IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 RSA.No. 1242 of 2009() ---------------------- AS.77/2002 of SUB COURT, KASARAGOD OS.84/2001 of ADDL.MUNSIFF, KASARAGOD .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------ P. GOPALAKRISHNA BHAT, AGED 64 YEARS S/O. MAHALINGA BHAT, HINDU, CHARTERED ACCOUNTANT, OFFICE AT DOOR NO.KMC XXIV-90, SRIRAMPET, KASARAGOD, RESIDING AT PADIADPU OF BELA VILLAGE OF KASARAGOD TALUK, P O BELA BY ADV. SRI.M.RAMESH CHANDER RESPONDENT/RESPONDENT/DEFENDANT: ---------------------------- SUKUMARA U, AGED ABOUT 32 YEARS S/o. RAGHAVA, HINDU, ARRACK CONTRACTOR RESIDING AT RAGHAVA NIVAS, UPPALA UPPALA VILLAGE, KASARAGOD TALUK P O UPPALA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1242 of 2009F --------------------------------------- Dated this 15th day of February, 2010 JUDGMENT The second appeal arises from judgment and decree of learned Sub Judge, Kasaragod in A.S.No.77 of 2002 confirming judgment and decree of learned Munsiff, Kasaragod non suiting appellant/plaintiff in O.S.No.84 of 2001. That was a suit filed by the appellant claiming recovery of Rs.35,000/- from the respondent alleging that respondent owed Rs.35,000/- to him and issued Ext.A1, cheque dated 25-04-1999 for payment of the said amount which on presentation was dishonoured for insufficiency of funds. Notice intimating dishonour and demanding payment of the amount was returned unclaimed. Respondent contended that there was no such transaction as pleaded by the appellant, nor had he issued any cheque for discharge of debt of Rs.35,000/-. He claimed that he had no intimation from the post office regarding the registered notice. His further case is that appellant is a Chartered Accountant by profession and that himself was engaged in arrack business. He had entrusted with the appellant auditing of his accounts. Appellant was engaged to file two appeals against the order of Income Tax authorities. Appellant demanded Rs.35,000/- by way of fee. It was agreed between them that in case appeals were allowed, appellant would be paid Rs.15,000/- by way of R.S.A.No.1242 of 2009 2 fee. As security appellant obtained signed blank cheques from the respondent. Of the two appeals preferred one was allowed and the other was dismissed. Respondent paid Rs.17500/- to the appellant as per agreement and another Rs.5000/- for the lost appeal. Appellant gave evidence as PW1 and testified to his case. He denied that he had filed any appeal or revision on behalf of respondent and took the cheque as security. Respondent gave evidence as DW1 and proved Exts.B1 and B2, profit and loss account for the year ending on 31-03- 1995 and proceeding of the Income Tax Office on 09-12-1998. Ext.X1 is the file summoned from the office of Commissioner of Income Tax. Trial court found from Ext.X1 that appellant had filed a revision petition before Commissioner of Income Tax on behalf of respondent. Trial court observed that appellant had no case in what way amount was due to him from the respondent, not to say that it was by way of professional fees. Trial court found in the circumstances and in the light of the evidence that appellant is not entitled to the protection of section 118(a) of the Negotiable Instruments Act (for short, “the Act”) since respondent has adduced satisfactory evidence to rebut the presumption. Trial court believed the version of respondent as DW1 corroborated Exts.B1 and B2 and dismissed the suit. First appellate court has confirmed judgment and decree of trial court. Hence this second appeal urging by way of substantial question of law whether R.S.A.No.1242 of 2009 3 courts below were right in finding that the presumption under section 118(a) of the Act was rebutted by the respondent. 2. True, once execution of the cheque is admitted or proved presumption under section 118(a) of the Act would arise and then it is for the drawer to rebut the presumption. It is also the law that even if the case of appellant as to consideration is at variance, still the presumption under section 118(a) of the Act would arise. But if the respondent has rebutted the presumption, then, the onus would again shifted to the appellant to prove that consideration has passed. I have gone through the copy of plaint which learned counsel for appellant has given to me for perusal. It does not say in what way amount is allegedly due to the appellant. True being a suit on negotiable instrument it may not be necessary for appellant to say in what way the amount is due to him since he can initially bank upon the presumption under section 118(a) of the Act on proof of due execution of the cheque. But, in the written statement respondent denied execution of the cheque and that any such amount as stated in the cheque was due to the appellant. Still, appellant when examined as PW1 has no case that it is by way of professional fee that Rs.35,000/- was due to him. On the other hand, he was denying that he had filed appeals or revisions on behalf of respondent. It has come in evidence and it is also not disputed before me that appellant had preferred at R.S.A.No.1242 of 2009 4 least one revision/petition on behalf of respondent. That, coupled with Exts.B1 and B2 corroborated the evidence of respondent as DW1 as found by the courts below the circumstances in which cheque was given to the appellant. That rebutted the presumption under section 118(a) of the Act. Then the onus of proving passing of consideration shifted to the appellant which he has not discharged. It is in the above circumstances that courts below found in favour of respondent. 3. It is contended by learned counsel for appellant that at any rate, there is no evidence to show that respondent had paid Rs.17500/- as claimed by him. But, this is not a suit for recovery of the said sum of Rs.17500/- nor can I grant a decree in favour of appellant on the facts pleaded by the appellant since that is not admitted by the appellant and, even in the box he has no case that he filed appeal/revision on behalf of respondent and in that way any amount was due to him. Moreover, it is the case of respondent that he had paid the fee of Rs.17500/- for the appeal/revision which succeeded and Rs.5000/- for the appeal/revision which failed. This is not a case of respondent admitting that any amount is due to the appellant. Hence question of granting decree on the facts pleaded by the respondent did not arise. I have gone through the judgment under challenge and heard counsel for appellant and I am satisfied that no substantial question of law is involved in the appeal. The finding of the courts R.S.A.No.1242 of 2009 5 below is based on evidence on record and contention raised by either parties. That does not involve any substantial question of law requiring decision. Accordingly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/