IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 AS.No. 18 of 2000(D) -------------------- OS.113/1996 of SUB COURT, PALA .................... APPELLANT: PLAINTIFF ------------------------------------ V.K.SOMASEKHARAN NAIR, KUTHIRAKALATHIL HOUSE THODANAL. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT: DEFENDANT -------------------------------------------- R. MURALIDHARAN NAIR, ACCOUNTANT, SYNDICATE BANK LTD. NOW WORKING AT KOTTAYAM BRANCH OF THE SYNDICATE BANK. ADV. SRI.K.REGHU KOTTAPPURAM SMT.URSULA FRANCIS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05.10.2009 THE COURT ON 05/10/2009 DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 18 of 2000 ---------------------------------------- Dated this the 5th day of October, 2009 JUDGMENT The plaintiff in O.S. No.113/1996 on the file of the Sub court, Pala is the appellant herein. The suit was partly decreed allowing the plaintiff to realise an amount of Rs. 30,000/- with interest at the rate of 12% from the date of suit till realisation with costs. Aggrieved by the decree and judgment the plaintiff in the suit has filed this appeal to the extent of non-suiting the plaintiff for the balance amount claimed in the plaint. The parties hereinafter referred to as plaintiff and defendant 2. It is the plaintiffs case that the defendant borrowed an amount of Rs. 40,000/- on 30.3.1991 and handed over a cheque on the same date drawn on Udayanapuram branch of the Syndicate Bank as security , Subsequently on 30.4.1991 the defendant also borrowed a further sum of Rs. 20,000/- and handed over another cheque as security. The defendant also agreed that both amounts will be returned with 18% interest. The plaintiff also averred that the defendant has paid only Rs. 4,000/- towards interest due. In spite of repeated requests the defendant did not repay the said amount. Hence the suit. 3. In the written statement filed by the defendant it is contended interalia that he availed a loan of Rs.20,000/- and 10,000/- from the A.S. No.18 of 2000 -2- plaintiff on 30.3.1991 and on 30.4.1991 respectively, that as requested by the plaintiff, the defendant had to entrust two signed blank cheques for availing loan and the plaintiff concocted and fabricated the said signed blank cheques putting an amount of 40,000/- and 20,000/- respectively and therefore there is material alteration in the cheques. The defendant also contended that he agreed to pay interest at the rate of Rs. 12% alone, that he was regularly paying interest and that after the receipt of the lawyer's notice he repaid Rs. 10,000/- with interest till 30.5.1992. The borrowal of amount on 30.3.1991 and 30.4.1991 are not denied by the defendant but only disputed the quantum of amount. According to the defendant the amount borrowed by himself is only Rs. 20,000/- and 10,000/- and Ext.A1 and A2 cheques were issued for the said amounts on the said dates. He also disputed the rate of interest and according to him it is not 18% but only 12%. According to the defendant the cheques were filled up by the plaintiff and produced before the trial court and there were material alterations. The defendant further contended that he has written the name of the plaintiff in one cheque and signed it,and the remaining portion of the cheque was filed up by the plaintiff. 4. Before the trial court PWs 1 and 2 were examined and Exts.A1 to A5 were marked on the side of the plaintiff. .DW1 and DW2 were examined on the side of the defendant. No documentary evidence was adduced on the side of the defendant. A.S. No.18 of 2000 -3- 5. Exts.A1 and A2 are the two cheques issued by the defendant and Ext.A3 is the letter issued by him undertaking to pay the dues within the stipulated period. Since the amount was not repaid on the agreed date also, the plaintiff issued Advocate notice demanding Rs. 60,000/- plus interest at the rate of 18%. Ext.A4 and A5 are the copy of Advocate notice and acknowledgment receipt respectively. The trial court held that in Ext.A1 and A2 cheques the name of the plaintiff is written by the defendant without writing the amounts in figures and words. The trial court also found that in Ext.A2 the figure “(1)” is corrected as two “(2)”. and that the defendant has raised another contention in the written statement that after the receipt of Ext.A4 notice he has paid Rs. 10,000/- ; but he has not produced any document to prove the said payment. The trial court held that it is quite improbable to believe that after getting the notice , the defendant has paid Rs.10,000/- without