Asokan v. Padmaja

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW FRIDAY, THE 1ST DAY OF JULY 2016/10TH ASHADHA, 1938 RSA.No. 208 of 2010 (G) -----------------------AGAINST THE JUDGMENT AND DECREE IN AS 158/2007 OF II ADDITIONAL DISTRICT COURT,THIRUVANANTHAPURAM DATED 30-09-2009 AGAINST THE JUDGMENT I AND DECREE N OS 1079/2006 OF II ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM APPELLANT/RESPONDENT/DEFENDANT: -------------------------------------------------------- ASOKAN, ASOKA BHAVAN, AVIKADA JUNCTION, PRAVACHAMBALAM, NEMOM P.O., THIRUVANANTHAPURAM. BY ADVS.SRI.JAWAHAR JOSE SMT.CISSY JAWAHAR ## RESPONDENT/APPELLANT/PLAINTIFF: ------------------------------------------------------ PADMAJA, AGED 44 YEARS, W/O SREEKANTAN NAIR, PARAKOTTUKUNNATHU VEEDU, BHASI NAGAR, ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. ## BY ADV. SRI.PIRAPPANCODE V.S.SUDHEER THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-072016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: cms ## **K.ABRAHAM MATHEW J.** -------------------------------------------------------R.S.A.No.208 of 2010 -------------------------------------------------------Dated this the 1[st] July, 2016 ## **JUDGMENT** This appeal arises from a suit filed by the respondent against the appellant for recovery od money. The respondent alleged that the appellant borrowed from her Rs.70,000/- on 8.10.2003 and issued a cheque for the amount on 12.11.2003 and the cheque was returned dishonoured on presentation and in spite of demand by notice the appellant failed to discharge the debt. In the written statement the appellant denied the loan transaction and issuance of the cheque. According to him, the respondent got some work done by one Unni, a friend of the appellant and Unni who had received excess amount from the respondent for his work gave the cheque as a security to get a machine withheld by the respondent. The respondent had filed a complaint against the appellant alleging that he had committed the offence under Section 138 of the Negotiable Instruments Act. In ST No.286 of 2006 the appellant was acquitted. In the suit copies of the complaint in the criminal case, deposition of the respondent, deposition of the appellant and judgment were marked Exts B1, B2, B5 and B3 respectively. The trial court found that the cases set up by the respondent in the criminal case and the suit are entirely different, and accordingly, it dismissed the suit. The learned district judge took the view that the judgment in the criminal case should not have been marked in the suit and the trial R.S.A.No.208 of 2010 2 court went wrong in relying on it. He held that the execution of the cheque is admitted and there is a presumption under Section 118(a) of the Negotiable Instruments Act that the cheque is supported by consideration. He took the view that the discrepancy in the evidence of the respondent is not a proper ground to dismiss the suit. He also made adverse comment on the failure of the appellant to adduce direct evidence. Accordingly, he reversed the finding of the trial court and decreed the suit. 2. Heard the learned counsel on either side. 3. The first appellate court has a duty to re-appreciate the entire evidence. Unfortunately, in this case the district court did not even take notice of the contention that the cheque is not supported by consideration. It is observed in its judgment that the court below dismissed the suit solely on the basis of the contradictory statements given by the plaintiff in the suit and the criminal case with regard to the place of transaction. This observation is wrong. The trial court, in fact, also took into consideration some other evidence. 4. With regard to the execution of the cheque the only statement in the plaint is that the appellant “in discharge of the said debt issued her (respondent) a cheque on 6.11.2003......” There is no mention about the place at which the transaction took place, nor is there any whisper that the cheque was executed in the presence R.S.A.No.208 of 2010 3 of the respondent. In her examination-in-chief the respondent, who was examined as PW1, just reiterated the above statement in the plaint. Thus, in the evidence also the place at which the transaction took place is not mentioned. There is also no mention that the respondent saw the appellant executing the cheque. Still I will take it for granted that the respondent has not specifically denied the genuineness of the cheque since though his contention in the written statement is that it was a cheque issued to one Unni, there is no specific averment that it was a signed blank cheque the appellant issued to Unni. 5. It is necessary to examine the evidence of the respondent as to the loan transaction since the appellant has denied it. Under Section 118(a) of the Negotiable Instruments Act there is a presumption that the cheque is supported by consideration. In **Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay (AIR 1961 SC 1316)** the three judge bench of the Supreme Court held that it is not at all necessary for the drawer of an instrument to enter the witness box or to adduce direct evidence to rebut the presumption. He is entitled to rely on the facts and circumstances revealed in the evidence of the payee. He can also rebut the presumption on the basis of the probabilities in the case or presumptions. The same view has been taken in **M.S.Narayana** **Menon @ Mani v State of Kerala and another (AIR 2006 SC** R.S.A.No.208 of 2010 4 **3366)** So the learned district judge went wrong in holding that the failure of the appellant to enter the witness box is fatal. He should have considered the probabilities and the circumstances in the case and the facts brought out in the cross-examination of the respondent. 