IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 RSA.No. 514 of 2011() --------------------- (O.S.NO. 81 OF 2000 OF MUNSIFF- MAGISTRATE COURT, MANNARKKAD) A.S.NO.122/2003 OF SUB COURT, OTTAPALAM APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- JIJO JOSEPH, S/O.POOVATHINGAL JOSEPH, KOOKKAMPALAYAM, AGALI AMSOM, THAVALAM P.O., MANNARKKAD, PALAKKAD DISTRICT. BY ADV. SRI.ROY CHACKO RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- P.PRABHAVATHY, W/O.N.RAJENDRAN, KARUVADATH, AAGALI AMSOM, THAVALAM P.O., MANNARKKAD, PALAKKAD DISTRICT-678001. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA NO.514 OF 2011 ............................................ DATED THIS THE 10th DAY OF JUNE, 2011 JUDGMENT Defendant in O.S.81 of 2000 on the file of Munsiff Court, Mannarkad is the appellant. Plaintiff is the respondent. Respondent instituted the suit for realisation of Rs.25,000/- contending that appellant borrowed the amount and agreed to pay interest at the rate of 12% within two months and when the amount was demanded, appellant issued Ext.A1 cheque drawn in his account maintained in Canara Bank and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds and in spite of Ext.A3 notice demanding the amount, it was not paid and hence she is entitled to realise the amount. Appellant resisted the suit contending that he did not borrow any amount and did not issue any cheque and the cheque was lost from him and based on the cheque, respondent is not entitled to the decree sought for. 2. Before the learned Munsiff, apart from the respondent as PW1, her father in law was examined as PW2. Two more RSA 514/2011 2 witnesses were examined as Pws 3 and 4 and Exts.A1 to A5 were marked. In addition, Ext.X1 to X3 records were called for and marked. On the side of appellant, she was examined as DW1. Learned Munsiff on the evidence found that appellant had borrowed the amount as claimed by respondent and issued Ext.A1 cheque towards its repayment, which was dishonoured and hence granted a decree for realisation of the amount with 6% interest from the date of the suit. Appellant challenged the judgment before Sub Court, Ottapalam in A.S.No.122 of 2003. Learned Sub Judge, on reappreciation of the evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that when appellant had specifically denied the execution of Ext.A1 cheque and the signature seen therein, without the evidence of an expert, the courts below should not have compared the signature and accepted the signature in Ext.A1 as that of appellant and should not have granted the decree based on such unsatisfactory evidence. Learned counsel also argued that even the original RSA 514/2011 3 transaction has not been proved as according to respondent, the amount allegedly paid to the appellant was the money received from her husband from his business and it was contradicted by the father in law PW2 as according to him, the money belongs to the respondent. Learned counsel also pointed out that the evidence of PW3 is that amount was asked by appellant from the father in law PW2 and on a proper appreciation of the evidence, courts below should not have believed the evidence of Pws 1 to 3 to uphold the case of the respondent. Learned counsel therefore vehemently argued that the decree is unsustainable. 4. Learned counsel made available the pleadings as well as copy of the depositions of the witnesses. Though the suit is based on Ext.A1 dishonoured cheque, the suit is for realisation of the money paid to the appellant. Ext.A1 cheque was allegedly issued by the appellant towards repayment of the amount borrowed when demanded. Therefore, even if the execution of Ext.A1 cheque as such was not proved, if the original transaction whereunder the appellant borrowed the amount from respondent is proved, respondent is definitely entitled to a decree for realisation of the amount. The question is whether the original RSA 514/2011 4 transaction has been proved. Ext.A1 even if accepted would only support the original transaction and it by itself will not create a liability. 5. Learned Munsiff and learned Sub Judge on appreciation of the evidence of Pws 1 to 3 accepted the case of respondent and did not rely on the evidence of DW1. The argument of the learned counsel is that appreciation of the evidence was perverse and exercising the powers under Section 100 of Code of Civil Procedure, when appreciation of evidence is perverse, this court is to interfere with the factual findings of the courts below on reappreciation of the evidence. In view of this submission, the deposition of the witnesses have also been gone through. On going through the evidence, I cannot agree with the submission of the learned counsel that appreciation of the evidence was perverse. Even though much was argued about the discrepancy with regard to the source of money paid by the respondent and received by the appellant, as rightly found by the first appellate court, it is not very material. The evidence of the respondent is that the amount paid to the appellant was received from her husband. True, the evidence of her father in law PW2 is that it is RSA 514/2011 5 her own money. The father in law may not know from where the money which was paid by the daughter in law came from. Therefore, when the father in law deposed that the money was that of the respondent it cannot be termed as a material discrepancy. It is more when the wife got the money from her husband, it is the money of the wife. Hence on that ground, it is not possible to hold that appreciation of evidence is perverse. Similarly is the case with regard to appreciation of evidence of PW3. The evidence of Pws 1 to 3 is credible. It establishes the original transaction. Though appellant explained the dishonoured cheque with the respondent alleging that it was lost from him, the explanation is not believable. Though appellant denied the execution of the cheque, which according to the respondent was issued towards its repayment, on the evidence it cannot be said that findings of the courts below is not in accordance with the evidence. In such circumstances, I find no substantial question of law involved in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk