IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 RSA.No. 493 of 2009() --------------------- AS.149/2007 of SUB COURT, PERUMBAVOOR OS.625/1997 of MUNSIFF COURT, PERUMBAVOOR .................... (S): APPELLANT/APPPELLANT/DEFENDANT -------------------------------------------------- SEES JOHN AGED 49 YEARS, S/O. JOHN, RATHAPPILLY HOUSE, KALLOORKADU POST, THODUPUZHA TALUK. BY ADV. SMT.S.K.DEVI SRI.SANTHOSH P.ABRAHAM SRI.K.P.PRADEEP (PAYYANNUR) RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------------------- P.M.BENNY, AGED 39 YEARS, S/O. P.V.MATHAI, PARAMBIL HOUSE, KAVUMPURAM BHAGAM, AIMURY P.O. CHERANALLOOR VILLAGE, KUNNATHUNADU TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------ R.S.A.No.493 of 2009 ------------------------------------- Dated this the 6th day of July, 2009 JUDGMENT The defendant in O.S.No.625 of 1997 on the file of the Munsiff court, Perumbavoor is the appellant. The appeal is directed against the decree and judgment in A.S.No.149 of 2007 on the file of the Sub Court, Perumbavoor. This suit is for realization of Rs.55,000/- with interest. The suit was decreed by the trial court and confirmed in appeal. Hence this second appeal. 2. It is the plaintiffs’ case that the defendant borrowed a sum of Rs.55,000/- with an undertaking to repay the same within two months. Since the amount was not paid, the suit was filed. In the detailed written statement filed by the defendant he denied the transaction. It is contended that he never borrowed any money from the plaintiff or issued a cheque as alleged in the plaint. The cheque in question was signed and entrusted with the Accountant of the defendant, Jayakumar for the purpose of business. The salesman of the business concern namely Baby prevailed upon Jayakumar and somehow obtained R.S.A.No.493 of 2009 2 the cheque from him. It is further averred that Shri.Baby and plaintiff colluded together and fabricated the document and presented the cheque for collection. Since no transaction took place between the parties, the defendant has no liability to pay the amount to the plaintiff and therefore the suit is liable to be dismissed. The suit was contested very seriously by the appellant. PWs.1 to 3 and Ext.A1 to A3 were marked on the side of the plaintiff and DWs.1 to 3 were examined on the side of the defendant. The trial court considered the credibility of the oral evidence of PWs.1 to 3 and DWs.1 to 3. PW.2 was examined to prove the transaction. He categorically stated that he had presented the cheque. The witnesses examined on the side of the defendant namely DW.2 and 3 did not inspire the confidence of the court. The case set up by the defendant was examined by the trial court and found that the defendant failed to prove the case set up by him. The court also held that the non- examination of Jayakumar and Baby throw doubt on the case set up by the defendant. 3. The court relied on Exts.A1 to A3 and held that the plaintiff has proved and established that he had paid Rs.50,000/- R.S.A.No.493 of 2009 3 at his shop room at Perumbavoor. The court held that the plaintiff substantiated his case, that the defendant issued Ext.A1 cheque to the plaintiff and found that the defendant failed to rebut the presumption by adducing evidence. The court concluded that the plaintiff is entitled to the amount claimed. 4. The contentions raised by the defendant are re- agitated before the appellate court. The appellate court appreciated the evidence on record and held that the evidence of plaintiff categorically established that the defendant borrowed money from the plaintiff and that there is no reason to disbelieve the oral evidence of PWs.1 to 3. The findings recorded by the trial court was confirmed in appeal by the appellate court based on facts. I am of the view that the appellant has not made out any sustainable grounds to invoke the jurisdiction under Section 100 of the C.P.C. No question of law much less any substantial questions of law arises for consideration in this second appeal. In the result the appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID, JUDGE skj.