Berny Francis v. Lintu Sabu

``` 2025:KER:25334 ``` ``` O.P.(C)Nos.1410 & 1595 of 2022 ``` ``` 1 ``` **==> picture [52 x 52] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 25[TH] DAY OF MARCH 2025 / 4TH CHAITHRA, 1947 OP(C) NO. 1410 OF 2022 ``` ``` AGAINST THE ORDER DATED 20.07.2022 IN I.A.NOS. 8 & 9 OF 2022 IN OS NO.190 OF 2017 OF THE II - ADDITIONAL SUB COURT,ERNAKULAM ``` ## **`PETITIONER/DEFENDANT:`** ``` BERNY FRANCIS, AGED 57 YEARS, S/O. FRANCIS KARIPPATT, KARIPPATT HOUSE, ANTONY KATTIKAREN LANE, KACHERIPADY, KOCHI, PIN - 682018 ``` ``` BY ADVS. SRI.K.T.THOMAS SRI.MATHEW BOB KURIAN ``` ## **`RESPONDENT/ADDL.2ND PLAINTIFF:`** ``` LINTU SABU, AGED 32 YEARS, D/O. LATE SABU VARGHESE, PANDIKUDI HOUSE, VENGOOR P.O, PERUMBAVOOR, ERNAKULAM, PIN - 683554 ``` ``` BY ADVS. SRI.GOPIKRISHNAN NAMBIAR M. SRI.K.JOHN MATHAI(J-212) ``` ``` 2 ``` **==> picture [52 x 52] intentionally omitted <==** **==> picture [77 x 7] intentionally omitted <==** **----- Start of picture text -----**<br> 2025:KER:25334<br>**----- End of picture text -----**<br> ## **`O.P.(C)Nos.1410 & 1595 of 2022`** ``` SRI.JOSON MANAVALAN(J-526) SRI.KURYAN THOMAS(K/131/2003) SRI.PAULOSE C. ABRAHAM(MAH/58/2006) SRI.RAJA KANNAN(K/356/2008) ``` ``` THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25.03.2025, ALONG WITH OP(C).1595/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:25334 ``` ``` O.P.(C)Nos.1410 & 1595 of 2022 ``` ``` 3 ``` **==> picture [52 x 52] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 25[TH] DAY OF MARCH 2025 / 4TH CHAITHRA, 1947 ``` ``` OP(C) NO. 1595 OF 2022 ``` ``` AGAINST THE ORDER DATED 20.07.2022 IN I.A.NO.10 OF 2022 IN OS NO.190 OF 2017 OF THE II - ADDITIONAL SUB ``` ## **`COURT,ERNAKULAM`** ## **`PETITIONER/DEFENDANT:`** ``` BERNY FRANCIS, AGED 57 YEARS, S/O. FRANCIS KARIPPATT, KARIPPATT HOUSE, ANTONY KATTIKAREN LANE, KACHERIPADY, KOCHI, PIN - 682018 ``` ``` BY ADVS. SRI.K.T.THOMAS SRI.MATHEW BOB KURIAN ``` ## **`RESPONDENT/ADDL.2ND PLAINTIFF:`** ``` LINTU SABU, AGED 32 YEARS, D/O. LATE SABU VARGHESE, PANDIKUDI HOUSE, VENGOOR P.O, PERUMBAVOOR, ERNAKULAM, PIN – 683554 ``` ``` BY ADVS. SRI.GOPIKRISHNAN NAMBIAR M. ``` ``` THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25.03.2025, ALONG WITH OP(C).1410/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:25334 ``` ``` O.P.(C)Nos.1410 & 1595 of 2022 ``` ``` 4 ``` **==> picture [52 x 52] intentionally omitted <==** ## **please check the pages correction made K.BABU, J.** ------------------------------------------- ## O.P.(C) Nos.1410 & 1595 of 2022 --------------------------------------------Dated this the 25[th] day of March, 2025 ## **JUDGMENT** The challenge in these Original Petitions is to the orders in I.A.Nos.8,9 and 10 of 2022 in O.S.No.190/2017. The petitioner is the defendant in the suit. 2. The plaintiff instituted the Original Suit for realisation of money. The plaintiff pleaded that the defendant on 18.03.2017 borrowed a sum of Rs.10,00,000/-. The plaintiff stated that he paid the amount by way of issuing a cheque dated 18.03.2017 drawn on the Federal Bank Limited. According to the plaintiff, the defendant encashed the cheque and received the money from the Bank. The plaintiff further pleaded that the defendant executed a promissory note agreeing to repay the amount on the same day. 3. The defendant resisted the suit denying the entire transactions. The defendant pleaded that he did not ``` 2025:KER:25334 ``` ``` O.P.(C)Nos.1410 & 1595 of 2022 ``` ``` 5 ``` **==> picture [52 x 52] intentionally omitted <==** receive money from the plaintiff and that he did not execute a promissory note as pleaded. The defendant also pleaded that he had not received money by encashing the cheque dated 18.03.2017 as pleaded by the plaintiff. 4. Based on the rival contentions, the Trial Court framed the issues. The case was placed in the special list for trial. Both sides proceeded to lead evidence. 