Mat.Appeal No. 202 of 2004 (O.P.70/1998, Family Court, Ernakulam)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 Mat.Appeal.No. 202 of 2004() ---------------------------OP.70/1998 of FAMILY COURT,ERNAKULAM .................... APPELLANT/2ND RESPONDENT ------------------------ RUSSEL JOY, AGED 39 YEARS, S/O.VARGHESE, KATTITHARA HOUSE, PERINGALA P.O., KUNNATHUNADU VILLAGE. BY ADVS. SRI.V.C.JAMES SRI.SERGI JOSEPH THOMAS RESPONDENT(S)/THIRD PETITIONER: --------------- GEETHA GILBERT, AGED 37 YEARS, D/O.GILBERT, M.G.VILLA, PERUMANNOOR. ADVS. SRI.T.KURIAKOSE PETER FOR R1 SRI.ABRAHAM P.GEORGE FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A. NO.3444 PG 2004 IN MAT. APPEAL NO.202 OF 2004. DISMISSED 16.1.2009 Sd/-(P.R. RAMAN, JUDGE) Sd/-(C.T. RAVIKUMAR, JUDGE) ## **P.R. RAMAN & C.T. RAVIKUMAR, JJ.** ## **--------------------------------------------------------MAT. APPEAL NO.202 OF 2004** **---------------------------------------------------------** Dated this the 16th day of January, 2009 ## **JUDGMENT** ## **Raman J.** The above appeal arises out of the order and decree dated 12.1.2004 in O.P. No. 70 of 1998 passed by the Family Court, Ernakulam. The second respondent in O.P. No. 70 of 1998 is the appellant before us and the respondent herein was the third petitioner in the Original Petition. The Original Petition was filed seeking recovery of an amount of Rs.2,45,000/- from the appellant herein as also against Rosy Mathew, who is the mother of the appellant. During the pendency of the proceedings before the Family Court, the mother and brother of the respondent who were petitioners 1 and 2 therein were removed from the party array. The Family Court finally granted a decree as against the appellant only and dismissed the claim made against his mother. Hence, the appellant has chosen to implead only the third petitioner as others are not necessary parties. _Mat. Appeal No. 202/2004_ 2 2. The respondent herein is the divorced wife of the appellant. The marital relationship of the parties was dissolved as per the order in O.P. No. 216 of 1995 of the Family Court. It was the case of the respondent herein that on the eve of the marriage, she was provided with share money of Rs.2,00,000/- and towards the same, three cheques were issued, the details of which are contained in paragraph 4 of the Original Petition, that the cheques were entrusted with the mother of the appellant as per the custom who also drew benefit from the cheques which were later encashed by the appellant. According to the respondent, the marital relationship between herself and the appellant was strained due to the ill treatment meted out to her by the appellant on account of constant demand for enhanced dowry which could not be satisfied by her. It is her further case that though the marriage was dissolved, the amount entrusted with the appellant was not returned and hence, she filed the Original Petition. Initially, the Original Petition was filed before the Sub Court, Ernakulam and later transferred to the Family Court. 3. In the counter affidavit filed by the mother of the appellant who was the first respondent in the Original Petition, she denied of having been entrusted with any amount on the date of the betrothal or at any time in _Mat. Appeal No. 202/2004_ 3 connection with the marriage as alleged in the petition. The allegation of cruelty is also denied by her. The fact remains that both the husband and wife were residing in a separate house and the first respondent-mother of the appellant had no occasion to behave in a cruel manner as alleged. She is ignorant of any payment, either by way of check or by cash and she also contended that she is an unnecessary party. The appellant, though admitted the marriage, contended that in view of the subsequent events, the marital status is not in force. He denied the allegation of entrustment of the cheques and also denied of having any liability for the amount claimed by the respondent herein. The allegation of cruelty is also denied by him. He admitted that O.P. No.216 of 1995 filed by the wife for a decree of divorce ended in her favour. It is his further case that the respondent herein took away the thali mala worth ten sovereigns of gold, the engagement ring and wedding ring each worth one sovereign and the mantrakody saree worth Rs.9,000/-. According to him, on dissolution of the marriage, the respondent is bound to return the said articles, but she did not do so. 4. The evidence in the case consists of the oral testimony of the third petitioner who was