IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 AS.No. 339 of 1996(B) --------------------- OS.112/1994 of SUB COURT, PALA .................... APPELLANT/DEFENDANT: --------------------------- MATHEW, S/O VARKEY, MUTHANATTU HOUSE, YENDAYAR KARA, KOOTTICKAL VILLAGE. BY ADV. SRI.T.P.VARGHESE,PHILIP.T.VARGHESE RESPONDENT/PLAINTIFF: ---------------------------- K.C.THOMAS, S/O CHACKO, KAKKAPARA HOUSE, MANIMALA KARA, MANIMALA VILLAGE. ADV. SRI.N.GOVINDAN NAIR SRI.P.THOMAS JOSEPH, S.K.THAMPI FOR SRI.K.UNNIKRISHNA KURUP THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.SURENDRA MOHAN, J. ------------------------------------------- A.S.No.339 of 1996 ------------------------------------------- Dated this the 4th day of August, 2009 JUDGMENT The defendant in O.S.No.112 of 1994 of the Sub Court, Pala has filed this appeal challenging the judgment and decree dated 22.7.1995 passed against him, allowing the plaintiff to realise an amount of Rs.25,000/- with interest thereon at the rate of 12% per annum. The plaintiff is the respondent in the appeal. 2. As per the plaint, the defendant had borrowed an amount of Rs.25,000/- from the plaintiff and had issued Ext.A1 cheque dated 6.2.1989 drawn on the Meenachil East Co-operative Bank Ltd. Yendayar Branch, towards the repayment of the said amount. The plaintiff presented the cheque for encashment. But, the cheque was returned unpaid and dishonoured with the endorsement, “not arranged for”. The dishonour of the cheque was duly intimated to the defendant and the plaintiff demanded payment of the cheque amount personally as well as by the issue of a registered notice. However, the amount was not paid. Therefore, the plaintiff prayed for recovery of the amount of Rs.25,000/- from the defendant as well as from his assets, with A.S.No.339 of 1996 2 interest thereon at the rate of 18% per annum. 3. The suit was contested by the defendant. He admitted the issue of Ext.A1 cheque. But, according to him, no amount is due or payable by him to the plaintiff. According to him, his father Mathai Varkey, Muthanattu House had three acres of land at Mundappallil, Yendayar. One Xavier of Valiyathupallickal House entered into an agreement with the defendant's father for purchase of the said property and paid an amount of Rs.50,000/- as advance, in September 1986. But, the purchaser failed to raise the balance amount of sale consideration within the agreed period and therefore, the agreement worked itself out. The said Xavier demanded return of the advance amount of Rs.50,000/- that had been paid. But the amount was not paid. Therefore, he complained to the Deputy Superintendent of Police. 4. The Deputy Superintendent of Police summoned both parties to his office and the parties agreed to settle the dispute by paying an amount of Rs.25,000/-. For the said amount of Rs.25,000/-, a cheque was issued by the defendant and the same was handed over to the plaintiff at the Police Station. Therefore, the defendant contended that no money was due to the plaintiff A.S.No.339 of 1996 3 under Ext.A1 cheque. It is further contended that subsequently, an amount of Rs.10,000/- was paid in cash by Sri.Baby George, brother of the defendant towards the amount covered by the cheque and the plaintiff issued a receipt for the said payment, which is Ext.B1. The defendant then requested for some time to pay the balance amount. It is contended by the defendant that there was no financial transaction between Sri.Baby George and the plaintiff. 5. When the defendant was not able to pay the balance amount of Rs.15,000/-, the plaintiff gave a complaint to the Sub Inspector of Police, Mundakkayam who summoned the defendant. At that time, one Sri.Thomas Kalladan intervened at the instance of the defendant and on the insistance of the plaintiff, Sri.Thomas Kalladan issued a cheque for Rs.15,000/- to the plaintiff. Thus, the matter was settled and the plaintiff received the entire amount of Rs.25,000/-. However, nobody pressed for return of the original cheque for Rs.25,000/- given to the defendant. 6. Later, the said cheque was dishonoured and a registered notice was issued by the plaintiff to Thomas Kalladan demanding payment of Rs.15,000/- with A.S.No.339 of 1996 4 interest. Sri.Thomas Kalladan issued a reply explaining the circumstances under which the cheque was given and contending that no amount was due from him to the plaintiff. The plaintiff immediately filed a criminal complaint for the dishonour of the cheque against Sri.Thomas Kalladan, as C.C.No.152 of 1982 of the Judicial First Class Magistrate's Court, Kanjirappally. Pending the said case, the entire amount was paid by the defendant and the criminal complaint was dismissed as settled out of Court. The compromise petition and the order in the said case are marked as Exts.B2 and B3 by the court below. Thereafter, misusing the cheque given by the defendant, the present suit has been filed, is the allegation of the defendant. 7. The suit was tried by the court below on the above pleadings, after framing necessary issues. The evidence in the case consists of the oral testimonies of PW1 and DWs.1 to 3 as well as the documentary evidence Exts.A1, A2 and B1 to B4. 