5. On the application of the plaintiff the promissory note was sent for expert examination. The report of expert examination on the promissory note revealed that the signature of the executant in the promissory note was that of the defendant. On the application of the defendant, cheque dated 18.03.2017 was produced before the Court on 13.06.2018. 6. During the course of proceedings the original plaintiff died. His daughter was impleaded as his legal representative. The husband of the plaintiff’s daughter gave evidence as PW1. The Manager of Federal Bank was examined as PW2. The defendant denied his signature in ``` 2025:KER:25334 ``` **==> picture [52 x 52] intentionally omitted <==** ## **`O.P.(C)Nos.1410 & 1595 of 2022`** ``` 6 ``` the cheque stated to have been used for encashing the amount on 18.03.2017. The Manager of Federal Bank (PW2) gave evidence that it was the defendant who presented the cheque in question on 18.03.2017 and encashed the same. While examined in cross, the Manager stated that he had identified the ID card produced by the person who presented the cheque. The defendant challenged the version given by PW2 by suggesting that he did not present the cheque before the Bank and the encashment of the cheque was by way of impersonation. Therefore, the defendant filed I.A.No. 9 of 2022 seeking to summon the Manager of the Bank to produce the following documents:- - (1) The register evidencing the issuance of cheque to the account of the plaintiff. (2) The bank records and transaction approval documents relating to the encashment of the cheque. - (3) The name and address details of the ``` 2025:KER:25334 ``` ``` O.P.(C)Nos.1410 & 1595 of 2022 ``` ``` 7 ``` **==> picture [52 x 52] intentionally omitted <==** Chief Manager of the Bank at the time of the disputed transaction. (4) The relevant guidelines of the Reserve Bank of India. 7. The defendant also filed I.A.No.8/2022 to recall the witness [PW2]. The defendant filed I.A.No.10/2022 under Section 45 of the Indian Evidence Act seeking to send the disputed cheque for expert examination. 8. The Trial Court rejected I.A.No.10/2022 holding that the application was belated. The relevant portion of the order is extracted below:- “6. The point:- It is to be noted that the disputed cheque bearing No.754251 was produced before this court on 13.06.2018. Thereafter, Ext.A1 promissory note was sent for scientific examination on 30.09.2021 and its report was received by this Court on 25.11.2021 stating that the defendant himself is the author of the signature appearing in it. More over, no reason is stated by the petitioner for not taking any steps to send the disputed cheque for scientific examination at that time or at any time before starting the trial. 7. It is clear that the petitioner comes with application, one after the other on an experimental basis and with intent to protract the proceedings. Hence, the petition stands dismissed with costs.” ``` 2025:KER:25334 ``` ``` O.P.(C)Nos.1410 & 1595 of 2022 ``` ``` 8 ``` **==> picture [52 x 52] intentionally omitted <==** 9. The application seeking production of documents as per I.A.No.9/2022 was also dismissed by the Trial Court holding that allowing the application will serve no purpose. 10. I have heard the learned counsel for the petitioner and the learned counsel for the respondent. 11. The learned counsel for the petitioner submitted that only at the time when the Manager was examined as PW2, the defendant got the opportunity to make a request for sending the cheque for expert examination. The learned counsel submitted that the Trial Court was not justified in not permitting the defendant to lead evidence to rebut the presumption that may be drawn in favour of the plaintiff. 12. The learned counsel for the respondent submitted that though the cheque was produced before the Court on 13.06.2018 and even after sending the promissory note for expert examination on the application of the plaintiff, the defendant did not care to make an ``` 2025:KER:25334 ``` ``` O.P.