IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 RSA.No. 105 of 2011 ------------------------------- AS.199/2003 of SUB COURT, NEYYATTINKARA OS.409/2002 of PRL.M.C., NEYYATTINKARA .................... APPELLANT/RESPONDENT/PLAINTIFF: SUKUMARAN, S/O.K.VELAYUDHAN PILLAI, MOHANAVILASOM, MARIYAPURAM, CHENKAL VILLAGE. BY ADV. SRI.M.BALAGOVINDAN SRI.T.K.ANANDA PADMANABHAN RESPONDENT/APPELLANT/DEFENDANT: G.VIJAYAKUMARAN, S/O.GOPALA PILLAI, UTHRADAM, CHERUKUZHIKARA, KARODE DESOM, KARODE VILLAGE-695 506. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.105 of 2011 --------------------------------------- JUDGMENT Plaintiff in O.S.No.409/2002 on the file of Munsiff's Court, Neyyattinkara is the appellant. Defendant is the respondent. Appellant/plaintiff instituted the suit seeking a decree for realisation of Rs.34,000/- with interest allegedly borrowed by the respondent/defendant in execution of Exhibit A1 promissory note dated 5.11.2001. Respondent denied the execution, admitting his signatures in Exhibit A1, contending that his signature was obtained in a blank paper. 2. Learned Munsiff, on the evidence of the appellant as PW1 and respondent as DW1, accepted the evidence of PW1 and granted a decree. Respondent challenged the judgment and decree before Sub Court, Neyyattinkara in A.S.No. 199/2003. Learned Sub Judge, on re-appreciation of evidence, found that execution of promissory note is not RSA 105/2011 2 proved and appellant had no means to pay the amount at that time and therefore, set aside the judgment and decree of the learned Munsiff and dismissed the suit. It is challenged in this second appeal. 3. Learned counsel appearing for the appellant was heard. 4. Learned counsel argued that learned Sub Judge was not justified in reversing the findings of the learned Munsiff. It was vehementally argued that when respondent admitted his signature in Exhibit A1 and did not send any reply to Exhibit A2 lawyer notice demanding the amount covered by Exhibit A1 promissory note, in spite of the notice served on him, learned Sub Judge should not have reversed the findings of the learned Munsiff on surmises. Argument is that appreciation of evidence is not proper and in such circumstances, judgment of the first appellate court is to be reversed. RSA 105/2011 3 5. The question of law projected by the learned counsel in the appeal memorandum is whether first appellate court was justified in holding that presumption under Section 118 of Negotiable Instruments Act cannot be drawn, when the defendant admitted his signature in the instrument and the money transaction. 6. Exhibit A1 promissory note was projected by the appellant. Respondent, in his written statement, denied the execution. True, the signature in Exhibit A1 is admitted. Though it was argued that admission of the signature in a negotiable instrument is an admission of execution of a promissory note, I cannot agree with the same. What was admitted by the appellant is that his signature was obtained in a blank paper. It is not an admission of execution of a promissory note. As rightly found by the first appellate court, Exhibit A1 shows that promissory note was executed in the presence of a witness. That witness was not examined. Though non examination was justified before the RSA 105/2011 4 first appellate court on the ground that he is the father-in- law of the appellant, that is not a reason for non examination of the witness in a case where execution is denied. It is contended by the respondent that signature of the respondent was obtained in a blank paper. Learned Sub Judge also found that contention of the respondent that his signature was obtained in a blank paper is probabilised by the figure nine seen below the signature of the respondent, which cannot be there if the defence case is not correct. Though it was contended before the first appellate court that it is part of the signature, learned Sub Judge, on comparing the admitted signature of the respondent available in the records, held that there is no figure nine below the admitted signature. Whatever it be, learned Sub Judge, on proper appreciation of evidence, found that execution of the promissory note is not proved. It is only a finding of fact, on appreciation of evidence. The presumption available under Section 118 of Negotiable RSA 105/2011 5 Instruments Act can be invoked only if execution is admitted or proved. When execution is not proved, based on Section 118 of Negotiable Instruments Act, a decree cannot be granted for the sole reason that signature in the blank paper is admitted. In such circumstances, I find no substantial question of law involved in the appeal memorandum. Appeal is dismissed. 10th February, 2011 (M.Sasidharan Nambiar, Judge) tkv