IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 SA.No. 599 of 2001() -------------------- AS.55/1998 of III ADDL.SUB COURT, KOZHIKODE OS.566/1996 of ADDL.M.C.,KOZHIKODE-I .................... APPELLANT(S): -------------- M. ABDUL MAJEED, S/O. HYDROSE, BIMBINO FASHION WEAR, COURT ROAD, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK RESIDING AT KHASTHI MANZIL, KUNIYIL KAVU ROAD, CALICUT - 6 BY ADV. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SRI.ANISH S.AMBADY SMT.BIJIMOL JOSE RESPONDENT(S): --------------- P.G. HARIHARAN, S/O. GANAPATHY IYER,' LAKSHMI SADAN, 19/1837 BAJANA KOVIL ROAD, CHALAPPURAM, KASABA AMSOM DESOM, CALICUT - 2 KOZHIKODE TALUK AND DISTRICT THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/02/2009, ALONG WITH SA NO. 613 OF 2001 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * S.A. No. 599 of 2001 and S.A. No. 613 of 2001 * * * * * * * * * * * * * * * * * * Dated: 3rd February, 2009 JUDGMENT The common appellant (Abdul Majeed) in these Second appeals was the plaintiff in O.S. No. 566 of 1996 on the file of the Munsiff's Court, Kozhikode – I and the defendant in O.S. No. 34 of 1997 before the same Court. SA. 599 of 2001 arises out of O.S. No. 556 of 1996 and S.A. No. 613 of 2001 arises out of O.S. No. 34 of 1997 and O.S. 556 of 1996 was treated as the leading case. The said suit instituted by the appellant herein was one for damages for malicious prosecution. 2. The case of the appellant /plaintiff in O.S. 566 of 1996 is as follows:- There was a transaction between one Rasak and the defendant Hariharan for the purchase of a piece of land belonging to Hariharan. A negotiation was held in connection with the said transaction in which the appellant had acted as a mediator. In the first week of December 1992 the plaintiff after participating in the S.A. No. 599 of 2001 and S.A. No. 613 of 2001 -:2:- negotiation and mediation left the place. He had forgotten his bag containing cheque book, income tax returns, railway tickets etc. Subsequently, the defendant Hariharan instituted a criminal case against the plaintiff as S.T. 355 of 1994 before the Chief Judicial Magistrate's Court, Kozhikode for prosecuting him under Sec. 138 of the Negotiable Instruments Act, 1881, by misusing one of the cheque leaves for a sum of Rs. 50,000/-. The plaintiff defended the said criminal case and was finally acquitted by the Chief Judicial Magistrate's Court on 29-8-1995. The plaintiff was thus prosecuted maliciously by the defendant Hariharan without any reasonable or probable cause. The plaintiff is thus entitled to Rs. 1,00,000/- as damages. 3. The defence of Hariharan who was the defendant in O.S. No. 566 of 1996 and who was also the plaintiff in O.S. 34 of 1997 was as follows:- The acquittal of the plaintiff Abdul Majeed by the Chief Judicial Magistrate's Court was due to the technical reason that on the alleged date of issue of Ext. B1 cheque the account of the plaintiff with the drawee bank had already been closed and there was no live account so as to attract Sec. 138 of the N.I.Act. It was thus an acquittal on a technical ground and not an acquittal on S.A. No. 599 of 2001 and S.A. No. 613 of 2001 -:3:- meris. The plaintiff had borrowed a sum of Rs. 50,000/- from the defendant Hariharan on 16-2-1993 agreeing to re-pay the said amount on or before 30-3-1993. Even after repeated demands, the plaintiff did not repay the amount and on 4-4-1994 he issued Ext.B1 cheque for the amount borrowed. The cheque when presented was dishonoured by the drawee bank for the reason that the account was closed on 2-12-1993. The plaintiff's case that the account was closed on 21-12-1992 is false. O.S. No. 566 of 1996 is liable to be dismissed and O.S. No. 34 of 1997 is liable to be decreed. 4. The learned Munsiff tried both the suits together. It was contended by the appellant that the signature in Ext.B1 cheque was dissimilar from the admitted signature of the appellant in Ext.A3. The learned Munsiff, after joint trial as per common judgment dated 30-09-1997 dismissed O.S. No. 566 of 1996 but decreed O.S. 34 of 1997. On appeal preferred by the appellant herein as A.S. Nos. 7 and 55 of 1998 the learned Subordinate Judge , Kozhikode as per common judgment dated 15-3-2000 dismissed the appeals confirming the judgments and decrees passed by the trial court. Hence these Second Appeals. 