IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 AS.No. 49 of 2002(D) -------------------------- OS.797/1994 of II ADDL.SUB COURT,KOZHIKODE .......................................... APPELLANT/DEFENDANT: ------------------------------------- U.P. NISHAD, AGED 37 YEARS, W/O. P. VALSARAJ, CHIRAKKAL HOUSE, BILATHIKULAM ROAD, KACHERI AMSOM AND DESOM OF KOZHIKODE TALUK. BY ADV. SRI. A. V. M. SALAHUDHEEN RESPONDENT/PLAINTIFF: ------------------------------------- K.K. SASIDHARAN, AGED 32 YEARS, S/O. APPU, KODAMOOCHIKKUNNU HOUSE, P.O. NELLIKODE, KOZHIKODE-16, NELLIKODE AMSOM AND DESOM, KOZHIKODE TALUK. R1 BY ADV. SRI. P. V. KUNHIKRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22 /12 /2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DST P.BHAVADASAN, J. ------------------------------------- AS No.49 of 2002 ------------------------------------- Dated this the 22nd day of December 2011 Judgment The defendant in OS No.797/94, who suffered a money decree at the hands of the Sub Court, Kozhikode, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, the defendant who is closely known to him, borrowed a sum of Rs.30,000/- on 11.8.1994, agreeing to return the amount within three months. She is alleged to have given Ext.A2 cheque dated 19.10.1994 for repayment of the amount. Since the amount was not paid, the cheque was presented for encashment. But, the cheque bounced with the endorsement “Account Closed”. The notice sent by the plaintiff to the defendant did not invoke any response and the amount remained unpaid and therefore, the suit was laid. AS 49/02 2 3. The defendant resisted the suit by pointing out that the plaintiff was a total stranger to her and in fact, he was a close associate of her husband. who was on inimical terms with her. According to her, her husband has married another woman and is staying with her somewhere else. She would further say that she made arrangements to sell her property and when her husband came to know about this, he came over there and demanded half the sale price and thereafter, by manhandling and threatening her, he managed to obtain certain signed blank cheques and papers from her. The defendant pointed out that it was utilising one of those blank cheques that the present suit has been laid. She categorically stated that she has not borrowed any amount from the plaintiff and that no amount is due from her to the plaintiff. On the basis of these contentions, she prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised. Evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A3 from the AS 49/02 3 side of the plaintiff. The defendant had DW1 examined and Exts.B1 and B2 marked. 5. On an evaluation of the evidence in the case, the trial court came to the conclusion that the plaintiff has succeeded in establishing his case and decreed the suit. The said judgment and decree are assailed in this appeal. 6. The learned counsel for the appellant pointed out that the trial court was not justified in decreeing the suit when it was not found that the cheque is not supported by consideration. There is nothing to show, according to the learned counsel that an amount of Rs.30,000/- was in fact, paid by the plaintiff to the defendant and that she had issued the cheque in discharge of the debt. The evidence is clear to the effect that her husband had obtained signed blank cheques and papers from her and he has used one of such cheques to institute the suit. The learned counsel went on to point out that the court below has omitted to note certain vital aspects disclosed in the evidence and has wrongly cast the burden on the defendant. Accordingly, it is AS 49/02 4 contended that the judgment and decree of the court below are unsustainable in law. 7. Per contra, the learned counsel for the respondent pointed out that the court below has considered the evidence in the proper perspective and has come to the right conclusion. The learned counsel drew attention of this court to the fact that even as admitted by the defendant, she discharged the debt due from her husband in relation to another transaction and that shows that the claim now made by her that she was forced by her husband to issue blank cheques, cannot be correct. It is also pointed out that except for her interested testimony, there is no evidence to show that the couple was at loggerheads. The learned counsel further pointed out that it is significant to notice that though the notice was served on the defendant, she chose not to reply. It was two years after the suit was instituted that the written statement is filed by her, setting up the present case. It is also pointed out that one cannot omit to note that no complaint whatsoever was preferred by the AS 49/02 5 defendant against her husband for the alleged acts committed by him and no action was taken by her to see that the signed blank cheques were not misused by him. He would contend that the present story set up by the defendant is only to escape from her liability and cannot be countenanced. Accordingly, it is pointed out that no grounds are made out warranting interference with the judgment and decree of the court below and the appeal is only to be dismissed. 8. The question that arises for consideration is whether the court below was justified in coming to the conclusion that Ext.A2 is supported by consideration and was in fact, issued by the defendant. The plaintiff examined himself as PW1. 9. PW2 speaks about the handing over of the cash to the defendant. However, PW2 says that he did not see the handing over of the cheque and that he was told by the plaintiff that a cheque has been given by the defendant to him towards discharge of the liability. The evidence of AS 49/02 6 PW2, to a good extent, corroborates the evidence of PW1. It is significant to notice that the signature on the cheque is admitted. The story put forward by the defendant is that she was forced by her husband to give signed blank cheques to him. Going by her version, the couple was at loggerheads and the husband was living with another woman elsewhere. Here also, except for the interested testimony of the defendant, no evidence whatsoever is produced to show that her husband is living separately or that he is staying with another woman. Normally, in such circumstances, one would have expected the defendant at least to approach the court for maintenance from her husband. No such proceedings seem to have been taken by the defendant so far. Further, even as admitted by her, one of the cheques, is according to her in her written statement, was given to one Abdurahiman by her husband after affixing her signature. She had paid the amount and got the cheque back which is produced as Ext.B1. This fact has been taken note of by the court below to point out that AS 49/02 7 she took upon herself the task of discharging the liabilities incurred by her husband. At the time of evidence, she changed her version. Whatever that be, the fact remains that the signature on the cheque is admitted and there is nothing to show that the husband of the defendant had obtained it from her under threat and coercion. It is here that one has to notice that going by the available evidence, it seems that notice was served on the defendant. She would deny having received the same, but taking aid of the presumptions in Section 114 of the Evidence Act and Section 26 of the Kerala Interpretation and General Clauses Act, it is for the defendant to prove that she had not received any notice. There was no attempt from her side to establish that except for a bare denial of having received the same. If one is to presume that notice was given to her and if as a matter of fact, she did not receive any amount, she would have obviously responded to it. It is also significant to note that even after her husband had forced her to execute certain documents, she had not AS 49/02 8 taken any legal steps against her husband nor did she inform the bank by issuing a stop memo against the signed blank cheques, alleged to be obtained from her, being executed. It was the above facts which made the lower court to come to the conclusion that the case set up by the plaintiff is true. It is a possible and probable view based on evidence on record. It is not shown that the findings are either perverse or unwarranted by the evidence on record. If that be so, interference with the judgment and decree is uncalled for. The appeal is without any merits and it is accordingly dismissed. P.Bhavadasan, Judge sta AS 49/02 9