8. The court below considered the case of the rival parties and the evidence on record and came to the conclusion that there was no evidence in the case to show that the defendant had paid the amount covered by Ext.A1 cheque. The court below found A.S.No.339 of 1996 5 that on the one hand, the defendant claimed that no money was due under the disputed cheque while at the same time contending that the amount due had been paid. Therefore, the case of the defendant was contradictory. Since there was no evidence to show that the amount covered by Ext.A1 cheque was paid by the defendant, the court below decreed the suit with interest at the rate of 12% per annum. The said judgment and decree are challenged in this appeal. 9. I have heard the counsel for the contesting parties. I have also perused the records of the case in detail. 10. The point that arises for consideration is: “Whether any amount is due from the defendant to the plaintiff, as claimed?” 11. Ext.A1 is the cheque issued by the defendant to the plaintiff for an amount of Rs.25,000/-. Ext.A2 memo shows that the cheque was dishonoured for paucity of funds in the bank account of the defendant. The execution of the cheque is admitted by the defendant. The case of the defendant is that the cheque was not issued in discharge of a debt. The defendant also contends that the cheque was issued in the office of the Deputy A.S.No.339 of 1996 6 Superintendent of Police. It is the specific case of the defendant that an amount of Rs.50,000/- had been received by his father as advance under an agreement to sell an item of property that belonged to his father. The sale did not materialise for default on the part of the prospective purchaser. Though he demanded for return of the advance amount, the same was not paid. Therefore, he complained to the Deputy Superintendent of Police who summoned the parties to his office. Since his father was not in a position to go, the defendant is alleged to have gone to the office of the Deputy Superintendent of Police. There, the matter was settled among the parties and Ext.A1 cheque was issued by the defendant and was handed over to the plaintiff. 12. A perusal of Ext.A1 cheque shows that it has been filled in with the same pen and the signature also has been affixed using the very same pen. There are no signs of any insertion or interpolation and all the entries appear to be in one and the same handwriting. The same is issued in the name of 'K.C.Thomas', the plaintiff. If the cheque had been issued in favour of the prospective purchaser who had entered into an agreement with the father of the defendant for purchase of his property, there is A.S.No.339 of 1996 7 no reason why the cheque was drawn in favour of the plaintiff. Therefore, the said story appears to be highly improbable and artificial. As rightly noticed by the court below, there is also no evidence available in proof of the said contention. The non- examination of Xavier who was the alleged purchaser is also fatal to the case of the defendant, in the circumstances noted above. If the amount of Rs.25,000/- was agreed to be paid in settlement of the claim for return of the advance amount made by Xavier, the case of the defendant that no amount was due under Ext.A1 cheque also is baseless. Or in other words, the case of the defendant appears to be that though the cheque was issued in discharge of a debt, it was not issued in discharge of a debt due to the plaintiff. If that be so, on this aspect also, there is absolutely no evidence. 13. It is the further case of the defendant that when pressed for payment, his brother Baby George, DW3 had paid an amount of Rs.10,000/- and that Ext.B1 receipt was issued by the plaintiff for such payment. However, as rightly found by the court below, there is nothing on record to show that the payment made by DW3 was towards discharge of the amount covered by A.S.No.339 of 1996 8 Ext.A1 cheque. Therefore, the above contention is also not sustainable. 14. It is the further case of the defendant that the plaintiff had submitted a complaint to the Sub Inspector of Police, Mundakkayam in respect of the nonpayment of the balance amount of Rs.15,000/- remaining unpaid after crediting the alleged payment of Rs.10,000/- made by Sri.Baby George. When the defendant was summoned to the Police Station, it is alleged that one Thomas Kalladan, DW2 had issued a cheque for Rs.15,000/-. However, the cheque was dishonoured and C.C.No.152 of 1989 was instituted by the plaintiff against Sri.Thomas Kalladan. Subsequently, according to the defendant, the entire amount was paid by him and the case was compromised, as evidenced by Exts.B2 and B3. Again, it is to be noted that there is nothing to show that the amount due from Thomas Kalladan was paid by the defendant or that the said amount also was part of the amount covered by Ext.A1. In the absence of any evidence to establish the above vital link connecting the said transactions with Ext.A1 cheque and the amount covered by it, it cannot be held that the amounts paid in A.S.No.339 of 1996 9 discharge of the said debts were towards the discharge of the amount covered by Ext.A1 cheque. Therefore, the court below was right in rejecting the case of the defendant and decreeing the suit. I do not find any ground to take a different view of the matter. I therefore, confirm the judgment and decree of the court below. For the foregoing reasons, the appeal fails and is dismissed confirming the judgment and decree dated 22.7.1995 of the Sub Court, Pala in O.S.No.112 of 1994. No costs. K.SURENDRA MOHAN Judge css/ A.S.No.339 of 1996 10 K.SURENDRA MOHAN JUDGE ------------------------------------ AS.No.339 of 1996 ------------------------------------ JUDGMENT 4.8.2009