5. The following are the questions of law formulated in the S.A. No. 599 of 2001 and S.A. No. 613 of 2001 -:4:- memoranda of Second Appeals:- A) The appellant having denied the entire loan transaction and having denied the issue of Ext.B1 cheque, was the court below justified in holding against the appellant on the ground that there is no specific denial of the signature in Ext.B1 ? B) Is the respondent entitled to a decree for realisation of money on the basis of Ext.B1 cheque since it is not proved by any acceptable and independent evidence that Ext.B1 cheque was signed and issued by the appellant ? C) Is not the burden of proving the signature of Ext.B1 on the respondent, in the light of the contentions raised by the parties to the case ? D) The respondent having not taken any step to get the disputed signature in Ext.B1 compared with the admitted signatures of the appellant with the help of an expert, were the courts below justified in granting a decree in favour of the respondent ? E) Is not the judgment and decree of the court below vitiated due to non-consideration of the questions involved in the suit for damages for malicious S.A. No. 599 of 2001 and S.A. No. 613 of 2001 -:5:- prosecution filed by the appellant ? F) Is not the judgment of the court below vitiated since the proper points to be considered were not raised for consideration ? 6. The learned counsel appearing for the common appellant made the following submissions before me in support of the appeals:- Even the lower appellate court has noticed that there is dissimilarity in the signature in Ext.B1 cheque with the admitted signatures of the defendant. It is true that the cheque book containing Ext.B1 cheque leaf was issued on 16-5-1992 by the drawee bank and Ext.B1 first cheque bearing Sl. No. 332221 and two other subsequent cheques bearing subsequent dates had been issued by the plaintiff. But that does not falsify the plaintiffs case that the cheque book containing Ext.B1 and other cheque leaves were lost in the first week of December 1992. In the absence of any evidence to show that the two cheque leaves bearing subsequent dates were issued after the first week of December 1992, it was not possible for presuming that the plaintiff's case that he lost the cheque leaves in the first week of S.A. No. 599 of 2001 and S.A. No. 613 of 2001 -:6:- 1992 was false. Similarly, the omission to mention the loss of the cheque book when the appellant closed the account on 2-12-1993 does not also necessarily render his case false. 7. I am afraid that I cannot agree with the above submissions. In the absence of any positive evidence adduced by the appellant to show that the two cheques bearing subsequent dates occurring in the very same cheque book were issued during the period between 16-5-1992 and first week of December 1992, it is not open to the appellant to contend that those two cheque leaves could have been issued between 16-5-1992 and first week of December 1992. The courts below have also found that the case of the plaintiff that he closed the account on 21-12-1992 was false and that the account was actually closed on 2-12-1993 pursuant to Ext.X2 application dated 2-11-1993. The omission on the part of the appellant to mention to the drawee bank the factum of the plaintiff losing the cheque book in the first week of December 1992 also speaks volumes regarding the credibility of the appellant's case. The trial court which had the unique advantage of seeing the witnesses and assessing their credibility was not inclined to accept the appellant's case. The lower appellate court has also agreed with the conclusions reached by the trial court. The findings S.A. No. 599 of 2001 and S.A. No. 613 of 2001 -:7:- recorded by the courts below are pure findings of fact from which no question of law much less any substantial question of law arises for consideration. Since the appellant was acquitted by the criminal court on a technical ground and it was not an acquittal on merits after trial, it cannot be contended by him that he was prosecuted without any reasonable or probable cause so as to maintain the present action for malicious prosecution. Since the courts below have accepted the respondent's case that Ext.B1 cheque was issued in discharge of a legally enforceable debt of Rs. 50,000/- borrowed by the appellant from the defendant on 16-2- 1993, O.S. 34 of 1997 was rightly decreed by the courts below. The questions of law formulated in the memoranda of appeals also do not arise for consideration in these appeals which are accordingly dismissed in limine. Dated this the 3rd day of February, 2009 V. RAMKUMAR, (JUDGE) ani. S.A. No. 599 of 2001 and S.A. No. 613 of 2001 -:8:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * S.A. No. 599 of 2001 and S.A. No. 613 of 2001 * * * * * * * * * * * * * * * * * * Dated: 3rd February, 2009 JUDGMENT