IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 RSA.No. 658 of 2011() --------------------- AS.213/2009 of I ADDL. DISTRICT COURT, KOLLAM OS.174/1999 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANT/1ST RESPONDENT/PLAINTIFF ---------------------------------------------------------------- PHILIP,S/O.CHACKO, MALIEKKAL PUTHEN VEEDU, MULAYARACHAL, CHERIYA VELINALLOOR, VELINALOOR VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT BY ADV. SRI.JOHNSON GOMEZ RESPONDENT: APPELLANTS/2ND RESPONDENT/DEFENDANTS ------------------------------------------------------------------------------------------- 1. MARIA BEEVI, D/O.ABDUL VAHEED, NAZEEMA MANZIL, THEMPANVILA, CHENKOOR MURI VELINALLOOR VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT 2. NAZEEMA BEEVI, D/O.ABDUL VHEED, NAZEEMA MANZIL, THEMPANVILA, CHENKOOR MURI VELINALLOOR VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT 3. JAMAL MUHAMMED SHAJAHAN, NAZEEMA MANZIL, THEMPANVILA, CHENKOOR MURI VELINALLOOR VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT 4. ABDUL RAHIM HUSSAIN, IDAVELICKAL VEEDU,PAKALKURI, PAKALKURI P.O.,PALLICKAL.PIN.695 604 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 658 OF 2011 =========================== Dated this the 9th day of August,2011 JUDGMENT Plaintiff in O.S.174/1999 on the file of Munsiff Court, Kottarakara is the appellant. Respondents are the defendants. Suit was instituted for realisation of Rs.24,750/- with interest at 12% per annum contending that on 9.7.1998 respondents borrowed the said amount and executed Ext.A1 promissory note agreeing to repay the same with interest at 12% per annum on demand and inspite of demand, it was not repaid. Respondents resisted the suit contending that they did not borrow any amount and did not execute the promissory note and therefore they are not liable to pay the amount. They also contended that Abdul Vaheed, father of respondents 1 and 2 had some business transactions with the appellant and on RSA 658/2011 2 a final settlement, appellant agreed to pay Rs.10,850/- to Abdul Vaheed. But he failed to pay the amount. When Abdul Vaheed demanded the amount appellant threatened him. Appellant had a political influence among police and public. On that influence police harassed Abdul Vaheed and he was constrained to file a Writ Petition before this Court on 1.7.1998 against the Police. Accepting the submission of the Government pleader that police have no intention to arrest Abdul Vaheed, the O.P. was disposed. On 8.7.1999 Sub Inspector of Police, Pooyappally Police Station arrested Abdul Vaheed and took him in custody. When respondents approached the police to get him released, they were forced to execute a document. But it was not executed on receipt of any consideration. It was executed at the police station under duress, coercion and therefore appellant is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 and 2, Dws.1 and 2, and Exts.A1 to A6 and B1 to B4 RSA 658/2011 3 granted a decree finding that respondents received Rs.24,750/-and executed Ext.A1 promissory note agreeing to repay the same on demand. Respondents challenged the judgment before the District Court, Kollam in A.S.213/2009. Learned Additional District Judge on reappreciation of the evidence set aside the decree finding that execution of Ext.A1 promissory note was not proved and dismissed the suit. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. 4. The argument of the learned counsel is that learned Additional District Judge did not properly appreciate the evidence and there is no material contradiction in the evidence of Pws.1 and 2 and the evidence of Pws. 1 and 2 should have been accepted and the first appellate court should not have been interfered with the decree granted by the trial court. Learned counsel made available copies of Ext.A1 as well as the depositions of the witnesses. RSA 658/2011 4 5. On hearing the learned counsel and going through the evidence on record, I do not find any substantial question of law involved in the appeal. 6. Suit is based on Ext.A1 promissory note alleging that respondents together received Rs.24,750/- on 9.7.1998 and executed Ext.A1 promissory note agreeing to repay the same on demand and inspite of demand the amount was not paid. Respondents denied the execution and contended that it was got executed by threat and coercion from the police. Learned Additional District Judge on reappreciation of the evidence of Pws.1 and 2 found that Ext.A1 promissory note was not executed as claimed by the appellant. When respondents are denying execution of Ext.A1 and receipt of the consideration, it is for the appellant to establish execution as well as passing of consideration. If the evidence of appellant as PW1 is to be accepted and respondents 1 and 2 approached the appellant along with Shajahan, husband of the third respondent for RSA 658/2011 5 money for the purpose of Shajahan to go abroad, appellant did not pay the amount and they again approached him and finally he agreed to pay the amount and Ext.A1 promissory note was written by PW2 in the house of Saji, a document writer though Saji was not in the house at that time. When PW1 was cross examined and asked whether the office of Saji is not at Pooyappally he denied it first. But when the question was repeated and it was suggested that his house is not at Veliyam as claimed by PW1 and at Pooyappally, PW1 did not deny that fact. In fact he did not give any answer. When PW2 was examined his case was that he had written Ext.A1 promissory note and it was written at the house of Varkey and his house is at Veliyam. PW1 has no case that the promissory note was written or the consideration thereunder was paid at the house of Varkey. Therefore as rightly found by the first appellate court, based on the evidence of Pws1 and 2 it cannot be found that respondents received Rs.24,750/- and executed Ext.A1 promissory note. RSA 658/2011 6 In such circumstances, the factual finding of the first appellate court which is in accordance with the evidence cannot be interfered. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006