IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 16TH OCTOBER 2007 / 24TH ASWINA 1929 RFA.No. 102 OF 2004(F) ---------------------- OS.285/1998 OF I ADDL.SUB COURT, THRISSUR APPELLANTS 1 TO 4/DEFENDANTS 1 TO 4 1. RAMAKRISHNAN S/O. KUMARAN, CHIRAYIL HOUSE, CHEMBOOKKAVU VILLAGE AND DESOM, P.O.CHEMBOOKAVU - 680 020, THRISSUR DISTRICT. 2. SOBHA, W/O. RAMAKRISHNAN, DO. DO. 3. AJITH S/O. RAMAKRISHNAN, DO. DO. 4. VISWAJITH S/O. RAMAKRISHNAN, DO. BY ADV. SRI.N.SUBRAMANIAM SRI.M.UNNIKRISHNA MENON SRI.M.S.NARAYANAN RESPONDENTS: PLAINTIFF & DEFTS. 5 & 6 1. JOHNSON S/O. IMBAVU PAUL, OLARIKKARA DESOM, ARANATUKARA VILLAGE, TRICHUR TALUK AND DISTRICT. 2. SIMON, S/O. FRANCIS, KUTTIKKADA HOUSE, THOTTATHIL LANE, CHEMBOOKAVU VILLAGE, P.O. CHEMBOOKAVU - 680 020, TRICHUR TALUK AND DISTRICT. 3 BIJU, S/O. VARGHESE, VELLATTUKARAN HOUSE CHEMBOOKAVU VILLAGE & DESOM, P.O. CHEMBOOKKAVU - 680 020, TRICHUR TALUK AND DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18.9.2007, THE COURT ON 16/10/2007, PASSED THE FOLLOWING: ORDER ON I.A. NO. 515/2004 IN R.F.A. 102/2004 // DISMISSED // 16.10.2007. SD/- P.R. RAMAN, JUDGE. SD/- V.K. MOHANAN, JUDGE. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = R.F.A. 102 OF 2004 = = = = = = = = = = = = DATED THIS, THE 16TH DAY OF OCTOBER, 2007. J U D G M E N T Raman, J. Appellants are defendants 1 to 4 in O.S. 285/1998 on the file of the First Additional Sub Court, Thrissur. The suit was one for realisation of money based on a promissory note. The first respondent herein is the plaintiff in the suit and Respondents 2 and 3 are Defendants 5 and 6. 2. According to the plaintiff, defendants 1 to 4 had executed a promissory note in favour of defendants 5 and 6 or order promising to repay on demand the sum mentioned therein and that defendants 5 and 6 have endorsed the promissory note dated 26.9.1997 in favour of the plaintiff. He is a bona fide holder of the same in due course for valuable consideration. He issued notice demanding the money from the appellants and since there was no response nor payment, the suit was instituted. 3. Defendants 5 and 6 remained ex parte. Defendants 1 to 4 filed a joint written statement denying the execution of any promissory note to defendants 5 and 6. According to them, one Abdul Azeez had entrusted certain vehicles with the third defendant for sale, who sold two cars bearing RFA 102/2004 :2: Reg. Nos. K.A. 11-M-7878 and KA-11-M-8001 to defendants 5 and 6 in exchange for two other cars, that it is based on the agreement between the third defendant and Abdul Azeez that the cars were entrusted by Abdul Azeez for sale in Kerala, that the third defendant was made to believe by Abdul Azeez that the cars were entrusted by the concerned owners with him for sale and that the third defendant was acting as a mediator only, that later, after the sale, on 24.9.1997 Abdul Azeez was brought to Thrissur by Bangalore-Girinagar Police Officers and the police seized of the above vehicles from concerned persons who were using the same, that a case was pending against Abdul Azees as Crime No. 215/1997 for offence punishable under Section 379 of the Indian Penal Code as he had stolen the cars KA- 11-M-8001 Tata Sumo, KA-11-M-8787 Maruthi Estate, KA-11-M-7878 Tata Sterra, KA-11-M-62 Maruthi 800 which were the cars entrusted by him to the third respondent for sale in the course of the business dealings between Azeez and the third defendant, that since defendants 5 and 6 were dispossessed of the vehicles by the seizure, which they purchased through the third defendant, they wanted to get back the money, that there are no business transactions between the plaintiff and defendants 1 to 4, that third defendant is not liable to pay any amount to defendants 5 and 6, since he was only a mediator who was not aware of the fact that the cars were stolen, RFA 102/2004 :3: that the third respondent is not responsible for the seizure of the vehicles from Respondents 5 and 6 by the Police, that the third defendant did not heed to the unlawful demand of respondents 5 and 6 to pay them the amount which they demanded, that Respondents 5 and 6 influenced the Circle Inspector of Police, Thrissur and obtained an agreement executed by them , that they were forced to put up their thumb impressions and signature on two blank papers and stamp was affixed on one of them, that the blank papers were later converted as a demand promissory note with an arbitrary figure and date, that the promissory note produced along with the plaint is false, concocted and forged