IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 RSA.No. 437 of 2008() --------------------- AS.265/2004 of II ADDL. DISTRICT COURT, PALAKKAD CS.232/2003 of MUNSIFF COURT, ALATHUR .................... APPELLANT/RESPONDENT/DEFENDANT -------------------------------------------------- JAYAKRISHNAN, S/O.MADHAVAN EZHUTHASSAN, PALLIKKAD, CHITTILANCHERRY AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S): APPELLANT/PLAINTIFF ---------------------------------- V.J.JOSEPH, S/O.JOSE, VADAKKEVEETTIL, VALIYA KOZHIPADAM, CHITTILANCHERRY AMSOM, CHITTILANCHERRY POST, ALATHUR TALUK, PALAKKAD DISTRICT. ADV. SRI.JOHNSON P.JOHN FOR R1 SRI.BABY MATHEW FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.437 of 2008 = = = = = = = = = = = = = = Dated this the 6 th day of November, 2008 JUDGMENT The sole defendant in O.S.No.232 of 2003 on the file of the Munsiff's Court, Alathur is the appellant in this second appeal. The said suit was one for realisation of money alleging that the defendant/appellant had availed of a loan amount of Rs.25,000/-. According to the plaintiff, the defendant borrowed the said amount of Rs.25,000/- from the plaintiff undertaking to repay the same with interest at the rate of Rs.25,000/- per annum on 20.8.01. He also executed Ext.A1 promissory note for the said amount. Thereafter, the defendant did not repay the amount even after repeated demands. Ext.A2 lawyer notice sent by the plaintiff was returned unserved. The suit was thereafter filed for realisation of the said amount. 2. The suit was resisted by the appellant/defendant contending, inter alia, as follows:- This defendant never borrowed Rs.25,000/- or any amount on 28.12.2001 from the plaintiff as alleged. This defendant did R.S.A.No.437 of 2008 2 not execute any promissory note as alleged. This defendant did not receive any lawyer's notice from the plaintiff. The plaintiff is a money lender and he used to lend moneys and recover the amounts by daily instalments. In addition to this, the plaintiff is conducting a Kuri. This defendant had worked under the plaintiff as a daily collection agent for collecting instalments from the loanees. As a security for the loan amount given to the persons recommended by this defendant, the plaintiff had obtained the signature of the defendant on blank white papers on which revenue stamps were affixed. Since one or two persons whom this defendant recommended for loan had defaulted payments, the blank white papers were converted into a promissory note and the present case is foisted against this defendant. The suit is to be dismissed. 3. On the side of the plaintiff, two witnesses were examined as PWs.1 and 2 of whom PW1 is the plaintiff and Exts.A1 to A3 were marked. The defendant was examined as DW1. He did not adduce any documentary evidence. 4. The learned Munsiff, after trial, as per judgment dated 16.9.04 decreed the suit as prayed for after rejecting the contention of the appellant. On appeal preferred by him as R.S.A.No.437 of 2008 3 A.S.No.265/2004 before the District Court, Palakkad, the II Additional District Judge as per judgment dated 30.11.07 dismissed the appeal confirming the judgment and decree passed by the trial court. Hence this second appeal. 5. The learned counsel for the appellant made the following submissions before me in support of the appeal:- When the case of PWs.1 and 2 is that the defendant was seen putting his signature in Ext.A1 promissory note while borrowing the amount stated in the plaint, Ext.A1 Promissiory note not only contains a signature but also a thump impression for which there is no explanation offered by the plaintiff. Hence the courts below were not justified in drawing the presumption under Section 118 of the Negotiable Instruments Act, 1881 The defendant when examined as DW1 specifically denied his signature and thumb impression in Ext.A1 promissory note. So the plaintiff had to be put to strict proof regarding the plaint averments. It was overlooking this aspect of the matter that the suit has been decreed. 6. I am afraid that I cannot agree with the above submissions. The specific defence set up in the written statement is that the blank papers on which the signature of the R.S.A.No.437 of 2008 4 defendant was taken on revenue stamp affixed thereon were converted into Ext.A1 promissory Note. The said contention involved an admission of his signature on the promissory note. But when the appellant mounted the witness box and gave evidence as DW1 he came out with a new case of denial even of his signature in Ext.A1. Courts below were not inclined to accept the testimony of DW1. Both the courts below have come to the conclusion that signature appearing on Ext.A1 is similar to the admitted signatures of the defendant in the written statement, vakalath, affidavit etc. The courts below had this power to compare the signatures by virtue of Section 73 of the Evidence Act. The findings of the courts below are pure findings of fact. No questions of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 6th day of November, 2008. V. RAMKUMAR, JUDGE sj