IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 AS.No. 441 of 2000() -------------------- OS.1272/1995 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT/PLAINTIFF --------------------------------- SHEELA.S., W/O.K.A.SURENDRAN KARAPPURATH HOUSE PAYYANAM PO, KANNARA THRISSUR BY ADV. SRI.P.VIJAYA BHANU RESPONDENT/DEFENDANT --------------------------------------- V.J.THOMAS, S/O.JOSEPH VALIYAPARAMBIL HOUSE CHERUMKUZHY, ASARIKAD PO THRISSUR TALUK ADV. SRI.D.ANIL KUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19.09.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.441 of 2000 ------------------------------------- Dated this the 19th day of September 2011 Judgment The plaintiff, who lost his suit for money is the appellant. 2. Claiming that two cheques issued by her for Rs.15,000/- and Rs.10,000/- dated 13.07.1993 and 04.08.1993, respectively were encashed by the defendant and thus having incurred a liability, he was bound to repay the amounts which he did not, inspite of repeated demands, the suit was laid. 3. The defendant resisted the suit by pointing out that two cheques which he encashed were towards settlement of the loan taken by the husband of the plaintiff from the defendant and that the defendant had not borrowed any amount from the plaintiff, as alleged in the plaint. He also claimed that more amounts were AS 441/00 2 due from the husband of the plaintiff and it was in order to escape from the said liability that the suit was laid. On the basis of the above contentions, he prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendant had DW1 examined. 5. The lower could took the view that prima facie, the issuance of a cheque means that it was towards the discharge of a debt and the plaintiff had the burden to show that the defendant had incurred a debt by receiving a cheque. Also taking note of the deficiency in the evidence of the plaintiff to prove her case, the lower court took the view that the suit was only to be dismissed and did so. Hence the appeal. AS 441/00 3 6. The learned counsel for the appellant pointed out that the lower court was not justified in dismissing the suit. He went on to point out that the presumption drawn by the lower court that the cheques were issued towards discharge of debt, is not attracted to the facts of the case. Since the cheque was not dishonoured, it was also pointed out that Section 139 of the Negotiable Instruments Act does not have any application to the facts of the case. The learned counsel drew the attention of this court to the reply notice sent by the defendant and contended that it was specifically alleged in the notice that the defendant had received amounts as loan from the plaintiff and that he had not repaid the same in spite of repeated demands. There was no specific averment in the reply notice to the effect that the two cheques received from the plaintiff were towards discharge of a debt due from the AS 441/00 4 husband of the plaintiff, but what was stated in the reply notice was only that a further sum of Rs.15,000/- was due from the husband of the plaintiff. Drawing attention to the written statement, it was pointed out that in the written statement, the amount due from the husband of the plaintiff was shown as Rs.10,000/-. The learned counsel also pointed out that it is significant to notice that even though the defendant has a case that the plaintiff's husband had borrowed amounts from the defendant, at no point of time, the defendant had made any demand for repayment of the amount. The plaintiff had adduced sufficient evidence to show that amounts had been received by the defendant by encashing cheques and the burden was on the defendant to show that it was towards discharge of a debt due from her husband. The evidence adduced by the defendant is far from satisfactory and he had no consistent case. The AS 441/00 5 learned counsel went on to point out that the trial court has not appreciated the evidence in the proper perspective and that has resulted in miscarriage of justice and a wrong decree being passed. 7. The learned counsel for the respondent, on the other hand, pointed out that the weakness of the defence case is not a ground to grant a decree in favour of the plaintiff. The evidence of PWs 1 and 2 read as a whole, show glaring inconsistencies which makes the case put forward by the plaintiff extremely doubtful. As far as the reply notice is concerned, the learned counsel pointed out that it is true that it has not been in so many words stated that the two cheques had been issued towards discharge of a debt, but it was stated that further amounts were due to him, which would mean that the plaintiff's husband was indebted to the defendant. The learned counsel also pointed out AS 441/00 6 that the lower court was justified in relying on the presumption that normally, issuance of a cheque is presumed to be in discharge of a debt. According to the learned counsel, the lower court has considered the entire