IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 SA.No. 15 of 2001(B) ------------------------------ AS.83/1996 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.80/1994 of MUNSIFF COURT,KAYAMKULAM .................... APPELLANT(S): APPELLANT/DEFENDANT ----------------------- M.A.ABDUL LATHEEF LEBBAH, THAIVADAKKATHIL VEEDU, THONNALLOOR MURI, PANDALAM. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.P.VISWAMBARAN RESPONDENT(S): RESPONDENT/PLAINTIFF ------------------------ *1. P.THANGALKUNJU, VAIDYAN VEETTIL, THEKKATHIL, NEAR M.S.M.HIGH SCHOOL, KAYAMKULAM MURI, KAYAMKULAM VILLAGE (DIED). 2. RUKHIA, VAIDYANVEETTIL THEKKETHIL, KAYAMKULAM MURI, KAYAMKULAM VILLAGE. 3. BASHEER , VAIDHYAN VEETTIL THEKKETHIL, KAYAMKULAM MURI, KAYAMKULAM VILLAGE. 4. SALIM , VAIDHYAN VEETTIL THEKKETHIL KAYAMKULAM MURI, KAYAMKULAM VILLAGE. 5. ASHRAFF, VAIDHYAN VEETTIL THEKKETHIL, KAYAMKULAM MURI, KAYAMKULAM VILLAGE. 6. SAMEER, VAIDHYAN VEETTIL, THEKKETHIL, KAYAMKULAM MURI, KAYAMKULAM VILLAGE. R2 TO R4 & R6 ADV. SRI.R.KRISHNA RAJ, SRI.A.SHANAVAS KHAN, SMT.K.P.NISHA . THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------- S.A No. 15 of 2001 -------------------------- Dated this the 10th June, 2010 J U D G M E N T Defendant, who suffered a decree at the hands of the trial court, and whose appeal was dismissed by the lower appellate court, is the appellant herein. Parties and facts are hereinafter referred to as they are available before the trial court. 2. Plaintiff filed the suit based on Ext.A1 cheque dated 1.1.1992. Defendant resisted the suit pointing out that the cheque was obtained by undue influence, threat, coercion etc. 3. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1. Exts. A1 to A4 were marked from the side of the plaintiff. D.Ws.1 and 2 were examined and Exts.B1 to B3 were marked from the side of the defendant. S.A No. 15 of 2001 2 4. On an appreciation of evidence, the trial court found that the claim of the plaintiff is proved and accordingly decreed the suit. 5. The defendant carried the matter in appeal as A.S No.83 of1996 before the District Court, Mavelikara. The lower appellate court on an independent evaluation of the evidence concurred with the findings of the trial court and dismissed the appeal. Hence the Second Appeal. 6. The following substantial questions of law raised for consideration in this appeal: “(a) Whether the failure to frame proper issues in the suit would render the judgment unsustainable. (b) Whether the procurement of a cheque under duress and fraud is sufficient in law to prove and enforce an antecedent contract. © Whether illegal gratification for procuring a Visa by unlawful means is legally permissible and entitled to be claimed back. (d) Whether the maxim that in a case of S.A No. 15 of 2001 3 equal culpability, the position of the defendant is better than that of plaintiff, is applicable to facts of the case.” 7. Learned counsel appearing for the appellant contended that the courts below have misdirected themselves in appreciating the evidence on record and have not considered the contentions of the defendant in detail. It was pointed out that the plaintiff had filed criminal complaint before the Magistrate court and that was concealed from the court. The courts below ought not to have brush aside the contentions of the defendant that the cheque was obtained under threat or coercion. 8. There is absolutely no merit in the above contention. The story put forward by the defendant was that on receipt of a letter saying that his son-in-law is sick, he rushed to the place with a blank cheque in his pocket. According to him, when he reached the S.A No. 15 of 2001 4 place, he was forced to execute the cheque. At once one may notice that the signature in Ext.A1 cheque is admitted. But the contention is that it is vitiated by undue influence, coercion etc. The plaintiff as P.W.1 had stated that he had given Rs.15,000/- to the defendant. The defendant had denied that he had offered any job to the son of the plaintiff. It was considered by both the courts below that two sons of the defendant were working abroad at the relevant time. Both the courts below found the story put forward by the defendant to be open to serious suspicion and the courts below found it hard to believe the version given by the defendant. The courts below for cogent reasons have also placed reliance on Exts.B2 and B3. It is found that D.W.2 is an interested person and his version cannot be relied on. The trial court has infact found that the very story that the defendant had rushed to the place hearing that his son-in-law was sick is patently false. Even otherwise, it is difficult to S.A No. 15 of 2001 5 accept the version given by the defendant. One fails to understand how the plaintiff and his men could have came to know that the defendant was keeping a cheque in his pocket so as to force him to issue it. It is also interesting to note that inspite of threat, coercion etc, under which the cheque was issued, the defendant did not feel it necessary to prefer any complaint before the appropriate authority. The version given by D.W.1 in not doing so is also not acceptable. While D.W.1 would say that D.W.2 asked him not to lodge a complaint, D.W.2 would say otherwise. The result was that both the courts below refused to believe that the cheque was issued under threat or coercion. 9. Therefore, it could be seen that both the courts below have appreciated the evidence in detail and have come to the conclusion that Ext.A1 cheque was infact executed by the defendant and handed over to the plaintiff. Findings are based on appreciation of evidence. Being pure findings on fact, no interference S.A No. 15 of 2001 6 is called for under Section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in this Second Appeal. This appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE sb.