IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 RSA.No. 556 of 2011() --------------------- AS.339/2008 of DISTRICT COURT, THRISSUR OS.581/2006 of PRL.SUB COURT,THRISSUR .................... APPELLANT/PLAINTIFF --------------------------------------- UNNIKRISHNAN, AGED 64, S/O.PUTHUR VEETTIL P.S.AYYAPPAN, THAIKATTUSSERY DESOM, EDAKUNNY VILLAGE, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): DEFENDANT ------------------------ DAMODHARAN, S/O.RAMAN VAIDHYAR, CHERUSSERY HOUSE, VALLACHIRA VILLAGE, THRISSUR TALUK NOW RESIDING IN THE ADDRESS C/O.THANKARAJ, NANDILATH VALAPPIL HOUSE, ARMBUR P.O., KANJANY VIA., THRISSUR-680620. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA NO.556 OF 2011 ............................................ DATED THIS THE 15th DAY OF JUNE, 2011 JUDGMENT Plaintiff in O.S.581 of 2006 on the file of Principal Sub Court, Thrissur is the appellant. Defendant is the respondent. Appellant instituted the suit for realisation of Rs.1,10,000/- with interest @ 12% alleging that respondent and his deceased son Subhash came to his house on 12.2.2006 and borrowed Rs.1,25,000/- and as security, Subhash issued Ext.A1 cheque drawn in his account maintained in HDFC Bank dated 12.2.2006 and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds and in spite of Ext.A4 notice demanding the amount, respondent did not pay the amount and therefore he is entitled to realise the amount. It is also contended that out of the amount borrowed, Rs.15,000/- was repaid and the balance is due. Respondent denied the transaction and contended that he did not borrow any amount and did not furnish any security and his son did not issue any cheque as security and he is not liable to pay any amount. RSA 556/2011 2 2. Learned Sub Judge, on the evidence of Pws 1 and 2, DW1, Exts.A1 to A9 and B1 to B11 dismissed the suit holding that appellant did not establish that respondent and his son borrowed Rs.1,25,000/- and the amount claimed is not due. Appellant challenged the judgment before District Court, Thrissur in A.S.339 of 2008. Learned District Judge, on reappreciation of the evidence, confirmed the findings of the learned Sub Judge and dismissed the appeal. 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 both the courts below did not properly appreciate the evidence. Learned counsel would argue that when Ext.A1 cheque was drawn in the account maintained by the son of the respondent and no explanation was offered by the respondent, as to the custody of the cheque with the appellant, courts below should have found that case of the appellant that it was issued as security is correct and the case set up by appellant should have been accepted. Learned counsel further argued that though in the plaint it is admitted that appellant is having joint business with the respondent and his son, there is no allegation that the amount RSA 556/2011 3 was borrowed for that business and therefore courts below were not justified in holding that there was discrepancy in the case set up in Ext.A4 notice and the plaint. Learned counsel also argued that the fact that PW2 was facing disciplinary proceedings is not a ground to disbelieve his evidence with regard to the fact he had witnessed and as evidence of PW2 corroborates the evidence of PW1 that respondent and his son came to the house of the appellant and borrowed Rs.1,25,000/-, agreeing to repay the same and the son of the respondent issued Ext.A1 cheque as security for the loan, a decree should have been granted. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though respondent has not explained the custody of Ext.A1 cheque with the appellant, Ext.A1 cheque was not issued in any account maintained by the respondent. It is a cheque drawn in the account of his son who subsequently committed suicide. A father may not be in a position to explain the custody of the cheque leaf in an account in the name of the son. Therefore for the non explanation of the custody of the cheque with the appellant, it cannot be said that the case of appellant that Ext.A1 cheque was RSA 556/2011 4 issued as security towards the loan is to be accepted. 6. The whole question depends upon the evidence regarding the borrowal allegedly made by respondent and his son on 12.2.2006. Apart from the appellant, PW2 was also examined. Learned Sub Judge and learned District Judge appreciated the evidence and found that their evidence is not believable. Though learned counsel tried to persuade me to hold otherwise, on going through the depositions of the witnesses made available by the learned counsel, I do not find any reason to interfere with that finding of fact. If respondent along with his son had approached the appellant and borrowed Rs.1,25,000/- and the appellant had insisted for a security, a security would have been obtained from the respondent also and appellant would not have been satisfied with the security of a cheque issued by the son alone. When the entire facts are appreciated in the proper perspective, the view taken by courts below is perfectly legal and correct and warrants no interference. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk