IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 AS.No. 775 of 1996() -------------------- OS.318/1994 of ADL.SUB COURT, THALASSERY .................... APPELLANT/DEFENDANT:- ---------------------------- T.V. ABDURAHIMAN, S/O. ABDULLA, TEACHER, KUNHAMPARAMBA U.P. SCHOOL, THIRUVANGAD AMSOM, DESOM, THALASSERY TALUK. BY ADV. MR. P.V.SURENDRANATH MR. C.KHALID MR. N.GOPINATHA PANICKER MR. R.O.MUHAMED SHEMEEM MR. T.P.SAJID MR. P.V.SURENDRANATH RESPONDENT/PLAINTIFF:- ----------------------------- O. ZUBAIR, S/O. ABDULLA, ABDULLA MANZIL, JUBILEE ROAD, THALASSERY, THIRUVANGAD AMSOM DESOM, THALASERY TALUK. ADV. MR. V.RAJAGOPAL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO. 775/1996 : 2 : ORDER ON C.M.P. NO. 4659/1996 IN A.S. NO. 775/1996 DISMISSED 12.08.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. -------------------------------------------------- A.S. No. 775 of 1996 ---------------------------------------------------- Dated this the 12th day of August, 2009. JUDGMENT The sole defendant in O.S. No. 318 of 1994 on the file of the Sub Court, Thalassery is the appellant in this appeal. The said suit was one for realisation of a sum of Rs.47,000/- together with interest thereon from the defendant alleging a loan transaction. 2. The case of the plaintiff can be summarised as follows:- The defendant is familiar to the plaintiff since the year 1990. One Abdulla Haji and Abdul Samad (PW2) are close friends of the defendant. On 01.07.1991, the defendant accompanied by the said Abdulla Haji and Abdul Samad approached the plaintiff seeking financial help to the tune of Rs.80,000/- which the defendant needed in connection with the marriage of his twin sisters. It was represented by the defendant that his mother was having one acre of landed property and the defendant would discharge the loan by disposing of the said property. The plaintiff agreed to help the defendant and requested him to come over to his house on 06.07.1991. On A.S. No. 775/1996 : 2 : being satisfied about the bona fides of the defendant's requirements and believing the representations made by the defendant, the plaintiff advanced a sum of Rs.40,000/- in cash and handed over gold ornaments weighing 7 sovereigns in lieu of cash for the balance on 06.07.1991. The defendant had promised to discharge the loan within six months by disposing of the landed property of his mother. Since the amount was not paid and the gold ornaments were not returned in spite of repeated requests, the plaintiff approached Abdulla Haji and PW2 for the purpose and they also were helpless in persuading the defendant to repay the loan. Thereupon, the plaintiff filed a petition before the C.I of Police, Thalassery on 21.08.1992. The C.I of Police summoned the defendant and he admitted the transaction and sought for some time for discharging the liability. The defendant paid Rs.10,000/- on one occasion and paid Rs.1000/- and gave one sovereign of gold ornaments to the plaintiff on another occasion from the Thalassery Police Station. Even though the plaintiff was hopeful of getting back the balance amount and the balance gold ornaments, the defendant failed to return the same. Thereafter, the plaintiff issued a lawyer notice A.S. No. 775/1996 : 3 : to the Circle Inspector of Police asking him to keep in safe custody the petition filed by him. The plaintiff did not receive any reply. The defendant has to pay a sum of Rs.29,000/- by way of cash and the value of six sovereigns of gold ornaments totalling to a sum of Rs.47,000/-. The defendant is liable to pay the said amount with interest at the rate of 12% for three years. Since the above transaction was entered into out of acquaintance and friendship between the parties, the plaintiff did not insist on any documentary evidence in support of the transaction. The plaintiff has estimated the value of gold ornaments at Rs.3000/- per sovereign which was the price prevailing at the relevant time. Hence the suit for Rs.47,000/- with interest. 