IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 AS.No. 711 of 1998(C) --------------------- OS.155/1995 of SUB COURT, THRISSUR .................... APPELLANTS: PLAINTIFFS ------------------------------------ 1. ROSY, W/O CHALAKKAL PADOOKKARAN CHAKKORU 2. SIMON, S/O ROSY 3. MAGIE, D/O ROSY 4. ANTO S/O ROSY ALL ARE RESIDING AT PURANATTUKARA VILAGE, THRISSUR TALUK BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON RESPONDENT: DEFENDANT --------------------------------------- DAVIS, S/O AKKARA VAREED, RESIDING AT PURANATTUKARA VILLAGE ADV. SRI.S.R.DAYANANDA PRABHU SRI.G.SIVAKUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- A.S.No.711 of 1998 ---------------------------------------- Dated this the 7th day of October, 2009 JUDGMENT The plaintiffs in O.S No. 155/1995 on the file of the Sub court, Thrissur are the appellants The suit is filed for realisation of Rs. 79,300/- . The trial court dismissed the major portion of the claim and partly decreed the suit allowing the plaintiffs to recover a sum of Rs. 6,980/- with interest at 12% per annum from 31.8.1992 till realisation. Hence the appeal. The parties hereinafter referred to as plaintiffs and defendant as arrayed in the suit. 2. The plaintiffs are the legal heirs of deceased Chakkoru who died on 27.9.1992. According to the plaintiffs the defendant had borrowed a sum of Rs. 61,000/- from the deceased Chakkoru and a cheque was issued for that amount on 30.7.1992. Since the said amount was not paid after repeated requests, the suit was filed by the plaintiffs after the issuance of a registered lawyer notice. 3. In the written statement filed by the defendant he admitted that there were some transactions between himself and deceased Chakkoru. According to him on 30.7.1991 he borrowed a sum of Rs. 30,000/- from Chakkoru, that as on that date he owes a sum of Rs. 31,000/-to deceased Chakkoru and therefore clubbing both amounts he issued a cheque for Rs. 61,000/- as a security to Chakkoru on 31.7.1991. A.S. No.711 of 1998 -2- He also contended that he had paid a total sum of Rs. 65,000/- to Chakkoru and the balance amount due to deceased Chakkoru as on 31.8.1992 is Rs. 6,980/- towards he interest. 4. The 4th plaintiff was examined as PW1 The defendant was examined as DW1 Ext.A1 to A4 and Ext.B1 were marked 5. The suit was filed for realisation Rs.79,300/-, with interest at 12% per annum on Rs.61,000/- from the date of suit till realisation. Ext.A1 cheque is dated 30.7.1992. The defendant's definite case is that he repaid Rs.65,000/- and the date of Ext.A1 cheque is 30.7.1991 and not 30.7.1992. The defendant admitted the issuance of a cheque for Rs.61,000/- due to Chakkoru as on 31.7.1991 . It is his further case that he discharged the liability due under Ext.A1 cheque and only Rs. 6,980/- is due to the plaintiffs towards the interest as on31.8.1992 In fact the defendant admitted before the trial court that he had written “Sixteen one thousand only” and since it was found a mistake he himself has corrected as “Rs. Sixty one thousand only” and that the year “1992” in the cheque is not written by him and he had written “1991” 6. After relying on the decision reported in Bhaskaran Chandrasekharan Vs Radhakrishnan 1998 (1) KLT 881 the counsel for the appellants submitted that when once the execution of the cheque is admitted, presumption under Section 118 of the Negotiable Instruments Act 1881 arise until the contrary is proved . It is well settled law that initial presumption rests on the plaintiff to prove that the cheque was issued A.S. No.711 of 1998 -3- by the defendant,that as soon as the execution of the cheque is proved the rule of presumption laid down under Section 118 of the Negotiable Instruments Act applies. So also once there is admission of issuance of a cheque or the same is proved to have been issued the presumption under Section 118 is raised that it is supported by consideration 7. Though the defendant claimed that he had repaid Rs. 65,000/- there is no materials produced by him to prove that he had repaid the said amount apart from his interested testimony as DW1. So long as there is no evidence to prove that he has repaid the said amount there is no justification for the court below in passing a decree to recover the paltry sum of Rs.6980/- with 12% interest per annum from 31.8.1992 till realisation. I am of the view that in the above said circumstances the plaintiffs are eligible to recover the amount of Rs.61,000/- covered by Ext.A1 cheque with interest. In the result, the decree and judgment passed by the trial court stands modified, directing the defendant to pay to the plaintiffs a sum of Rs 79,300/- with interest at the rate of 12% on Rs. 61,000/- from 31.8.1992 till realisation. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S. No. 711 of 1998 ---------------------------- JUDGMENT 7th October, 2009