(C)Nos.1410 & 1595 of 2022 ``` ``` 9 ``` **==> picture [52 x 52] intentionally omitted <==** application to send the cheque for expert examination. 13. The learned counsel for the plaintiff further submitted that the attempt of the defendant is only to prolong the matter, that too at the fag end of the trial. 14. In the plaint the plaintiff had pleaded that the amount was given to the defendant by way of cheque dated 18.03.2017. This version was within the knowledge of the defendant from the very commencement of the proceedings before the Trial Court. The cheque in question was produced before the Court on the application of the defendant on 13.06.2018. He made the application only in 2022, after the examination of most of the witnesses. The defendant had an opportunity to request for expert examination of the cheque at the time when the case was posted for pre-trial steps. He did not make such a request at that stage though he was well aware of the pleading set up by the plaintiff that the amount was given by way of the cheque in question. It is also relevant to note that PW2, the Manager of Federal Bank had given evidence ``` 2025:KER:25334 ``` **==> picture [52 x 52] intentionally omitted <==** ## **`O.P.(C)Nos.1410 & 1595 of 2022`** ``` 10 ``` that the Bank verified the identity of the person who presented the cheque for encashment. 15. Adducing evidence in support of the defence is a valuable right and denial of that right would mean denial of a fair trial and such a request is to be allowed by the Trial Courts unless the Court thinks that the object of the defendant/accused is to delay the proceedings. ## 16. In **Francis v. Pradeep [2004 (2) KLT 1080]** , this Court held thus:- “The easiest way to protract proceedings under Section 138 of the N.I. Act and thus stultify the spirit and object of the provisions of Section 138 of the N.I. Act is to request that the cheque be sent to the expert. The soul of the provision will be lost if there is no expeditious enforcement. On account of pressure of work at the Forensic Science Laboratory, it is common knowledge that the expert will not be able to give the report within a period of three to four years. Convenient protraction can be achieved by requesting that the cheque be forwarded to the expert for examination. It is for the Trial Court to alertly consider the acceptability of such request and ensure that the cheque is forwarded to the expert only if satisfactory reasons are available”. (emphasis supplied). 17. The Trial Court has considered the pleadings set up by the parties. It carefully considered the acceptability of the request for sending the cheque for ``` 2025:KER:25334 ``` **==> picture [52 x 52] intentionally omitted <==** ## **`O.P.(C)Nos.1410 & 1595 of 2022`** ``` 11 ``` expert examination. The Court came to the conclusion that the attempt of the defendant was only to protract the matter. The Court took note of the fact that eventhough the cheque in question was produced before the Court on 13.06.2018, the defendant did not take steps to send the cheque for expert examination. 18. Therefore, this Court is of the view that the refusal on the part of the Trial Court to send the cheque for expert examination requires no interference by this Court exercising the jurisdiction under Article 227 of the Constitution of India. 19. However, this Court is of the view that if the defendant makes an application under Section 73 of the Indian Evidence Act/72 of the Bharatiya Sakshya Adhiniyam 2023, the Trial Court shall consider it in accordance with law. 20. If such a responsibility is undertaken, the Court shall follow the directions issued by this Court in ``` 2025:KER:25334 ``` ``` O.P.