are very much interested in their respective cases. 10. The evidence brought out in this case does not establish any sort of coercion or undue influence as alleged by the plaintiff in O.S.265/91. Just because he had gone to the police station and had opened an account in a Bank and had issued a cheque by itself will not constitute or prove these ingredients. He was not a layman as he wants to project and that is why he had chosen to issue notice after the issuance of the cheque. A.S. Nos.385 & 452 OF 2001 -10- Mere suspicion cannot be a substitute for proof and the circumstances brought out does not make the Court to come to an inference regarding the undue influence or coercion this case. Therefore I agree with the finding of the learned Subordinate Judge regarding the finding in O.S.265/91. When it is so, it goes to the root of the matter and it proves the transaction as well and therefore naturally the plaintiff in O.S.20/93 is entitled to a decree as prayed for. That also does not call for any interference. 11. Now so far as the interest is concerned it can been seen that it is not a commercial transaction and really there was no agreement between the parties with respect to the payment of interest. Parties are close relatives and one has attempted to help the other. So taking into consideration those aspects I am inclined to reduce the interest at the rate of 6% from the date of suit till realisation or in other words a modified decree is passed as follows. A.S. Nos.385 & 452 OF 2001 -11- 12. The plaintiff in O.S.20/93 is given a decree for realisation of an amount of Rs.46,287/- with 6% interest on the sum of Rs.40,250/- from the date of suit till realisation from the defendant and his assets including the property attached and the plaintiff is entitled to the costs. 13. The judgment and decree in O.S.265/91 is confirmed. Thus A.S.385/01 is dismissed and A.S. 452/01 is partly allowed with modification of interest as mentioned earlier. Considering the relationship of the parties I direct both parties to bear their respective costs in the appeal. M.N. KRISHNAN, JUDGE. ul/- A.S. Nos.385 & 452 OF 2001 -12- M.N. KRISHNAN, J. = = = = = = = = = = A.S. Nos.385 & 452 OF 2001 = = = = = = = = = = = J U D G M E N T 9th June, 2010.