one created by cheating, coercion and fraud by defendants 5 and 6 in collusion with the plaintiff and the Circle Inspector of Police, that the handwriting in the promissory note is not that of defendants 1 to 4, that the witnesses said to have seen the signatures in the documents are the henchmen of defendants 5 and 6 and the plaintiff, that there is collusion between the plaintiff and defendants 5 and 6 in filing the suit, that defendants 5 and 6 did not have the financial source to lend a sum of Rs. 7, 75,000/- to defendants 1 to 4, that the plaintiff is their close associate , that they initiated legal proceedings against Abdul Azeez and others at Bangalore for getting back the vehicles seized from them, that defendants 1 to 4 will be initiating criminal proceedings against defendants 5 and 6 and RFA 102/2004 :4: the plaintiff for cheating, forgery and fraud committed by them, that the plaint is barred by limitation and the suit is liable to be dismissed. According to those defendants, the Circle Inspector of Police, Thrissur, summoned the third defendant to his Office and when he met the C.I. of Police at 12.30 P.M. defendants 5 and 6 were also present there, that the Circle Inspector of Police demanded that the third defendant should pay a sum of Rs. 7, 75,000/- to defendants 5 and 6 within six months, but as he was not prepared to listen to the unreasonable and illegal demand, he was threatened with dire consequence and physical assault, that he was made to stand in the police station till midnight, that defendants 1, 2 and 4 being his father, mother and brother, went to the police station and in the presence of them, the Circle Inspector and his subordinates abused him in obscene language and pulled, pushed and physically assaulted him demanding to execute the documents in favour of defendants 5 and 6 for payment of Rs. 7,75,000/- that it was in such circumstances, that defendants 1 to 4 executed the document in favour of defendants 5 and 6 as a result of force exerted on them, that the marriage ceremony of the 4th defendant was fixed on the next day and hence there was no other way but to heed to the demands of the police, that defendants 5 and 6 along with two police men took defendants 1, 2 and 4 to the document writer Jose who is a close RFA 102/2004 :5: associate of the 5th respondent and came back with him to his Office from where a document styled as an agreement was written up, and that thereafter, they returned to the office of the Circle Inspector who coerced them to sign the document as also the blank paper as stated earlier. They prayed that the suit be dismissed. 4. The court below raised the following issues for trial: 1. Whether the coercion contended in the written statement is true? 2. Whether the suit promissory note is a fabricated document? 3. Whether the promissory note was supported by consideration? 4. Whether the plaintiff is a bona fide holder in due course of the promissory note? 5. What amount if any is due to the plaintiff and who are all liable to pay the same? 6. Reliefs and costs? 5. On the side of the plaintiff, he was examined as PW.1 and the document writer as PW.2. Exts.A1 to A6 were also marked. On the side of defendants, the third defendant was examined as DW1 and Exts.B1 to B3 were marked. Marking of Exts. B1 and B3 were objected to by the plaintiff, they being Photostat copies and it was subject to such objection that the marking was made. Ext.B2 is admitted by the plaintiff which is a karar dated 24.4.1997 entered into between Abdul Azeez and the third defendant. RFA 102/2004 :6: Ext. B1 is the copy of a complaint said to have been submitted before the Circle Inspector of Police and Ext.B3 is the copy of the compensation liability deed. Issue Nos. 1 to 3 were tried together. The plaintiff is the holder in due course of Ext.A1 promissory note. According to him, defendants 1 to 4 jointly executed Ext.A1 in favour of defendants 5 and 6 which is a promissory note on demand to repay the amount mentioned therein or order. On 13.3.1998, the same was endorsed in favour of the plaintiff by defendants 5 and 6 after receipt of consideration. the plaintiff, after repeated demands by defendants 1 to 4, for repayment of the amount, but in the absence of any response or payment, the suit was laid for the plaint amount with 18% interest. The case as set out in the plaint was supported by the evidence of PW.1. The third defendant gave evidence in support of his contention as raised in the written statement. Besides the oral