IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 AS.No. 100 of 2000(E) ------------------------- (AGAINST THE JUDGMENT AND DECREE IN O.S.1148/95 OF I ADDL.SUB JUDGE, THIRUVANANTHAPURAM.) ....................... APPELLANT(S)/DEFENDANT: ------------------------------- P. VISWANATHAN, SON OF PADMANABHAN, RESIDING AT 'POOJA', T.C.31/279(1), CHACKAI, PETTAH-PO. THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SRI.R.T.PRADEEP RESPONDENT(S)/PLAINTIFF: ----------------------------- K.V. GEORGE, SON OF K.J. VARGHESE, CHRISTIAN, RESIDING AT T.C.29/245, 'SREECHAKRAM', PETTAH-PO, THIRUVANANTHAPURAM. ADV. SRI.PIRAPPANCODE V.S.SUDHIR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 100 OF 2000 = = = = = = = = = = = = = = = Dated this the 4th day of June, 2010. J U D G M E N T This appeal is preferred against the judgment and decree of the First Additional Subordinate Judge, Thiruvananthapuram in O.S.1148/95. The suit is one for realisation of the amount. The court below granted a decree in favour of the plaintiff and it is against that decision the defendant has come up in appeal. 2. Heard the learned counsel for both the sides. The brief facts necessary for the disposal of the appeal are as stated as follows. It is the case of the plaintiff that the defendant had borrowed a sum of Rs.47,000/- and had issued a cheque later for Rs.47,000/- which when presented for encashment returned with the endorsement of insufficiency of funds. Therefore he had sent a notice for which a reply A.S. 100 OF 2000 -2- raising false contentions had been sent. Therefore the suit for realisation of the amount. 3. The defendant on the other hand would contend he has no monetary transaction with the plaintiff and his son who married from another community was given protection by the plaintiff and the said son had taken some of the valuables and also a cheque and it had been utilized for the purpose of harming the defendant. Or in other words the plaintiff is not entitled to any relief. 4. The defendant has not admitted the loan transaction. The defendant had only admitted a signature in the blank cheque. He also complaints of theft of the cheque by his son. So if execution of the cheque is properly proved then most probably one may be able to draw the A.S. 100 OF 2000 -3- presumption u/Ss.138 and 139 of the N.I.Act that the cheque is issued towards the discharge of the liability. There was an attempt made by the plaintiff to prosecute the defendant u/s 138 but the said complaint has ended in acquittal u/s 256(1) Cr.P.C. and further action has not been done on the same. So in order to entitle the person to get a decree the transactions have to be proved and the two methodologies adopted are one is regarding the borrowl of the amount and the other is issuance of the cheque towards the discharge of the liability after six months. So far as the advancement of the amount is concerned it is stated by the plaintiff that plaintiff and defendant are neighbours and along with PW2 the defendant came and wanted some amount during the festival season of Onam 1994. The amount was given after two days. According A.S. 100 OF 2000 -4- to him he had also withdrawn money from his account as well as he had borrowed or taken money from his sister by way of a cheque and had encashed it and given it to the defendant. So it is alleged that there are convincing documents. It should have been produced to show the truthfulness of the case of the plaintiff. But strangely the plaintiff did not move his little finger to prove those aspects, most probably under the impression that the cheque would be sufficient to discharge his burden. 5. The next is regarding the cheque. I had perused the cheque and it is seen that the body is in one ink and the signature is with another ink. The defendant has only admitted the signature in the blank cheque and that too not issued in favour of the plaintiff but had in his house which had been stolen away by the son. So A.S. 100 OF 2000 -5- there is a necessity for a proper proof regarding the execution of the cheque as well. The presumptions would arise only when documents are proved. I think the materials made available are not sufficient to come to a conclusion positively and therefore in the interest of justice I am inclined to grant an opportunity to the plaintiff to adduce additional evidence and if necessary produce additional documents in support of his contention. Needless to say, defendant can also have rebuttable evidence and documents to substantiate his contentions. Therefore the judgment and decree of the trial court are set aside and the matter is remitted back to the trial court with a direction to permit both the plaintiff and defendant to produce documentary as well as oral evidence in support of their A.S. 100 OF 2000 -6- respective contentions and then dispose of the matter in accordance with law. The security furnished by the defendant shall remain in tact till a final decision is taken in the matter. Parties are directed to appear before the Court below on 20.7.2010. Parties are also directed to bear their respective costs in the appeal. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge. A.S. 100 OF 2000 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 100 OF 2000 = = = = = = = = = = = J U D G M E N T 4th June, 2010.