6. As noted above, the respondent had filed S.T.287 of 2006 on the basis of the very same cheque (Ext A1). There cannot be any doubt that the copies of the deposition of the witnesses examined in the criminal case should not have been marked. They could have been used only under Section 21 of the Evidence Act if they contained admission or for contradiction under Section 145 of the Evidence Act. But it was not for those purposes they were marked. The trial court went wrong in taking notice of the averments or statements in those documents to hold that the appellant's case is not believable. The judgment in the criminal case also was irrelevant. 7. In the plaint it is stated that the cause of action arose at Manakad village. In the cross-examination the respondent (PW1) stated that the transaction took place in the house of PW3 Manoj. But she admitted that in the criminal case her version was that the transaction took place at her own house. This admission should have been taken notice of by the learned district judge. It was not at all necessary to use any of the above documents to confront the R.S.A.No.208 of 2010 5 witness as the contradiction was admitted by the witness. The learned district judge accept the explanation of the witness that it was just a mistake. The nature of the fact in respect of which the statements were made is such that it cannot brushed aside as a slip of the tongue or innocent mistake. 8. According to the respondent (PW1) the loan transaction took place at the residence of PW3 Manoj. PW2, who is her husband, also deposed to it. The explanation given by her is that it was for convenience the money was paid at the residence of PW3. But what was the inconvenience to pay the money at her residence is not known. There is no explanation for it. How later the cheque also happened to be issued at the house of PW3 as alleged by PW1 and PW3 ? There is no explanation. 9. The amount said to have been borrowed by the appellant is Rs.70,000/-. But in the cross-examination she deposed that the amount paid was Rs.50,000/- and it was paid at her residence. Immediately she added that Rs.50,000/- is not part of the amount lent to the appellant on 8.10.2003. But she has no case that she had any other transaction with the appellant. The statement cannot be brushed aside as a mistake. 10. PW3 Manoj deposed that the transaction took place at his house at Kalippankulam. The definite case of the appellant is that PW3 has no such residence. It was brought out in the evidence of R.S.A.No.208 of 2010 6 PW3 that his building was constructed five years ago. But for five years his building has not been assigned a number, which is not believable. He admitted that there is no evidence to show that he was residing at Kalippankulam. But in the re-examination he was made to say that his 'gas connection' shows that he was residing there. It is not known how can there be such records when the building was not even assigned a number by the local authority. I have no doubt that he is not a reliable man. 11. The amount was allegedly paid on 8.10.2003, on which date the respondent did not take any document to evidence the transaction, which is improbable. It is also to be noted that the respondent does not claim that the amount was paid for interest. It is unbelievable that she would advance a loan of Rs.70,000/- free of interest without even taking a document to evidence the transaction. 12. The respondent produced Ext A9 statement of bank account of her husband PW2 Sreekandan Nair. The opening balance is nil as on 30.11.2000. There was no transaction till 11.12.2003, when he borrowed Rs.2,00,000/-. It is doubtful that the respondent had the capacity to advance a loan of Rs.70,000/-. It is seen from Ext A8 property tax assessment index sheet that the PW2 was issued a permit to construct a building on 8.4.2003. The transaction alleged in this suit took place on 8.10.2003. It is highly improbable R.S.A.No.208 of 2010 7 that the respondent would advance a loan of Rs.70,000/- when her house was being constructed and she had no money in her bank account. 13. The facts discussed above are sufficient to rebut the presumption available under Section 118(a) of the Negotiable Instruments Act. The respondent failed to prove that she lent Rs.70,000/- to the appellant. The district judge went wrong in decreeing the suit. It is liable to be set aside. In the result, this appeal is allowed. The decree of the first appellate court is set aside. The suit is dismissed with costs in this court as well as in the courts below. cms Sd/- **K.ABRAHAM MATHEW JUDGE** /True copy/ P.S.to Judge