testimony of DW.1, there is no other evidence to support the plea of coercion or influence exerted on the third respondent or to show that some blank paper was got signed from him which was subsequently made as a promissory note Ext.A1. Even though DW.1 had stated in his cross examination about a complaint said to have been given by his mother, he admitted of not having enquired as to what happened to that complaint later. Neither the Circle Inspector nor any other police officials were summoned RFA 102/2004 :7: to prove the case of the defendants. The alleged complaint said to have been made to the higher officials were also not brought on record by adducing any evidence by summoning the officer to whom the said compliant was given. Even though a copy of the indemnity agreement (Ext. B3) said to have been written by the document writer PW.2 in which defendants 1 to 4 have affixed their thumb impression was produced by the third defendant along with his proof affidavit on 4.7.2003, admissibility of the same was objected to by the plaintiff. Ext. B1 is the Photostat copy of the complaint said to have been made to the higher authorities in the Police Department which were also produced along with the proof affidavit. According to the defendants, Ext. B3 is an agreement written by PW.2 on 26.9.1997 night. But this was not confronted to while PW.2 was in the box. According to the plaintiff, Ext.B3 was not the document which was shown to him in chief examination. Exts. B1 and B3 were held to be not certified copies or true copies taken from the original and attested as true copies. According to DW.1, he got Ext.B3 from the Office of PW.2 by his friend Joy, who managed to get in some way. But the said Joy was not examined. According to the third defendant, he got the same only in the first week of July. Though according to DW.1 the agreement was got signed from the police station along with another blank paper and even according to the RFA 102/2004 :8: third defendant, defendants 1, 2 and 4 were at that time in the police station, none of them were examined to support his case and no steps were taken to call for the originals of the agreement from the office of PW.2. According to DW.1, Joy took the copy of the same from the office of PW.2 who was in custody of the said document. No attempt was made to call for the originals of Exts. B1 and B3 or to examine any witness to prove the existence of such documents. They have also not sought permission to adduce secondary evidence regarding Exts.B1 and B3. The court below, after considering the evidence as discussed above, came to the conclusion that those documents cannot be admitted in evidence even as secondary evidence. 6. Ext. B2 is an agreement executed between the third defendant (DW1) and one Abdul Azeez regarding the sale of cars, where the value of the vehicles are mentioned. As per this agreement, the third defendant has to pay the amounts mentioned therein for the cars to Abdul Azeez and he is entitled to fix the price and take excess amount as commission. The entrustment of the vehicle by Abdul Azeez to the third defendant is beyond dispute. the version of DW.1 that the price of the vehicle was directly paid to Abdul Azeez by defendants 5 and 6 is therefore, belied by Ext.B2 as regards the payment aspect is concerned. The court below, in such RFA 102/2004 :9: circumstances, found that the oral testimony of DW.1 is against the recitals in Ext.B2 agreement and no reliability can be placed on his evidence regarding this aspect. There was no reliable evidence regarding coercion and undue influence from police station as stated by DW.1. Even the parties to the documents who are defendants 1, 2 and 4 are not examined. The documents were also not summoned to the police station. No police officer was examined. Hence the case that a stamped blank paper was got signed which was subsequently made use of as a promissory note (Ext.A1) and some other agreement were also executed by defendants 1 to 4 jointly based on such coercion was rejected. 7. Coming to the evidence on the plaintiff's side, PW.2 is the document writer. According to him, Ext.A1 promissory note was prepared by him in his own hand writing and he saw the defendants affixing their signature in Ext.A1. According to him, he had even seen receiving consideration from defendants 5 and 6 and later, the plaintiff met him and asked him regarding the promissory note stating that he intends to purchase Ext.A1. Ext.A1 promissory note was prepared from the house of the first defendant and defendants 1 to 4 had affixed their signatures. The court below found that Ext.A1 was executed by defendants 1 to 4 in favour of Defendants 5 and 6 for valid consideration and that it is not a fabricated RFA 102/2004 :10: document. It was also found that it was not executed by coercion; but it is supported by consideration. Those issues were found in favour of the plaintiff. 