IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 AS.No. 109 of 1999() -------------------- OS.81/1994 OF SUB COURT, NEYYATTINKARA .................... APPELLANT/DEFENDANT: ------------------------------------ A. SHAJAHAN, AGED 38, TIMBER MERCHANT NEAR POST OFFICE, ARASSUMMOODU, KULASEKHARAM P.O., TAMILNADU. BY ADV. SRI.ESM.KABEER RESPONDENTS/PLAINTIFFS: ---------------------------------------- 1. J. ASHOKAN, AGED 30 YEARS, PLAKKOTTUKONAM KADAYARA PUTHEN VEEDU, VELLARADA P.O. (DIED) ADDL. 2. PANKAJAKSHY, D/O. NARAYANI AGED 62, HINDU, PLAKKOTTUKONAM KADAYARA PUTHEN VEEDU, VELLARADA DESOPM, VELLARADA VILLAGE, NEYYATTINKARA TALUK. (NAME OF THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DT.4.10.99 VIDE MEMO CF 11771/99). BY ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE SRI.MURALI PURUSHOTHAMAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30.9.2009, THE COURT ON 5.10.2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.5628/99 IN A.S.NO.109 OF 1999 DISMISSED 5.10.2009 SD/- M.L.JOSEPH FRANCIS, JUDGE /TRUE COPY/ M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 109 of 1999 - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of October, 2009 JUDGMENT This appeal is filed by the defendant in O.S.No. 81 of 1994 on the file of the Sub Court, Neyyattinkara. Respondents 1 and 2 herein are the plaintiffs 1 and 2 in that suit, which was filed for money based on a dishonoured cheque. 2. The case of the plaintiff briefly is as follows. The plaintiff is a timber dealer and he used to supply timber to the defendant on cash and on credit basis. On 7.7.1989 the plaintiff supplied timber worth Rs.25,000/- to the defendant and the defendant issued a cheque for the amount drawn on the Bank of Tamil Nadu, Kulasekharam Branch. It is also stated that at the time of issuing the cheque, the defendant requested to present it only after A.S.No. 109 of 1999 2 15.12.1989. The plaintiff presented the cheque on 19.12.1989 through the State Bank of Travanore, Kudappanamoodu Branch. It was returned with an endorsement that the bank was under moratorium That fact was informed to the defendant and he told that the cheque can be encashed on completion of amalgamation process by the defendant and bank authority. After the amalgamation process of the bank with Indian Overseas Bank, the cheque was presented and the same was returned on 2.3.1990 with an enforsement 'out of date'. A suit notice was issued to the defendant and in reply the bank has informed that the cheque became stale and there was no sufficient funds also. 3. The case of the defendant is that the plaintiff was an employee of the defendant and he has not supplied timber as alleged in the suit. The defendant is a timber merchant at Kulasekaram. While so, in 1989 some cheque leaves of the defendant were found missing. Since the plaintiff has access to all the papers in the defendant's office, he had done the same. A.S.No. 109 of 1999 3 When questioned, the plaintiff admitted the same and returned the cheque leaves, except Ext.A2 cheque. The cheque produced is not issued by the defendant. It is not supported by consideration. There was no direction to present the cheque after a particular date. There has never been any transaction between the plaintiff and the defendant. No notice was issued on 2.3.1990, as alleged. 4. In the Sub Court PW1 and DW1 were examined and Exts.A1 to A5 and B1 to B3 were marked. The learned Sub Judge, on considering the evidence, found that the disputed cheque was executed by the defendant and the suit was decreed allowing the plaintiff to realise a sum of Rs.31,692/- with interest at the rate of 6% p.a. from the date of the suit till the date of realisation and cost from the defendant and his assets. Against that judgment and decree the defendant filed this appeal. 5. Heard the learned counsel for the appellant. The learned counsel submitted that no transaction took place within A.S.No. 109 of 1999 4 the jurisdiction of the court below and the appellant resides and conducts business outside the jurisdiction of the court below and as such the court below has no jurisdiction to entertain the suit. The learned counsel for the appellant further submitted that the very basis of the appellant's case is that certain cheque leaves had been stolen by the original plaintiff while the plaintiff was working as an employee of the appellant and by misusing one such stolen cheque leaf the plaintiff filed the suit. The learned counsel for the appellant further submitted that the appellant has not executed the disputed cheque and it is not supported by consideration. 6. The suit was originally filed by the first plaintiff, who died during the pendency of the suit. The mother of the plaintiff was impleaded as additional second plaintiff. Ext.A1 is the succession certificate issued by the IInd Additional Munsiff Court, Neyyattinkara in O.P.