3. The suit was resisted by the appellant contending inter alia as follows:- The plaint allegation that this defendant approached the plaintiff in the company of Abdulla Haji and PW2 and asked for financial assistance to the tune of Rs.80,000/- for conducting the marriage of his twins sisters and represented that he will clear the dues after disposing of one acre of property belonging to his mother, are all false. The further plaint averment that on A.S. No. 775/1996 : 4 : 06.07.1991, the plaintiff paid a sum of Rs.40,000/- in cash and handed over seven sovereigns of gold ornaments worth Rs.40,000/-, are all false. This defendant did not borrow any amount as alleged nor had he promised to repay the alleged loan. The plaintiff had not approached this defendant for return of the money and ornaments allegedly borrowed by this defendant. It is false to say that the plaintiff filed a petition before the C.I of Police, Thalassery and the police had collected a sum of Rs.11,000/- in cash and one sovereign of gold ornaments from this defendant and they were handed over to the plaintiff. Hashim, the brother of this defendant had married Zahira, the daughter of the plaintiff on 25.08.1991. That marriage did not last long. The ill feeling started between the marital partners since a serious defect in Zahira was concealed from this defendant's brother at the time of the marriage. Thereafter, the plaintiff and his people began to ill treat the brother of this defendant. They were harassing this defendant and his brother on that ground. This defendant did not return any amount or ornaments through the alleged mediation at the instance of the Circle Inspector of Police, Thalassery. This defendant had not A.S. No. 775/1996 : 5 : undertaken to repay any amount to the plaintiff. The plaintiff had caused his daughter to file a petition for maintenance against this defendant's brother and the same was allowed by the court. They have also filed a complaint against this defendant and others alleging that some ornaments of the plaintiff's daughter were taken by them. The said complaint taken on file as C.C. No. 689 of 1992 was dismissed by the court. Abdulla Haji and Abdul Samad mentioned in the plaint are not the friends of this defendant. They are actually the friends and co-workers of the plaintiff. They were examined in C.C. No. 689 of 1992 before the Magistrate and their evidence was disbelieved by the court. The plaintiff is not entitled to any of the reliefs prayed for in the suit which may, therefore, be dismissed with costs. 4. The court below framed three issues for trial. On the side of the plaintiff, two witnesses were examined as PWs 1 and 2 of whom PW1 is the plaintiff himself and PW2 is Abdul Samad. Exts.A1 to A3 series were marked. On the side of the defendant, he examined himself as DW1. No documentary evidence was adduced by the defendant. A.S. No. 775/1996 : 6 : 5. The learned Subordinate Judge, after trial, as per judgment and decree dated 12.12.1995 decreed the suit as prayed for. Hence this appeal. 6. I heard the learned counsel appearing on either side. 7. The learned counsel appearing for the appellant/defendant made the following submissions before me in support of the appeal:- The testimony of PWs 1 and 2 would clearly show that the case put forward by the plaintiff is absolutely false and has been invented only for taking revenge against the defendant. The suit was filed on 05.07.1994. There is no whisper in the plaint regarding the marriage between the plaintiff's daughter and the defendant's brother which took place on 25.08.1991 which was within one month of the alleged transaction. As per the plaint averments, neither the defendant nor Abdulla Haji nor PW2 are friends of the plaintiff whereas, they are close friends of the defendant. Still, no document was got prepared to evidence the transaction between the plaintiff and defendant. According to the plaintiff, since he did not have the full amount of Rs.80,000/-, he had given the gold ornaments of his wife and sister to the A.S. No. 775/1996 : 7 : defendant besides handing over Rs.40,000/- in cash. It is such a person who gave his daughter in marriage to the defendant's brother within one month of the transaction. No son-in-law or no brother of a would-be son-in-law would approach the prospective father-in-law for such a huge loan and that too for the marriage expenses of their twin sisters. Even though PW2 Abdul Samad was charecterised as a close friend of the defendant, it has come out in evidence that he was really a close friend and colleague of the plaintiff and had participated in the mediation talk held in connection with the ruptured marriage of the plaintiff's daughter