IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 RSA.No. 1289 of 2008() ---------------------- AS.12/2002 of SUB COURT, THIRUVALLA OS.745/1997 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT/ ----------------------------- P.T. VISWANATHAN KOCHUPULIMOOTTIL VEETTIL, NEERETTUPURAM MURI, THALAVADY VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): --------------- M.J.MATHEW, AGED 67 YEARS MANAK SHERLY SADANAM, NEDUMPURAM MURI, NEDUMPURAM VILLAGE, THIRUVALLA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.1289 OF 2008 --------------------------- DATED THIS THE 11TH DAY OF JUNE, 2009 JUDGMENT Defendant is the appellant herein. This second appeal is directed against the judgment and decree in A.S.No.12/2002 on the file of the Sub Court, Thiruvalla, which arises from the judgment and decree in O.S.No.745/97 on the file of the Munsiff's Court, Thiruvalla. The suit was for realisation of Rs.48,575/- from the defendant and his assets, which was dismissed by the trial court. The appellate Court set aside the judgment and decree passed by the trial court and passed a money decree in favour of the plaintiff. Hence, this second appeal. 2. It is the case of the plaintiff that the defendant had issued a post dated (10/11/1994) cheque for Rs.36,250/- for the amount owed to the plaintiff at the house of the plaintiff. The -2- R.S.A.No.12289/2008 cheque on presentation was bounced for the reason of stop payment by the drawer. The defendant, despite notice, has not cared to settle the dues and therefore the suit was filed for realisation of the amount due. Admittedly, the plaintiff prosecuted the defendant by filing C.C.No.271/1995 before the Judicial First Class Magistrate's Court, Thiruvalla under Section 138 of the Negotiable Instruments Act. The defendant admitted the signature in Ext.A1 cheque. At the same time, he emphatically denied the transaction and contended that he never issued a cheque in favour of the plaintiff and that Ext.A1 cheque is seen with material alteration and is a forged document. It is also pleaded that he was keeping the cheque after putting his signature. Subsequently, the cheque was stolen from his house and therefore he had issued stop payment memo to the Bank. 3. The plaintiff was examined as PW-1 and Ext.A1 and A2 were marked on his side and the defendant and another -3- R.S.A.No.12289/2008 witness were examined as DWs.1 and 2 and Exts.B1 to B8 were marked on their side. 4. The signature of Ext.A1 is admitted. The plaintiff as PW-1 explained the circumstances under which Ext.A1 was issued by the defendant for valid consideration. The learned Munsiff stated that the correct amount alleged to have been borrowed is not the amount mentioned in Ext.A1 cheque. The amount borrowed is Rs.36,000/-; but the amount shown in the Cheque is Rs.36,250/-. There is an excess amount of Rs.250/- , that there was a land deal between the appellant and respondent in July, 1994 and that the cheque was issued only after two months of the execution of the sale deed, Ext.B1 and therefore, there can be no possibility of borrowing the same amount. For these reasons the suit was dismissed by the trial court. 5. The Lower Appellate Court appreciated the contentions of the respective parties. The Lower Appellate Court, after discussing the entire evidence on record, rightly held that since -4- R.S.A.No.12289/2008 the signature of Ext.A1 is admitted and in the light of the contention raised by the appellant/defendant that Ext.A1 cheque was stolen away by the plaintiff, what is to be examined is as to whether the allegation of theft of the cheque leaf by the plaintiff is true and is there any concrete evidence in support of such a contention? The Lower Appellate Court examined Exts.B4 and B5. Ext.B4 is the stop memo and Ext.B5 is the receipt. The Lower Appellate Court also found fault with the defendant for not producing the complaint lodged before the Police. It observed that nothing precludes the respondents from producing the copy of such complaint and if his case is true, he has to prove that what was the follow up action adopted by him on the basis of the complaint. Instead the defendant as DW-1 had never enquired about the fate of his complaint. The Appellate Court further considered the definite case set up by the plaintiff, who had tendered evidence stating that Ext.A1 cheque was issued at his own house on 14/9/1994 with a post date on 10/11/1994. On -5- R.S.A.No.12289/2008 19/9/1994 itself the defendant issued Ext.B4 memo. The Appellate Court examined Ext.A1 cheque and found that the defendant has signed on both sides of the cheque. He also testified that instead of Rs.36,000/-, Rs.36,250/- was stated in Ext.A1 cheque and Rs.250/- is the interested calculated for 1 ½ months. The Appellate Court examined Ext.B1 document and found that the entire sale consideration was paid as per Ext.B1. Therefore, on a consideration of the entire facts and the evidence on record, the Appellate Court concluded that the defendant was fully aware of the fact that Ext.A1 cheque was within the possession of the plaintiff. The Appellate Court further observed that the burden is upon the defendant to prove the fact alleged by him. The defendant was not in a position to adduce any evidence in support of his contention. Apart from a mere raising of a contention that the cheque was stolen away by the plaintiff, the defendant failed to rebut the presumption in favour of the plaintiff and that the only inference could be drawn is with the -6- R.S.A.No.12289/2008 deliberate intention to circumvent the situation of making payment, the defendant has issued Ext.B4 letter to the Bank Manager. Such a conclusion was arrived at by the Appellate Court, in the absence of any supporting or corroboratory evidence regarding the loss of Ext.A1 cheque. The Appellate Court rightly held that the contention regarding the allegation of loss of cheque is absolutely false one and in the circumstances the trial court passed a decree holding that Ext.A1 cheque is legally unsustainable. 6. Apart from the contentions raised by the appellant/defendant, which was considered in detail by the Lower Appellate Court, no sustainable contentions are raised in this appeal. The Appellate Court considered every questions in detail and rendered a detailed judgment stating the facts and circumstances of the case. The findings arrived at are solely based on the facts, evidence and circumstances. I do not find any ground to interfere with the Second Appeal. No question of law -7- R.S.A.No.12289/2008 muchless any substantial questions of law arise for consideration. The Second Appeal fails and accordingly it is dismissed. HARUN-UL-RASHID, Judge. kcv.