8. Learned counsel Sri. Subramaniam, appearing for the appellants contended that the court below went wrong in refusing to rely on Ext.B3. According to him, PW.2 has admitted in cross examination that it was written by him. Defendants 5 and 6 remained ex parte and defendants 1 to 4 denied the acceptance of any money from Defendants 5 and 6. There was only the uncorroborated version of PW.2 for proving consideration and when the defendants having denied passing of consideration for the promissory note, the burden is on the plaintiff to prove the same, which they have not discharged. Hence presumption under Section 118 of the Negotiable Instruments Act is not available either to the 5th defendant or to the 6th defendant and in consequence, to the plaintiff. This vital aspect is overlooked by the court below. He also placed reliance on the certified copies of the petitions, objections and orders passed by the Metropolitan Magistrate, Bangalore which are documents produced before this Court to show that the promissory note executed is without consideration. According to him, for arriving at a final decision, evidence will have to be adduced and the matter be remanded to the trial court with necessary RFA 102/2004 :11: direction. He has also submitted that the application I.A. 3503/2003 filed by the appellants to summon defendants 5 and 6 was wrongly dismissed by the court below. In the common order passed by the court below in I.A. Nos. 3501, 3502 & 3503/2003 dated 7.7.2003, it was found that defendants 5 and 6 are in the position of the plaintiff and so they cannot be summoned at the instance of the other defendants; however, it can be done at the discretion of the court after closing of the evidence. But in the judgment under appeal, on the point as to whether Defendants 5 and 6 ought to have been summoned is not dealt with. I.A. 3503/2003 was a petition for summoning defendants 5 and 6 to be called as witnesses which was dismissed by the court below overlooking Order 16 Rule 14 of the Code of Civil Procedure. Defendants 5 and 6 had filed petitions under Sections 451 and 457 Cr.P.C for getting release of the vehicles. The very fact that they got release of the very same vehicles from Bangalore Court itself is a proof to show that they want those cars also besides the value of the pro-note alleged to have been endorsed in favour of the plaintiff for valuable consideration. Hence this is an act of mala fide and therefore, collusive also and no consideration was also paid. The presumption, if any, under Section 118 of the negotiable Instruments Act has been rebutted in the light of the documents sought to be produced in the appeal. The RFA 102/2004 :12: pronote in favour of Defendants 5 and 6 is for Rs.7,75,000/ which was endorsed on 30.3.1998 after receiving the cash. But Ext.A6 extract of the plaintiff's Bank account shows that on 16.3.1998 Rs. 4 lakhs and on 28.3.1998 Rs. 1,50,000/- alone is seen to have given to Simon K. Francis and Biju (Defendants 5 and 6) respectively and no amount is seen drawn after those dates on which day, the endorsement is said to have been made. The total amount drawn from the Federal Bank by Defendants 5 and 6 comes to Rs. 5,50,000/- only. There is no explanation how the balance of Rs. 2,25,000/- is paid on 30.3.1998 by the plaintiff to defendants 5 and 6. The endorsement that entrustment was made after receipt of full consideration is not fully proved at least in respect of an amount of Rs. 2,25,000/-. 