getting any receipt for the same. So long as he has not denied his signatures in the two cheques and the two cheques are admittedly issued by him is the important circumstance to be taken into consideration. Moreover the defendant has not substantiated his case that the amounts shown in the cheques are not the correct amounts which he borrowed from the plaintiff. In the written statement he has stated that one Suresh Manickathu has witnessed the transaction and he was present while executing Exts. A1 and A2 cheques . But the said Suresh Manickathu was not examined before the A.S. No.18 of 2000 -4- court below to prove the nature of real transaction. DW2 deposed that even though the defendant repaid Rs.10,000/- plus interest , he does not know the details of the transaction between the plaintiff and the defendant. If the defence set up by him is true there is no difficulty for the defendant to substantiate his case by examining the said Suresh Manickathu who is admittedly an eyewitness to the transaction. So there is no basis in saying that the defendant has received only Rs. 20,000/- and 10,000/- from the plaintiff and issued two cheques . 6. The defendant has a definite case that the amounts shown in the cheques and the dates were filled up by the plaintiff without the consent and knowledge of the defendant. The writings in the cheques would indicate that it was written by using two different pens. On the basis of the said contention the trial court held that since the cheques were issued as the securities for the borrowal of amounts and there are alterations in the cheques and the difference in the ink used for filling the entire contents in the cheques would indicate that the defendant's case is more probable than the plaintiff's case. The trial court also concluded that the defendant borrowed only Rs. 10,000/- and 20,000/- from the plaintiff and issued cheques as securities for the same, that the plaintiff did not present the cheques in any bank for encashment ,that the said conduct of the plaintiff would show that the cheques were only received as securities for the amounts and that the correction in the figures in Ext.A2 creates A.S. No.18 of 2000 -5- doubt about the actual amount borrowed by the defendant. 7. I do not find any correction in the figure in Ext.A2 which will creates doubt about the actual amount borrowed by the defendant. The amounts was written not only in figures but also in words as well So long as there is no correction in the portion of the amounts in words the trial court ought not have held that there is correction in the figures which creates doubt about the actual amount borrowed by the defendant. 8. In this case the plaint is proceeded on the basis of Exst.A1 and A2 cheques which are issued as securities for the amounts borrowed by the defendant. The suit is filed for realisation of money due from the defendants based on the original cause of action. The suit is not based on the two said cheques. The cheques were produced and relied on by the plaintiff to support his case about the quantum of money borrowed by the defendant. In such circumstances and in the light of the defence setup by the defendant admitting the execution of the cheques, the burden is on the defendant to prove that the entries seen on the cheques are fabricated as contended by himself . Having failed to discharge the burden this is a case where the presumption under Section 114 of the Evidence Act and 118A of the Negotiable Instruments Act is attracted. I do not know under what circumstances there is change of pens and difference in ink. I am of the view that the same may happen for several casual reasons and the writings are with different inks or pens does not mean that there is A.S. No.18 of 2000 -6- material alteration. But in this case the plaintiff as PW1 has also explained as to how two different pens and inks happened to be used by the defendant. In the circumstances there is no reason to disbelieve the case of the plaintiff and to believe the defendant who has stated that he had only borrowed Rs.30,000/- Therefore the plaintiff is entitled to get the amount claimed in the plaint (ie Rs.60,000). In the result, the appeal is allowed. The judgment and decree is modified . The amount to be returned by the defendant is modified as Rs. 60,000/- at the same rate of interest granted by the trial court. The appeal stands allowed with costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S. No.18 of 2000 ---------------------------- JUDGMENT 5th October, 2009