IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 RSA.No. 1113 of 2008(G) --------------------------------------- AS.18/2002 of SUB COURT, TIRUR OS.69/2000 of MUNI-MAGI.COURT, PONNANI .................... APPELLANTS/A1,2,4 & LRS OF A3/D1,2,4 & LRS OF D3: 1. KARUNAKARAN NAIR , S/O.MAVULLA KUZHIYIL PARVATHY AMMA, NANMANDA AMSOM DESOM, KOZHIKODE DISTRICT. 2. KALYANIKUTTY, MAVULLA KUZHIYIL, ATHOLY AMSOM DESOM, KOZHIKODE. 3. THANKAMANI, MAVULLA KUZHIYIL, NARIKUNI AMSOM DESOM, KOZHIKODE TALUK. 4. LEELA, W/O. KUTTINARAYANAN NAIR, 'SOUKYAM, KUNNAMANGALAM P.O. KOZHIKODE DISTRICT. 5. SUSMITHA, D/.O.KUTTINARAYANAN NAIR, DO. DO. BY ADV. SRI.SAJU.S.A SRI.SAJU.S.A RESPONDENT/RESPONDENT/PLAINTIFF: K.N.UDAYAN, S/O.KUTTIKRISHNAN NAIR, MANIMANDHIRAM, KUTTIPPALA, PONANI TALUK, MALAPPURAM DISTRICT. ADV. SRI.P.CHANDRASEKHAR (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No. 1113 of 2008 -------------------------- JUDGMENT Defendants 1, 2 and 4 as also the legal representatives of deceased third defendant are the appellants in this Regular Second Appeal. It is submitted by counsel for the appellants that the case of the respondent/plaintiff is that Exhibit A1 cheque is a cheque issued to him by late Gopalan in discharge of the debt due to him and that on presentation of the same for encashment, it was dishonoured by the drawee Bank and hence, he filed the suit based on the dishonoured cheque for recovery of the amounts due from the assets left behind by deceased Gopalan, which are now in possession of the appellants. It is also submitted that Gopalan died unmarried and issueless and his legal representatives are his brothers and sisters, who are defendants 1 to 4, of whom, the third defendant died and his legal representatives are appellants 4 and 5. RSA 1113/08 2 2. The suit was resisted by the defendants contending that Gopalan had no occasion to avail of any loan from any one and that he was well possessed and was doing some business at Guruvayur, though, later, for unknown reasons, he committed suicide. The heirs of deceased Gopalan, who are his brothers and sisters, are not claiming to have any knowledge of the personal affairs of late Gopalan. 3. The trial court raised necessary issues for trial considering the evidence adduced at trial, which consisted of oral evidence of PWs 1 and 2 and DW1 and documentary evidence Exhibits A1 to A3, decreed the suit in favour of the respondent/ plaintiff. 4. Defendants preferred appeal as A.S.No.18/02 before the Sub court, Tirur and that was dismissed by the first appellate court vide judgment dated 4.4.2008 confirming the correctness of the judgment and decree passed by the trial court. It is assailing the said concurrent decree and judgment that this appeal has been filed by defendants 1, 2 RSA 1113/08 3 and 4 and legal representatives of deceased third defendant. 5. It is contended before me by the learned counsel for the appellants/defendants that the only evidence that was adduced on the side of the respondent/plaintiff is the interested oral testimony of PW1 himself and the testimony of PW2, a witness, who claimed to have witnessed the transaction, whose evidence, if properly appreciated, would show that it is artificial and that he is not a truthful witness. It is further contended that the respondent/plaintiff has miserably failed to establish that Exhibit A1 cheque is one signed and delivered by late Gopalan to him in discharge of any debt and that the respondent/plaintiff has not cared to have any expert opinion obtained regarding the genuineness of the signature of late Gopalan in Exhibit A1 cheque. 6. It is worthy to note that Exhibit A1 is a cheque issued on an account maintained by late RSA 1113/08 4 Gopalan with the drawee Bank. The appellants have no case as to how, but for Gopalan issuing Exhibit A1 cheque to the respondent/plaintiff and the latter came into possession of such a cheque, which ought to be in the possession of late Gopalan. In support of the case set up by the respondent/ plaintiff, he has tendered evidence as PW1 and he has withstood the test of cross-examination from the side of the appellants. 