9. Before we consider these contentions on behalf of the appellants, we shall first dispose of the petitions filed by the appellants herein seeking to produce certain documents. I.A.516/2004 is a petition filed under Order XLI Rule 27 of the Code of Civil Procedure seeking permission to produce certain documents in the appeal. There are about 13 documents produced along with the affidavit. Sl. No.1 is a petition for release of motor vehicle Reg. No. KA-11/M/7878 filed before the Additional Chief Metropolitan Magistrate, Bangalore, filed by the 5th defendant. Sl. No.2 is a similar RFA 102/2004 :13: petition by Simon K. Francis filed before the same court for release of Vehicle No. KA-11/M/8001. Sl. No.3 is the written objection by Harichandra Reddy seeking release of KA-11/M/7878 to him. Sl. Nos. 4 and 5 are B register extracts in respect of the above two vehicles. Sl. No.6 is a vakalath executed by Biju K.V. in favour of Advocates at Bangalore. Sl. No.7 is the surety bond executed by Jose K. Francis for release of Motor Vehicle 8001. Sl. No.8 is the Indemnity bond executed by Simon K. Francis before the First Additional Chief Metropolitan Magistrate, Bangalore. Sl. Nos. 9 and 10 are surety bonds executed by Jose, son of Francis and Basavaraju for release of Motor Vehicle 8001. Sl. No.11 is an order passed by the First Additional Chief Metropolitan Magistrate, Bangalore for release of Motor Vehicle 8001 in crime No. 246/1997. Sl. No. 12 is an indemnity bond executed by Simon K. Francis for release of the above said vehicle and Sl. No. 13 is a surety bond executed by Suresh for the said purpose. 10. In the affidavit filed in support thereof, it is averred that after the decree in O.S. 285/1998, the appellants came to know about the complaints filed by Defendants 5 and 6 before the Additional Chief Metropolitan Magistrate Courts, Bangalore under Section 451 and 457 of the Code of Criminal Procedure for release of two vehicles bearing Reg. No. KA-11-M- RFA 102/2004 :14: 7878 and KA-11-M-8001, which were taken possession by the Bangalore Police from them. Objections were called for and after hearing all the parties, the learned Magitrate passed an order on 10.11.1997 releasing the above said vehicles to defendants 5 and 6 on execution of indemnity and security bonds. The directions in the order were duly complied with by those defendants and the appellants were not aware of the complaints by Defendants 5 and 6 and the orders passed by the Court, as aforesaid and it was after much search in different Magistrate Courts at Bangalore City and Suburbs that the documents could be traced out. According to the appellants, the documents produced in this appeal have a real and direct bearing on the question to be adjudicated and there is no willful negligence or laches on their part for not producing those documents earlier. 11. This application was filed along with the appeal memorandum. No counter was filed until 8th September, 2007. So however, during the course of hearing, a counter affidavit was filed by the first respondent on 8.9.2007 opposing the prayer made for receipt of additional documents. Besides, as per the averments in the counter affidavit, documents 1 to 14 produced have no relevance in the case. It is admitted that orders were passed by the Firist Additional Chief Metropolitan Magistrate Court, Bangalore for release of the vehicle involved in Crime No. 246/1997 to the RFA 102/2004 :15: 5th defendant, but he was not given release of the same. The State challenged the above order before the Sessions Court who set aside the above order and hence at no point of time, after repossession of the vehicle by the police in 1997, it came to the possession of defendants 5 and 6. Further, no ground under Order 41 Rule 27 CPC is attracted and those documents were in existence when the matter was tried by the trial court and the appellants were aware of these documents. On the same day, the first respondent filed I.A. 3345/2007 seeking a similar relief to produce an affidavit sworn to by the second respondent and I.A. 3436/2007 dated 15th September, 2007, seeking to produce the certified copy of the order in Crl. R.P. 311/1997 passed by the Principal City Sessions Court, Bangalore, dated 9.1.1998. 12. We find that the documents produced as per I.A. 516/2004 are documents related to the release of the vehicle through the Metropolitan Magistrate Court and the petitions filed for such purpose and the security documents said to have been filed as a condition for such release. The appellants are not parties therein and there is no reason to disbelieve the averments made in the affidavit that they came to know about these documents only later in point of time. Defendants 5 and 6 who remained ex parte in the suit and who were the purchasers of the vehicles in question, RFA 102/2004 :16: have not filed any objection against the receipt of these documents earlier. Further, the first respondent himself has sought to produce the appellate order passed in the case relating to the release of the vehicle. In these circumstances, I.A. 516/2004 filed by the appellants and I.A. 3436/2007 filed by the first respondent are allowed.