IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 RSA.No. 365 of 2011 --------------------------------- AS.283/2009 of ADDL.DISTRICT COURT, KOTTAYAM OS.132/2008 of SUB COURT, PALA .................... APPELLANT/RESPONDENT/PLAINTIFF: VINU KURIAN, AGED 37 YEARS, MANNATHYKUZHYPARA VEEDU, ANDOOR KARA, ELACKAL VILLAGE, MEENACHIL TALUK, KOTTAYAM DIST. BY ADV. SRI.C.P.SAJI RESPONDENT/APPELLAT/DEFENDANT: LEENA MATHEW, AGED 35 YEARS, D/O JOHN MATHEW, KOCHUPARAMBIL, VAGAMON KARA, PEERUMEDU TALUK, NOW RESIDING AT KOCHUPARAMBIL, KADAPLAMATTOM P.O., ANDOOR KARA, ELAKKAD VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/03/2011, THE COURT ON THE SAME DAY DELVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.365 of 2011 --------------------------------------- JUDGMENT Plaintiff in O.S.No.132/2008 on the file of Sub Court, Pala is the appellant. Defendant is the respondent. Appellant instituted the suit seeking a decree for realisation of Rupees One lakh with interest allegedly borrowed by the respondent on 11.5.2006 by executing Exhibit A1 demand promissory note contending that in spite of Exhibit A3 notice demanding the amount, it was not paid. Respondent resisted the suit contending that he did not borrow any amount an did not execute Exhibit A1 promissory note. 2. Learned Sub Judge, on the evidence of the appellant as PW1 and attesting witness, seen in Exhibit A1, as PW2 and respondent as DW1 and Exhibits A1 to A6 and B1 to B3, granted a decree holding that execution of Exhibit A1 was proved and respondent borrowed the amount shown in Exhibit A1. Respondent challenged the judgment and decree before District Court, Kottayam in A.S.No.283/2009. Learned Additional District Judge, on re-appreciation of evidence, allowed the appeal and set aside the decree and judgment and dismissed the suit holding RSA 365/2011 2 that execution of Exhibit A1, which was denied by the respondent, was not proved. Second appeal is filed challenging the judgment. 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that first appellate court did not properly appreciate the evidence and though the trial court relied on the signature seen in Exhibit A6 to compare the signature seen in Exhibit A1, first appellate court did not consider the said signature while comparing the other signatures and found that there is difference in the signatures. Learned counsel also argued that even though trial court accepted the evidence of PW2, first appellate court brushed aside that evidence without properly considering the same. It is, therefore, argued that finding of the first appellate court is perverse and trial court judgment is to be restored. Learned counsel made available the copies of depositions of PWs 1 and 2 and DW1 and Exhibit A1. 5. On going through the evidence of PWs 1 and 2 and DW1, I cannot agree with the submission of the learned counsel that appreciation of evidence by the learned Additional District Judge RSA 365/2011 3 was perverse. Even if the evidence is to be appreciated afresh, the finding of the learned Additional District Judge can only be accepted. Added to this, respondent has denied execution of Exhibit A1. He has not even admitted the signature. Appellant had not sent Exhibit A1 to an expert to get the opinion and instead, sought to prove the signature by comparing the signatures of the respondent in Exhibits A5 and A6. Though learned Sub Judge accepted the evidence, first appellate court, on proper appreciation of evidence, found that there is no similarity in the signatures. When appellant did not aid the court by sending Exhibit A1 to an expert, he cannot have any grievance in comparing the signatures without the aid of the report of an expert. Factual finding cannot be interfered in the second appeal. Appeal is dismissed as no substantial question of law is involved. 16th March, 2011 (M.Sasidharan Nambiar, Judge) tkv