IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 AS.No. 540 of 1998() -------------------- OS.30/1996 of SUB COURT, QUILANDY .................... PLAINTIFF/APPELLANTS: -------------- NIDIYANDI DAMODARAN NAIR, MOODADI AMSOM,DESOM, KOYILANDY. BY ADV SRI.R.PARTHASARATHY RESPONDENT(S): --------------- MELANTHARA KUNIYIL PRADAPAN, MOODADI AMSOM, VELAKKAD DESOM, KOYILANDY TALUK. ADV. SMT.BINDU GEORGE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kkj P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - A.S.No.540 of 1998 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of December, 2011 J U D G M E N T The plaintiff in a suit for money based on a dishonoured cheque is the appellant. He was non-suited by the court below. 2. According to the plaintiff the defendant borrowed a sum of Rs.40,000/- on 1st October 1995 promising to return the same within a period of two months. When the amount was not returned within the stipulated time, the plaintiff demanded the same and the the defendant then issued Ext.A1 cheque dated 05.12.1995. When the cheque was presented for en-cashment, it was bounced for want of funds. Lawyer Notice issued to the defendant was received by him but invoked no response. As the amount remained unpaid the suit was laid. 3. The defendant resisted the suit. He denied the borrowal of Rs.40,000/- and contended that he had borrowed Rs.10,000/- on 02.08.1994. According to him, the -:2:- A.S.No.540 of 1998 plaintiff is a money lender and he seeks high interest for the amount advanced by him. The defendant would say that the date on which he borrowed a sum of Rs.10,000/-, he issued a blank cheque to the plaintiff. Further claim of the defendant is that he had returned the amount along with interest but the cheque was not returned by the plaintiff and he demanded more interest on the amount borrowed by him. Since the defendant was not amenable to pay more amount as interest the suit has been laid with ulterior motive. 4. On the above pleadings issues were raised. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendant examined himself as DW1. 5. The lower court after an elaborate consideration of the evidence dismissed the suit pointing out that the alteration shown in the cheque was made by the plaintiff and therefore the suit has to fail. -:3:- A.S.No.540 of 1998 6. The said judgment and decree are assailed in this appeal. 7. The learned counsel appearing for the appellant pointed out that the court below has not considered the pleadings and evidence in the case. The definite case of the defendant is that he had issued only a blank cheque with signature alone and the contents were filled up by the plaintiff. At the time of evidence the defendant put forward a case that he had inserted the figure of Rs.10,000/- and that was altered by the plaintiff. This claim of the defendant at the time of evidence had no basis in the written statement. It is also pointed out that the defendant after receiving the notice, did not care to respond stating the true state of affairs. The learned counsel went on to point out that the court below was not justified in embarking on an investigation into the alteration of amount when there was no such pleadings in the written statement. If the defendant had such a case, it is for him to produce -:4:- A.S.No.540 of 1998 evidence to that effect and the court was not expected to form an expert's opinion about alteration. The learned counsel also pointed out that the judgment and decree of the lower court is really unsustainable in law. 8. The learned counsel appearing for the respondent on the other hand pointed out that there is no evidence to show that the amount of Rs.40,000/- has been given to the defendant and in the absence of any evidence the suit has to fail. It is also pointed out by the learned counsel that the court below had looked at the cheque and found that there is alteration. There is no reason for interference by this Court. It is also pointed out that in any case, it is found that the findings of the court below is unsustainable in law and the matter is remanded to the trial court enabling the defendant to adduce further evidence. 9. After having heard the counsel on both sides and after perusing the records it is found that it is extremely difficult to sustain the judgment and decree of the court -:5:- A.S.No.540 of 1998 below. 10. The definite case put forward by the plaintiff was that in October 1995 the defendant had borrowed a sum of Rs.40,000/- from him promising to repay within a period of two months. He did not do so. And when the amount was demanded Ext.A1 cheque was issued. The further case is that it get bounced when presented for want of funds. The records indicate that a notice was issued to the defendant and he had received the same but no reply is seen sent. 11. The defendant resisted the suit by pointing out that he had borrowed only a sum of Rs.10,000/- and that was on 02.08.1994 and at that point of time he had issued a blank cheque containing his signature alone. He further contended that he had repaid the amount borrowed by him with interest and since he was not amenable to pay more interest as demanded by the plaintiff the cheque was not returned. His further case was that since he was laid up he was not able to reply to the notice. -:6:- A.S.No.540 of 1998 12. The fact which found favour with the lower court was that at the time of evidence, the defendant put forward a case that he had inserted Rs.10,000/- in the cheque and that was altered by the plaintiff to Rs.40,000/-. The court then plays the role of 'Sherlock Homes' and the finds out that there is alteration. That exercise was quite un call for in the absence of any pleadings to that effect. 13. The case of the defendant cannot be sustained for more than one reason. Even according to him, he had borrowed a sum of Rs.10,000/- and had repaid the same with interest. There is no evidence regarding the said aspect. One must also remember that he had admitted that the cheque which is the subject matter of suit was issued at the time of borrowing Rs.10,000/- i.e.on 02.08.1994. Here one may recall the statement in the plaint to the effect that the cheque was issued in December, 1995. It would have been extremely easy for the defendant to show that the claim of the plaintiff that the cheque was issued in -:7:- A.S.No.540 of 1998 December 1995 is wrong and that was in fact issued on 02.08.1994. No attempt was made to that regard also. 14. The stand in the written statement was that the at time of borrowal of Rs.10,000/- a blank signed cheque was given to the plaintiff and all the other particulars in the cheque were entered by the plaintiff. There was no case for the defendant at that point of time that figure Rs.10,000/- put by him has been altered to Rs.40,000/- by the plaintiff. This was a case set up by the defendant at the time of evidence, which surprisingly found favour with the trial court. It is well settled that any amount of evidence which has no foundation in pleadings cannot be looked into. 15. The learned counsel appearing for the respondent then pointed out that in the light of the contention taken by the defendant it was for the plaintiff to seek expert opinion regarding the cheque and having failed to do so, the suit should fail. 16. It is difficult to accept the above contention. First -:8:- A.S.No.540 of 1998 of all, there is no pleading in the written statement that alteration was made by the plaintiff. Then if the defendant had such a case that there was alteration, it is for him to establish the said fact by seeking expert's opinion. 17. Even going by the contentions of the defendant, the amount of Rs.10,000/- was repaid with interest. One fails to understand, after having repaid the amount why no steps were taken by the defendant to get back the cheque or at least issue a stop memo to the bank concerned. He did nothing in the matter. Finally it is admitted by the defendant that he received the notice send by the plaintiff. His case is that as he was laid up he was unable to reply to the same. There is no evidence to show that he was laid up. The result is that on the evidence it would appear that after receiving notice he kept silent. 18. It was overlooking all the above facts brought out in evidence merely by looking through a magnifying glass, the court below had come to the conclusion that the amount -:9:- A.S.No.540 of 1998 has been altered by the plaintiff. The court below was not justified in doing what it did. For the above reasons it is difficult to sustain the judgment and decree of the lower court. Accordingly this appeal is allowed, the impugned judgment and decree are set aside and a decree is passed in the following terms:- The plaintiff is granted a decree to realise a sum of Rs.40,000/- with 6% interest from the date of suit till realisation personally from the defendant and from his assets. There will be no order as to costs. P.BHAVADASAN JUDGE kkj