IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 RSA.No. 1154 of 2008() ---------------------- A.S. No. 15 of 2005 OF THE SUB COURT, KOYILANDY O.S. NO. 166 OF 2000 OF MUNSIFF COURT, KOYILANDY APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- KUTTILAKKANDY BALAKRISHNAN, S/O.KUNHIKANARAN, "SWASTHAM", PANTHALAYANI AMSOM DESOM, KOYILANDY TALUK. BY ADV. SRI.T.A.RAMADASAN RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- P.V.NARAYANAN, S/O. KELU KURUP, RETIRED POST MASTER, RESIDING AT SAROJ NIVAS, VIYYUR AMSOM, MANNAMANGALAM DESOM, KOYILANDY TALUK. ADV. SRI. A. RANJITH NARAYANAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 1154 of 2008 * * * * * * * * * * * * * * * * * * Dated : 05-01-2009 JUDGMENT The defendant in O.S. 166 of 2008 on the file of the Munsiff's Court, Quilandy is the appellant in this Second Appeal. The said suit was one for realisation of a sum of Rs. 75,000/- due under ExtA1 cheque dated 27-7-2000 which was allegedly dishonoured by the drawee bank as evidenced by Ext.A2 dishonour memo as well as the testimony of the Bank Manager examined as P.W.2. The plaintiff alleged that the suit amount represented the loan taken by the defendant from the plaintiff. 2. The appellant resisted the suit contending inter alia that Ext.A1 cheuque was a fabricated document and that it was not executed by the appellant and that the cheque was stolen from his custody by one Muraleedharan. Both the courts below held that the cheque was duly executed by the appellant in discharge of the R.S.A. NO. 1154 of 2008 -:2:- debt borrowed from the plaintiff and that his contention that the cheque was stolen from his custody was not believable for the reason he had not lodged any complaint either before the police or before the drawee bank. The appellant had also not countermanded the payment by sending a stop memo to the bank. The courts below have concurrently decreed the suit. Hence, the Second Appeal. 3. The following are the questions of law formulated in the memorandum of Second Appeal:- i) Whether the courts below were correct in law in not holding that the signature seen in the alleged Ext.A1 cheque is not that of the Appellant and it is only a forged one. ii)Whether the courts below were correct in not sending the disputed cheque to an expert opinion regarding the genuineness and correctness of the disputed signature and entires therein when there is allegation of theft of the cheque. iii) Whether appreciation of the courts below on oral and documentary evidence are correct in law ? 4. The learned counsel appearing for the appellant re-iterated the contentions of the defendant as canvassed before the courts below. He also submitted that there was R.S.A. NO. 1154 of 2008 -:3:- nothing to show that the appellant was the account holder of Ext.A1 cheque. 5. I am afraid that I cannot agree with the above submissions. It was not suggested to any of the witnesses including the bank manager that Ext.A1 cheque was not pertaining to the account held by the appellant with the drawee bank. Moreover, such defence was not taken before the courts below. This contention, in fact cuts at the root of his main defence that Ext.A1 cheque leaf was stolen from his custody and fabricated and got dishonoured. The findings recorded by the courts below are pure findings of fact. No question of law, much less, any substantial question of law arises in this Second Appeal. The questions of law formulated in the memorandum of appeal do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. I heard the learned counsel appearing for the respondent/plaintiff as well. The appellant is given time till 31-3-2009 to deposit the decree amount before the trial R.S.A. NO. 1154 of 2008 -:4:- court failing which it shall be open to the respondent to continue the execution proceedings without any further notice to the appellant. Dated this the 5th day of January 2008. V. RAMKUMAR, (JUDGE) ani.