(Succession) No.12 of 1995 dt.9.1.1996 empowering the additional second plaintiff to draw A.S.No. 109 of 1999 5 and collect the amount due under the present suit. In the plaint it is specifically pleaded that the suit transaction took place at Vellarada Village and that the cause of action arose at that Village, within the jurisdiction of the Sub Court, Neyyattinkara. The additional second plaintiff was examined as PW1. PW1 deposed that the disputed cheque was executed by the defendant at the residence of the plaintiff, within the jurisdiction of the Sub Court, Neyyattinkara. There is no contra evidence to show that the suit transaction took place outside the jurisdiction of that Court. Therefore, the learned Sub Judge is justified in finding that the said Court has jurisdiction to entertain the suit. 7. The case of the plaintiff is that the plaintiff is engaged in timber business and he supplied timber worth Rs.25,000/- to the defendant on 7.7.1989 and the defendant issued Ext.A2 cheque dt. 7.7.1989 for that amount at the house of the plaintiff as the price of the timber. When the plaintiff presented that cheque for the first time, it was returned due to the reason that A.S.No. 109 of 1999 6 there was moratorium in the drawee bank, the Bank of Tamil Nadu, and when the plaintiff presented the cheque for the second time, it was returned for the reason that it has become stale. It is an admitted fact that the drawee bank, the Bank of Tamil Nadu, was amalgamated with the Indian Overseas Bank. In Ext.A5 reply notice dt.29.11.1991 issued by the Indian Overseas Bank, it is stated that the plaintiff presented the cheque when the erstwhile Bank of Tamil Nadu was under moratorium. That bank was amalgamated with the Indian Overseas Bank w.e.f. 20.2.1990 and that Ext.A2 cheque dt. 7.7.1989 was received by that bank only on 2.3.1990. The bank could not honour the cheque for the reason that the cheque was presented after six months and that it had become stale as per the normal banking practice and that there was no sufficient fund in the account of the defendant. 8. In the written statement the defendant denied the entire transaction. It is contended by the defendant that he had no A.S.No. 109 of 1999 7 business transaction with the plaintiff at any time and that the plaintiff never supplied any timber to the defendant. He further contended that the plaintiff was an employee of the defendant and that during 1989 some cheque leaves from the defendant's cheque book were found missing and suspicion fell on the plaintiff, who had access to all papers in the defendant's office and that subsequently the plaintiff returned back the cheque leaves, except Ext.A2 cheque leaf. By misusing the same, the plaintiff filed the suit. The defendant has not adduced any evidence to show that the plaintiff was an employee under him at any time. 9. When the defendant was examined as DW1, he admitted that the original plaintiff died in a lorry accident involving the plaintiff's own lorry. As observed by the learned Sub Judge, since the plaintiff was a lorry owner there is no probability that the plaintiff was an employee under the defendant during the relevant period. A.S.No. 109 of 1999 8 10. PW1 deposed that she saw the defendant signing Ext.A2 cheque and handing over the same to the first plaintiff. DW1 deposed that he had neither written nor signed Ext.A2 cheque. When the signature of DW1 in his Vakalath and Ext.A4 acknowledgment were shown, he denied his signatures in that admitted documents. 11. In the written statement, the defendant has not denied his signature in Ext.A2 cheque. The defendant has no case that he had kept blank signed cheques. In Ext.A5 reply notice issued by the Indian Overseas Bank, it is not stated that Ext.A2 cheque was dishonoured due to variation in signatures. More over, the defendant has not informed his bank that he had lost Ext.A2 cheque leaf. 12. PW1 deposed that the defendant purchased timber from the plaintiff and that the defendant issued Ext.A2 cheque towards the price of that timber. Ext.B2 is the copy of a private complaint filed by the plaintiff against the defendant alleging A.S.No. 109 of 1999 9 that the defendant issued Ext.A2 cheque for Rs.25,000/- when the defendant borrowed Rs.25,000/- from him. Ext.B3 is copy of charge sheet in that case, in which it is stated that the plaintiff had timber business with the defendant and that the defendant gave Ext.A2 cheque for Rs.25,000/- in that transaction. Therefore, there is no inconsistency with regard to the cheque transaction in the suit and in the criminal complaint. 13. The learned Sub Judge, on considering all these aspects of the matter, came to the conclusion that Ext.A2 cheque was executed by the defendant and that it was supported by consideration, in view of the presumption under Section 118(a) of the Negotiable Instruments Act. The evidence adduced by the defendant is not sufficient to rebut that presumption. Since Ext.A2 cheque is issued by the defendant and that it is supported by consideration, the learned Sub Judge is perfectly justified in decreeing the suit. The result is that the appeal is liable to be dismissed, as it is without any merit. A.S.No. 109 of 1999 10 14. Accordingly, this appeal is dismissed. The judgment and decree in O.S.No. 81 of 1994 on the file of the Sub Court, Neyyattinkara is confirmed. The parties are directed to suffer their respective cost in this appeal. (M.L. JOSEPH FRANCIS) Judge tm