evidence in considerable detail and the view taken by the lower court is a possible view. According to the learned counsel, even assuming a different view may be possible, it may not be proper for the appellate court to interfere with the findings of the trial court once it is found that it is a possible view. 8. The receipt of two cheques and their encashment by the defendant are admitted facts. While the plaintiff would say that the defendant had borrowed amounts from her, the defendant would contend that the husband of the plaintiff was indebted to him and it was in discharge of the loan due to him that the two cheques had been encashed. He would further state AS 441/00 7 that more amounts were due from the plaintiff's husband to him. 9. There is inconsistency in the amounts stated in the written statement as well as in the reply notice. In the reply notice, it is shown as Rs.15,000/- whereas in the written statement, the amount shown is Rs.10,000/-. The question is, whether that by itself is sufficient to draw a conclusion against the defendant. 10. As rightly pointed out by the learned counsel for the respondent, the burden is on the plaintiff to show that the cheques were issued for loan sought for by the defendant from the plaintiff. The defendant had a definite case that the cheques were issued towards discharge of a loan incurred by the husband of the plaintiff. The consistent case of the defendant is that it was the husband of the plaintiff who had borrowed amounts from him and more amounts were AS 441/00 8 due to him from the husband of the plaintiff. 11. One may now refer to the evidence of PWs 1 and 2. The evidence of PW1 is to the effect that amounts were sought for by the defendant from the husband of the plaintiff and he had asked her to issue cheques and she did so. The evidence of PW2, the husband of PW1, on the other hand, was that the defendant had sought for loan from the plaintiff and the plaintiff had asked PW2 whether he could lend amounts to the defendant. The evidence of PW1 is to the effect that at the time of giving the amount, she had insisted for 15% interest on the amount borrowed by the defendant. The evidence of PW2, on the other hand, is that no interest was specified by the plaintiff and that the defendant had voluntarily agreed to pay 15% interest. The evidence of PW1 is to the effect that her husband was not in the habit of lending any amount to AS 441/00 9 anybody. But PW2 has something else to say. He would say that he had extended loans to quite a few persons. The lower court has taken note of one clear instance where the plaintiff's husband had sued a person for amount said to have been due to him. The said amount was lent in the year 1988 and from the evidence, it is seen that a suit was laid in the same year for recovery of that amount. It appears that the said suit was dismissed for want of documentary evidence for the loan. The lower court has noticed that once the plaintiff was aware of the fact that the loan had to be supported by some documents in order to establish the claim, it is inconceivable that at a later stage, amounts would have been advanced without insisting for any documents whatsoever. The reasoning given by the lower court cannot be said to be perverse. It is a possible view. AS 441/00 10 12. The defendant has also specifically challenged the ficancial capacity of the plaintiff to extend loan to the defendant. This court is not forgetting the fact that the two cheques were encashed which would mean that there was Rs.25,000/- in her account. In fact, according to the plaintiff, there was much more amount in her account than the amounts covered by the two cheques. It is interesting to note that there was a suggestion to PW2 that PW1 his wife had asked him whether he had borrowed any amount from the defendant. The answer was in the affirmative though it was stated that the enquiry was made by PW1 in a light- hearted manner. It was the above facts taken along with other evidence which made the lower court to come to the conclusion that the plaintiff had failed to establish her case. True, there is want of evidence from the side of the defendant to prove his case. But AS 441/00 11 that, as already noticed, is not a ground to grant a decree in favour of the plaintiff. When both sides have adduced evidence, the case has to be decided on preponderance of probabilities. The court below on an evaluation of the evidence, has come to the conclusion that the plaintiff has miserably failed to establish her case that the defendant had borrowed amounts from her. The lower court has found that the case of the defendant is more probable. On an appreciation of the evidence, it could not be said that the findings are totally unjustifiable or perverse. It is a plausible view. If that be so, a different view is not possible and the appeal is only to be dismissed. I do so. There will be no order as to costs. P.Bhavadasan, Judge sta AS 441/00 12 AS 441/00 13