7. PW2 is a witness, who claimed to have witnessed the transaction. Exhibit A2 is the memorandum of dishonour of Exhibit A1 cheque issued by the drawee Bank. The dishonour is only for the reason that there is no sufficient funds in the account of the drawer to satisfy the said cheque and not that signature of the drawer differs. It is considering all the above evidence and evaluation of the oral testimony that the trial court came to the conclusion that Exhibit A1 cheque is issued by late Gopalan to the respondent/plaintiff in discharge of the debt due to him. The first RSA 1113/08 5 appellate court has evaluated afresh the evidence in the case and has concurred with the verdict of the trial court. 8. The contention of the counsel for the appellants/defendants before me is that without expert opinion having been obtained as regards the signature in Exhibit A1 cheque, the suit should not have been decreed by the courts below. The nature of evidence required to establish the genuineness of the claim differs from one case to another depending upon the circumstances of each case. In the present case, the defendants are brothers and sisters of late Gopalan and they don't claim to have any knowledge of all the personal affairs of late Gopalan. DW1 alone has stepped into the box and he is the first defendant in the suit and his evidence was not sufficient enough to establish that without his knowledge late Gopalan would not enter into any transaction. Thus, this is a case where the defendants resisted the suit only for the sake of resistance to protect the property that has RSA 1113/08 6 come to their possession as legal representatives of late Gopalan and not that they were having any knowledge that Exhibit A1 is not a cheque issued by late Gopalan in favour of the respondent/plaintiff duly executed and signed by him. As rightly observed by the courts below on the strength of the observations made by the Apex Court in L.C.Goyal v. Mrs.Suresh Joshi (AIR 1999 SC 2222), Exhibit A1 cheque in the instant case was being dishonoured not for the reason that the signature in the cheque does not tally with the specimen signature of late Gopalan, but only that there is no sufficient funds in his account to honour the said cheque. If at all the signature also differed, in all probabilities, that would have been the reason to dishonour the cheque. If at all the appellants/defendants had a case that the signature in Exhibit A1 cheque is not one that tallies with the specimen signature furnished to the drawee Bank, they could have very well taken steps to call for and get down the specimen signature card from the Bank and still, if RSA 1113/08 7 doubt exists, to have it examined by an expert. In the instant case, the appellants/defendants having not adopted any such course, they cannot contend that the standard of proof that was required to establish the genuineness of Exhibit A1 cheque as being one duly executed, signed and delivered by late Gopalan in favour of the respondent/plaintiff is not sufficient and that the respondent/plaintiff himself should have got down expert opinion to prove the genuineness of the cheque when the defendants, who had no idea about the genuineness of the signature, contended that the cheque is not one issued by late Gopalan. 9. In the circumstances and the nature of the contentions and the facts available in the instant case, it is a case where, on the first respondent/ plaintiff adducing evidence by tendering evidence as PW1 and examining also a witness as PW2, producing also Exhibits A1 and A2, the burden stood shifted to the appellants/defendants to dislodge the weight of the evidence adduced on the side of RSA 1113/08 8 the plaintiff. They having not done that, it does not lie in the mouth of the appellants/defendants to contend that the respondent/plaintiff should have further proved his case by getting down expert opinion as regards the signature on the cheque. Thus, I see no merit in this Regular Second Appeal even on the facts of this case. Further, there is no question of law and much less any substantial question of law that arises for consideration by this Court in this Regular Second Appeal. In the result, I dismiss this Regular Second Appeal in limine. 12th February, 2009 (K.P.Balachandran, Judge) tkv