(C)Nos.1410 & 1595 of 2022 ``` ``` 12 ``` **==> picture [52 x 52] intentionally omitted <==** ## **S.Sivadas v. State of Kerala (MANU/KE/4089/2022)** , ## which reads thus:- “34. In a case where the Court is constrained to undertake the responsibility of comparing the disputed writing or signature with the admitted handwriting or signature, it shall make a careful study, if necessary, with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. The judgment shall contain the reasons for any conclusion based on a comparison of the handwriting/signature if the Court proceeds to record a finding thereon. Conclusions arrived based on a casual or routine glance, or perusal shall not be relied on to enter into a finding leading to the conviction of an accused.” 21. In view of the fact that I have permitted the defendant to make an application under Section 73 of the Indian Evidence Act/72 of the Bharatiya Sakshaya Adhiniyam, 2023, Ext.P9 order in O.P.(C) No.1410 of 2022 is liable to be set aside. In the result:- (1) Ext.P9 order in O.P.(C) No.1410 of 2022 stands set aside. (2) I.A.No.9/2022 in O.S.No.190/2017 is allowed. The Court below shall direct the witness concerned to produce the documents ``` 2025:KER:25334 ``` ``` O.P.(C)Nos.1410 & 1595 of 2022 ``` ``` 13 ``` **==> picture [52 x 52] intentionally omitted <==** sought to be produced. (3) Ext.P10 order stands set aside. I.A.No.8/2022 in O.S.No.190/2017 is allowed. (4) The order in I.A.No.10/2022 stands confirmed. The Suit is of the year 2017. The Trial Court shall make earnest efforts to expedite the Trial. The Original Petitions are disposed of as above. ``` Sd/- K.BABU JUDGE ``` VPK ``` 2025:KER:25334 ``` ``` O.P.(C)Nos.1410 & 1595 of 2022 ``` ``` 14 ``` **==> picture [52 x 52] intentionally omitted <==** ## **`APPENDIX OF OP(C) 1595/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE PLAINT IN O.S NO.190 OF 2017 BEFORE SUB COURT -ILL, ERNAKULAM ``` - **`Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S NO.190 OF 2017 BEFORE SUB COURTIII, ERNAKULAM`** - **`Exhibit P3 TRUE COPY OF CHEQUE BEARING NO,754251 DATED 18.03.2017 OF FEDERAL BANK LTD`** - **`Exhibit P4`** - **`TRUE COPY OF THE DEPOSITION OF PW2 DATED 24.06.2022 IN O.S NO.190 OF 2017 BEFORE SUB COURT-ILL, ERNAKULAM`** - **`Exhibit P5 TRUE COPY OF I.A NO. 10 OF 2022 IN O.S NO.190 OF 2017 BEFORE SUB COURT-III, ERNAKULAM`** - **`Exhibit P6`** - **`TRUE COPY OF THE ORDER DATED 20.07.2022 IN I.A NO. 10 OF 2022 IN O.S NO.190 OF 2017 BEFORE SUB COURT - ILL, ERNAKULAM`** - **`Exhibit P7`** ``` TRUE COPY OF THE INTERIM ORDER DATED 02.08.2022 IN OP (C) NO.1410 OF 2022 OF THIS HONBLE COURT ``` ``` 2025:KER:25334 ``` ``` O.P.(C)Nos.1410 & 1595 of 2022 ``` ``` 15 ``` **==> picture [52 x 52] intentionally omitted <==** ## **`APPENDIX OF OP(C) 1410/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE PLAINT IN O.S NO.190 OF 2017 BEFORE SUB COURT, ERNAKULAM ``` - **`Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S NO.190 OF 2017 BEFORE SUB COURT, ERNAKULAM.`** - **`Exhibit P3 TRUE COPY OF CHEQUE BEARING NO.754251 DATED 18.03.2017 OF A/C NO.13750200037039 IN THE NAME OF THE PLAINTIFF IN FEDERAL BANK LTD`** - **`Exhibit P4 TRUE COPY OF THE ORDER DATED 31.05.2018 IN I.A NO. 1786 OF 2018 IN O.S 190 OF 2017 PASSED BY SUB COURT ERNAKULAM.`** - **`Exhibit P5 TRUE COPY OF THE PROMISSORY NOTE DATED 18.03.2017 PRODUCED BY THE PLAINTIFF IN O.S 190 OF 2017 SUB COURT ERNAKULAM`** - **`Exhibit P6 TRUE COPY OF THE I.A NO. 9 OF 2022 IN O.S 190 OF 2017 OF SUB COURT, ERNAKULAM.`** - **`Exhibit P7 TRUE COPY THE I.A NO. 8 OF 2022 IN O.S 190 OF 2017 OF SUB COURT, ERNAKULAM`** - **`Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 22.07.2022 IN O.P (C) NO.1335 OF 2022`** - **`Exhibit P9 TRUE COPY OF THE ORDER DATED 20.07.2022 IN I.A NO. 9 OF 2022 IN O.S 190 OF 2017 BEFORE SUB COURT, ERNAKULAM`** - **`Exhibit P10`** - **`TRUE COPY OF THE ORDER DATED 20.07.2022 I,A NO. 8 OF 2022 IN O.S 190 OF 2017 BEFORE SUB COURT, ERNAKULAM`**