IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 OP(C).No. 539 of 2011(O) ------------------------ OS.282/2009 OF SUB COURT, PALA .................... PETITIONER : ------------------ SREELATHA T., W/O.HARISHARMA, AGED 39, AYSWARYA HOUSE, T.C.NO.8/248 (7), KAIRALI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM FROM ASWATHY BHAVAN, MEENACHIL VILLAGE, PALA KARA, PALA P.O. BY ADV. SRI.C.K.MOHANAN RESPONDENT(S): --------------- SHIBU SEBASTIAN, PANAMATTATHIL HOUSE, LALAM, PALA 686 575. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------- O.P.(Civil) No.539 of 2011 ----------------------------------- Dated this the 9th day of February, 2011 JUDGMENT The petitioner is the defendant in O.S.No.282 of 2009 on the file of the court of the Subordinate Judge of Pala. The suit was filed by the respondent for realisation of a sum of ` 2,48,575/- and future interest thereon. According to the plaintiff, the defendant borrowed a sum of ` 2,00,000/- from him on 18.12.2006. For repayment of the amount, a cheque dated 20.3.2007 was issued by the defendant to the plaintiff. On presentation of the cheque, it was dishonoured on the ground that the funds were insufficient in the account of the defendant. 2. The defendant contended that there was no transaction between the plaintiff and the defendant. She did not borrow any amount from the plaintiff and no cheque was issued to the plaintiff. She was residing at Thiruvananthapuram. On the date on which the alleged O.P.(C)No.539/2011 2 transaction took place, she was at Thiruvananthapuram. She does not know the plaintiff. She has never seen him. He has not seen her also. The defendant voiced an apprehension that the cheque leaf might have been taken by her sister which somehow came in the hands of the plaintiff. It is also stated that the plaintiff filed civil suits of the same nature against several persons. It is contended that the plaintiff is a money lender. 3. Along with the written statement, the defendant produced some documents to show her real signature. The defendant prayed that the signature in those documents may be compared by the court with the signature in the disputed cheque and also in the postal acknowledgment card allegedly signed by the defendant for having received the lawyer notice. The defendant contended that the lawyer notice was not received by her and she did not put her signature in the acknowledgment. 4. Later, in September 2010, the petitioner filed I.A.No.1187 of 2010 to send the disputed cheque and the O.P.(C)No.539/2011 3 acknowledgment card for expert opinion after comparison of the signature therein with the signature in the documents produced by the defendant. The court below dismissed the application as per the order dated 7th January, 2011, which is under challenge in the Original Petition. The court below held that there was vast difference between the signature found in the cheque and the acknowledgment card on the one hand and the documents produced by the petitioner. The court below also held that no useful purpose would be served by sending the documents for comparison by a handwriting expert. It was also noticed by the court below that in the plaint, the plaintiff has no case that the signature in the cheque was affixed in his presence. The court below thought that the matter requires evidence on the question of execution of cheque. The suit is filed based on the original cause of action and the cheque is produced as supporting evidence, said the court below in the order. Various other observations were also made in the order. 5. The court below stated cogent reasons for O.P.(C)No.539/2011 4 dismissing the application. In the nature of the contentions raised by the defendant, the burden of proof is on the plaintiff to prove the original transaction, which has been disputed. As stated by the court below, the case of the plaintiff is that the cheque was issued in discharge of the loan. Therefore, the plaintiff has to prove that the cheque was signed and delivered by the defendant. In these circumstances, the court below thought that no useful purpose would be served by sending the disputed signature for comparison with the alleged admitted signature by an expert. The order passed by the court below is legal and proper. No grounds are made out for interference under Article 227 of the Constitution of India. The Original Petition is accordingly dismissed. K.T.SANKARAN JUDGE csl