and the defendant's brother. PW2 was admittedly a mediator on the side of the plaintiff and he was rendering a lip service to the plaintiff. Ext.A2 is stated to be a personal account book maintained by the plaintiff. It is nothing but a concocted document. The account mainly contains the transaction in question. It was not produced along with the plaint. It was produced only subsequently. The plaintiff examined as PW1 has admitted that some pages of Ext.A2 are missing. Abdulla Haji, the other person who allegedly accompanied the defendant, has not been examined. No acceptable evidence has been adduced A.S. No. 775/1996 : 8 : by the plaintiff to prove the alleged partial discharge through the Circle Inspector of Police, Thalassery. The complaint said to have been filed by the plaintiff before the police, has not been summoned or marked. The Circle Inspector of Police, Thalassery who allegedly intervened in the matter, was also not summoned or examined. The suit was filed after Zahira, the daughter of the plaintiff admitted before the criminal court that she has Filariasis. The appellant has filed before this Court I.A No. 2289 of 2008 for receiving in evidence the deposition of PWs 1 to 4 in C.C. No. 689 of 1992 and the judgment in that C.C on the file of the Judicial First Class Magistrate-I, Thalassery. The Criminal Court had in the judgment dated 19.03.1995 in C.C. No. 689 of 1992, observed that Abdulla Haji and Abdul Samad who were examined as PWs 3 and 4, were the friends of the present plaintiff examined as PW2 in that case and eschewed their evidence as interested testimony. The criminal court had observed in the judgment that the father of Zahira may take his last weapon to wreck vengeance against the accused. The court below has failed to to notice the aforesaid circumstances. The judgment and decree passed by the court below are not A.S. No. 775/1996 : 9 : sustainable. 8. I am afraid that I cannot agree with the above submissions. It is true that there is no document produced to prove the loan transaction. But, there is the testimony of PWs 1 and 2 to the effect that the defendant accompanied by Abdulla Haji and PW2 approached the plaintiff on 01.07.1991 for financial help to the tune of Rs.80,000/- in connection with the marriage of the twin sisters of the defendant and the plaintiff on being satisfied about the bona fides of the request asked the defendant to come after one week and on 06.07.1991, PW1 paid Rs.40,000/- in cash and gave gold ornaments worth 7 sovereigns to the defendant who had undertaken to repay the loan within six months by disposing of his mother's property. Merely because Abdulla Haji and PW2 figured as witnesses for the prosecution in the complaint filed by the plaintiff's daughter Zahira against the defendant's brother Hashim, it does not follow that they are close friends of the plaintiff and would be interested in giving false evidence against the defendant. The defendant is a teacher by avocation. He has admitted that himself and Abdulla Haji and PW2 are signatories to Ext.A3 A.S. No. 775/1996 : 10 : Minute Book. Hence the chances are that the said two persons are closer to the defendant than the plaintiff. The specific case of the plaintiff is that since Abdulla Haji and PW2 accompanied the defendant when the request for loan was made, it was those persons whom the plaintiff approached first to persuade the defendant to repay the loan and their attempts in that behalf was futile. Hence there was nothing wrong on the part of the plaintiff citing one of them (PW2) as a witness to speak in terms of the loan transaction. 9. It is true that Ext.A2 personal account note book maintained by the plaintiff was not produced along with the plaint and PW1 admitted that he was aware of the same at the time of filing the suit. He has deposed that it was omitted to be mentioned in the plaint by his counsel. If Ext.A2 book was a concocted piece of evidence, then there was no necessity for the plaintiff to keep that book away while filing the suit or to cause the disappearance of a few pages which were found missing in the book. Moreover, it is not correct to say that Ext.A2 book contains only the loan transaction in question. A cursory perusal of Ext.A2 will show that the plaintiff started maintaining this A.S. No. 775/1996 : 11 : book from 29.05.1991 and there