IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 SA.No. 228 of 1997 AGAINST THE JUDGMENT AND DECREE DATED 18.6.1996 IN AS.90/1995 OF THE SUBORDINATE JUDGE'S COURT OF THALASSERI. OS.NO.227/1994 OF THE MUNSIFF'S COURT, KANNUR APPELLANT: RESPONDENT: PLAINTIFF: ------------------ P.ARAVINDAKSHAN, S/O.KUNHIKANNAN, AGED 37, BHARANI MANDIRAM, EDAKKAD AMSOM, KIZHUNNA, KANNUR. BY ADVS. M/S.V.R.KESAVA KAIMAL N.M.MADHU, DEVIKA RANI KAIMAL RESPONDENT: APPELLANT: DEFENDANT: -------------------- M.VASUDEVAN, S/O.KALLIYANI, AGED 38 BUSINESS, SHYAMA NIVAS, ODATHUL PEEDIKA P.O., MAMBA, KANNUR. BY ADV. SRI.GRASHIOUS KURIAKOSE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2008, THE COURT ON 15/02/2008 DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- S.A. NO. 228 OF 1997 B -------------------------------------------- Dated this the 15th February, 2008 JUDGMENT The appellant is the plaintiff in O.S.No.227 of 1994, on the file of the Court of the Munsiff of Kannur. The suit was filed for realisation of money. The trial court decreed the suit for a sum of Rs.11,870/- with interest at 6% per annum from the date of suit till realisation. On appeal by the defendant as A.S.No.90 of 1995, Sub Court, Thalassery, the Appellate Court allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit. 2. The case of the plaintiff is that he was conducting business in lottery agency under the name and style “Mini Lottery”. On 10.4.1993, an amount of Rs.10,000/- was borrowed by the defendant, who was a bus operator. By way of security, the defendant issued Ext.A1 cheque dated 13.5.1993, for Rs.10,000/-, on the date of borrowal, that is, on 10.4.1993. The agreement was to repay the loan amount within two months, failing which the cheque could be presented for collection. On the failure of the defendant to repay the loan amount, the plaintiff presented the cheque for collection. The cheque was dishonoured. On 28.5.1993, Ext.A4 lawyer notice was sent to the defendant requesting him to pay the amount with S.A. NO.228 OF 1997 :: 2 :: interest. The notice was returned as unclaimed. 3. The defendant contested the suit contending that he did not borrow a sum of Rs.10,000/- from the plaintiff on 13.5.1993. On that day, he was not a bus operator as well, he having sold the bus before that date. There was no occasion for borrowing money from the plaintiff. The case of the defendant is that he borrowed a sum of Rs.10,000/- from the plaintiff in 1990 undertaking to repay the amount in instalments at the rate of Rs.100/- per day and that the entire amount was repaid. At the time of borrowal of the amount, the defendant issued a singed blank cheque as security for the payment of the loan amount. According to the defendant, no amount is payable to the plaintiff. The cheque was presented with ulterior motives. If at all any amount is payable, the suit is filed beyond the period of limitation. 4. Before the trial court, the plaintiff was examined as PW1 and the defendant was examined as DW1 and Exts.A1 to A5 were marked on the side of the plaintiff. The trial court held that the suit being on the basis of a dishonoured cheque, the presumption is always in favour of the plaintiff that the cheque was issued in discharge of a liability. The trial court held that the defendant has not adduced proper evidence to rebut this presumption. The evidence of DW1 was not believed by the trial S.A. NO.228 OF 1997 :: 3 :: court. A contention was put forward by the defendant that there is material alteration in the cheque as there is correction of the date. The trial court held that the defendant failed to prove that the entries in the cheque were altered after the issue of the same. Having found that the defendant has no case that he had discharged the loan which was taken from the plaintiff in the year 1993, the trial court held that the discharge pleaded in the written statement cannot have any bearing on the present transaction. The contention that the suit is barred by limitation was also negatived by the trial court on the finding that the said contention was raised on the basis that the loan was taken in the year 1990. Having found that the loan was taken in the year 1993 and the cheque was issued in 1993, the suit was not barred by limitation, the suit having been filed in the year 1994. 5. The Appellate Court noticed that the case of the plaintiff in the plaint is that the amount was borrowed on 10.4.1993 and the cheque dated 13.5.1993 was issued on the date of borrowal. However, the plaintiff stated in evidence that the date of borrowal of the amount was on 13.5.1993. The contention that it was only a mistake committed at the time of adducing evidence was not accepted by the court below. It was noticed that in the plaint itself there is correction regarding the date of borrowal and it was corrected as 10.4.1993. Copy of the plaint shows the S.A. NO.228 OF 1997 :: 4 :: date of borrowal as 13.5.1993. It was held that this discrepancy is not on account of any mistake. The admission in the plaint that the cheque was given as security for the loan amount was also taken note of by the court below. The plaint allegation is that the agreement was to repay the loan amount within two months from 10.4.1993. If the cheque was given as security, naturally the cheque could have been presented only after 10.6.1993, since two months' time was granted for repayment. Then normally, the cheque would not bear a date as 13.5.1993. The cheque was presented on 13.5.1993 and it was returned on 17.5.1993. The court below noticed that there is correction in the date column in Ext.A1 cheque. The year '93' is written in a different ink and the date 13/5/ is in another ink and in the place where the year is written a correction is seen made and that correction is not authenticated. The plaintiff admitted in his evidence as PW1 that there is correction of the date in the cheque. He admitted that the accounts kept in his business establishment would not show that a sum of Rs.10,000/- was paid to the defendant. His explanation is that the amount does not belong to the business establishment. He admitted that no accounts are maintained by him. He also admitted that he does not know whether the date as well as the year were written with the same pen. He stated that he does not know whether the defendant has sold the bus in 1991. It is further stated by him that the loan was granted as the amount was required by the defendant for S.A. NO.228 OF 1997 :: 5 :: running his bus service. The suggestion made to PW1 is that the year '93' was inserted by him to make it appear that the transaction was in 1993 and that the suit was filed within time. The court below considered the evidence as a whole and held that the over-writing in the cheque, creates suspicion about the genuineness of Ext.A1 cheque. It was held that the evidence of the plaintiff cannot be relied on as there is material contradiction between his evidence and the averments in the plaint. The court below held that the plaintiff has not established that the amount was borrowed by the defendant on 10.4.1993 as stated in the plaint. It was held that Ext.A1 cheque is not supported by consideration. The findings of the court below are arrived at on the basis of appreciation of evidence. In the light of the admitted facts and in view of the material alteration in Ext.A1 cheque, the court below was not inclined to accept the case of the plaintiff that a sum of Rs.10,000/- was brrowed either on 10.4.1993 or on 13.5.1993. On the basis of the findings arrived at on appreciation of evidence, the court below held that Ext.A1 cheque is not supported by consideration. Normally, such a finding of fact cannot be interfered with in Second Appeal. 6. Learned counsel for the appellant contended that there is no averment in the written statement about the material alteration and therefore, the court below was not justified in accepting the contention of S.A. NO.228 OF 1997 :: 6 :: the defendant. I am not inclined to accept this contention raised by the appellant. There is no ground to interfere with the well considered judgment of the court below. The Second Appeal lacks merit and it is accordingly dismissed. No order as to costs. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- S.A.NO. 228 OF 1997 B JUDGMENT 15th February, 2008 -------------------------------------------