IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 AS.No. 503 of 2000() -------------------- OS.435/1994 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT(S): DEFENDANT -------------- DR. P.T. SOSAMMA, AGED 55 YEARS, D/O. THOMAS, RESIDING AT SHARON HOUSE, VILAVATTAM DESOM, RAMAVARMAPURAM, THRISSUR TALUK. BY ADV. SRI.V.SANTHARAM RESPONDENT(S): PLAINTIFF --------------- P. MURALIDHARAN, AGED 44 YEARS, S/O. R. PADMANABHAN NAIR, RESIDING AT PEEZHERI HOUSE, TRIKKUR VILLAGE AND DESOM, MUKUNDAPURAM TALUK. ADV. SRI.P.K.ANIL THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- A.S. 503 of 2000 -------------------------------------- Dated: AUGUST 25, 2009 JUDGMENT The defendant is the appellant. The suit was one for realisation of money based on a dishonoured cheque. The lower court decreed the suit. The defendant challenges the said decree and judgment in this appeal. 2. The case of the respondent/plaintiff as detailed in the plaint and as testified by him as PW.1 before the lower court in brief is this: The defendant borrowed Rs.21000/- from him and to discharge the said liability, she issued a cheque Ext.A1 on April 30, 1992 drawn on the Thrissur Branch of the State Bank of Travancore. The date of the cheque was 4.7.1992. When the cheque was presented for encashment, it was returned for want of sufficiency of funds in the account of the defendant in the bank. After issuing notice the plaintiff filed C.C.No.239 of 1993 before the Judicial First Class Magistrate Court, Thrissur, under sec.138 of the Negotiable Instruments Act. The defendant was convicted in that criminal case which was confirmed in appeal and in revision as evidenced by Exts.A7, A9 and A10, certified copies A.S. 503 of 2000 2 of the judgments in C.C.239/1999 of Judicial First Class Magistrate Court, Thrissur, in Crl.A. 190/1993 of the Sessions Court, Thrissur, and the order in Crl.R.P. 710/1997 of the High Court of Kerala respectively. The plaintiff prayed for a decree for recovery of the amount with interest at the rate of 12% per annum. 3. The defendant in her written statement contended and testified as DW.1 that no amount is due from the defendant to the plaintiff, that it was under compulsion that she issued a blank signed cheque to the plaintiff which was misused by the plaintiff. According to the defendant she has introduced the plaintiff to one Raju Samuel who was an agent sending people to the Gulf countries, that the said Raju Samuel collected amount from the plaintiff and thereafter absconded and that the plaintiff with the help of police compelled the defendant to execute a blank signed cheque which was misused by the plaintiff. 4. The plaintiff was examined as PW.1. He produced Exts.A1 to A10 before the lower court. The defendant was examined as DW.1 and on her side Exts.B1 to B3 were marked. A.S. 503 of 2000 3 On an appreciation of evidence the lower court decreed the suit as prayed for. The defendant has now come up in appeal. 5. The only question which arises for consideration is whether the decree and judgment of the lower court can be sustained. 6. The defendant admitted the execution of the original of the cheque Ext.A1. Her case is that she has issued the cheque under threat and coercion. Apart from the interested testimony of DW.1, there is no evidence to show that Ext.A1 cheque was obtained from her forcibly. No steps were taken by the defendant to examine any witnesses to prove the same. That apart, she was convicted in the criminal case as evidenced by Exts.A7, A9 and A10. Therefore, in my view, the lower court is perfectly justified in accepting the evidence of PW.1 and rejecting the evidence of DW.1 and coming to the conclusion that the defendant borrowed Rs.21000/- from the plaintiff and issued the original of the cheque Ext.A1. That being so, the judgment and decree of the lower court has to be confirmed. 7. There is another aspect. The plaintiff claimed interest A.S. 503 of 2000 4 at the rate of 12% from 4.7.1992, the date of the cheque Ext.A1. As regards the rate of interest, there is no agreement between the parties. Therefore I feel that the plaintiff is entitled to interest only at the rate of 6% per annum from 4.7.1992 till the date of decree and also future interest thereafter at the same rate till realisation. In the result, the appeal is allowed in part. The decree passed by the lower court is modified to the effect that the plaintiff is granted a decree for recovery of Rs.21000/- from the defendant and her assets with interest at the rate of 6% per annum from 4.7.1992 till the date of decree and thereafter at the same rate till realisation. In the circumstances the parties shall bear their own costs. P.Q. BARKATH ALI, JUDGE mt/- A.S. 503 of 2000 5