are entries up to 22.08.1991. The relevant entry pertaining to the lending of Rs.40,000/- in cash to the defendant on 06.07.1991 is obtained at page 36 of Ext.A2. The criticism that Ext.A2 does not contain the subsequent repayment of Rs.10,000/- and Rs.1000/- respectively, is not at all justified because even according to the plaintiff, he filed the complaint before the C.I of Police, Thalassery only on 28.08.1992 and the part payments were only thereafter. When the entries in Ext.A2 personal account book are only up to 22.08.1991, the partial discharge of the loan on 21.08.1992 and thereafter cannot obviously find a place in Ext.A2 book. It is pertinent to note that the marriage of the plaintiff's daughter with the defendant's brother was on 25.08.1991. So, the plaintiff must have been busy with the marriage which was to take place soon and that may be the reason why we do not find any entry after 22.08.1991 in Ext.A2. In fact, with the last entry on 22.08.1991, the book had virtually been exhausted with only a few pages remaining. Ext.A2 does not appear to have been written up for the purpose of the suit. A.S. No. 775/1996 : 12 : 10. It is true that Abdulla Haji and Abdul Samad were prosecution witnesses in C.C. No. 689 of 1992 on the file of the Judicial First Class Magistrate-I, Thalassery. It is also true that their testimony was not accepted by the criminal court to enter a conviction against the defendant's brother for the alleged offence of cheating under Section 420 IPC. That does not mean that Abdulla Haji and Abdul Samad were liers or that their evidence cannot be accepted by the Civil Court. In fact, the judgment of the criminal court is not at all relevant and has no impact on the civil court after the decision of the Apex Court in Premshankar v. I.G of Police - AIR 2002 SC 3372. See also Narayanan v. Mathi – 1982 KLT 49. It is true that among the two persons who allegedly accompanied the defendant, Abdul Samad alone was examined. Abdulla Haji was not examined. It is not the law that the evidence is to be counted. Evidence is to be weighed and not counted and the plaintiff must have legitimately thought that Abdul Samad examined as PW2 would credibly evidence the court about the plaintiff's case and PW2 did indeed inspire the confidence of the trial Judge. A.S. No. 775/1996 : 13 : 11. This is a case which the fate of the case largely depends on the oral evidence of the parties. The trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility, was inclined to accept the testimony of PWs 1 and 2 in preference to that of PW1. This Court sitting in appeal, will be loath to interfere with the appreciation of the evidence by the trial Judge. (See Madhusudan Das v. Narayani Bai - AIR 1983 SC 114). 12. It is also true that the complaint filed before the C.I of Police as also the Police Officer have not been summoned or examined on the side of the plaintiff. But the complaint regarding the receipt of Rs.10,000/- on 21.08.1992 and another sum of Rs.1000/- and gold ornaments weighing one sovereign as a partial discharge of the claim was accepted by the trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility. Hence, the non-production of the complaint before the police or the non-examination of the police officer does not, in any way, falsify the plaintiff's case. Such being the position, I see little piece of interference with the judgment and decree passed by the trial court. This appeal is A.S. No. 775/1996 : 14 : accordingly dismissed. In the facts and circumstances of the case, the parties shall bear their respective costs. 13. The court below has awarded 12% interest on the suit claim from 06.07.1991, namely, the date of borrowal. That was not justified. Having regard to the facts and circumstances of the case, the plaintiff will be entitled to realise interest from the date of suit and that too at the rate of 7.5% till decree and thereafter at the rate of 6% till realisation. In the result, this appeal is dismissed with the modification regarding the interest. No costs. Dated this the 12th day of August, 2009. V. RAMKUMAR, JUDGE. rv A.S. No. 775/1996 : 15 : V. RAMKUMAR, J. ------------------------------------------------- A.S. No. 775 of 1996 -------------------------------------------------- Dated this the 12th day of August, 2009. JUDGMENT A.S. No. 775/1996 : 16 :