examined as PW.1. Exts.A1 to A9 were marked on her side. On the side of the respondents, the second respondent in the _Mat. Appeal No. 202/2004_ 4 Original Petition and three others were examined as RWs.1 to 4 and Ext.B1 was marked. The Family Court considered two issues : - i. Whether the O.P. is maintainable in view of the order of divorce passed in O.P.216/95 ? - ii. Whether the petitioner is entitled to recover an amount of Rs.2 lakhs from the respondent and if so, which of the respondents are liable for payment of the said amount? The maintainability of the petition was decided in favour of the third petitioner in the light of the decisions of this Court reported in **Abdul Jaleel v. Sahida, 1997(1) K.L.T. 734** and **Shyni v. George and Others, A.I.R. 1997 Kerala 231.** No argument was addressed to persuade us to take a different view. 5. The next point that arises for consideration is regarding the entitlement for the amount sought for. The court below considered this point with reference to the materials on record. According to PW.1, prior to the engagement ceremony, there was a function on 6.11.1994 at the house of the respondents and that on the said occasion, three cheques were handed over to the second respondent which are illustrated by Ext.A6. The first respondent contended that no amount was received under the cheques. The court below found that all the three cheques were in the name of the second respondent and that two crossed cheques were for _Mat. Appeal No. 202/2004_ 5 Rs.50,000/- each drawn on Maradu Service Co-operative Bank vide Account Nos.1665 and 2558 and a third cheque for Rs.1,00,000/- dated 11.11.1994 drawn on Ernakulam District Co-operative Bank vide Account No.2553. Ext.A1 is the pass book issued by Ernakulam District Cooperative Bank and Exts.A2 and A3 are pass books issued by Maradu Service Co-operative Bank. Ext.A6 is the receipt of payment issued by Maradu Service Co-operative Bank. Exts.A7 and A8 are the photostat copies of the depositions of the Managers of the respective banks in C.C. No.374 of 1997 on the file of the Judicial First Class Magistrate's Court, Kolencherry. The court below found that prima facie evidence regarding encashment of the cheques are available as per the above documents. The Managers of the respective banks were examined by the Judicial First Class Magistrate's Court, Kolencherry. It is in evidence that the second respondent, that is, the appellant herein had encashed the said cheques. It is based on the said oral and documentary evidence as discussed above that the court below found that the first respondent, namely mother of the appellant was not liable for the amount claimed in the absence of any evidence to show either entrustment or utilisation of any amount as alleged. It also showed that the contention of the second respondent - appellant herein that he was not entrusted with any amount stands disproved. _Mat. Appeal No. 202/2004_ 6 6. A contention was raised that anybody can encash a bearer's cheque. But in the light of the evidence of the Managers of the Banks and in the absence of any steps taken by the appellant to cause production of such cheques or in the absence of better evidence, it cannot be said that the inference drawn by the court below that the second respondent has derived the benefits of the cheques is not correct. The conclusion reached by the court below on an analysis of the evidence as discussed above is a probable one. Though the second respondent - the appellant herein had a different case, in the light of the documentary evidence adduced, that cannot dislodge the presumption arising from the encashment of the cheques. The evidence of RWs.3 and 4 was not believed by the court below in the light of the documentary evidence Exts.A1 to A3 and Exts.A6 to A8. There is not even a suggestion regarding the presence of the witnesses at the time of the betrothal ceremony. It was after analysing the entire records that the court below came to the conclusion that the second respondent - appellant herein was liable for the claim to return an amount of Rs.2,00,000/- with interest thereon to the respondent herein. We have considered the judgment and have also gone through the _Mat. Appeal No. 202/2004_ 7 evidence on record. We agree with the finding entered by the court below and we do not find any reason to interfere with the order impugned. The appeal lacks merit and it is accordingly dismissed. ## **(P.R. RAMAN) JUDGE** **(C.T. RAVIKUMAR) JUDGE** ## **sp/** _Mat. Appeal No. 202/2004_ 8 **P.R. RAMAN & C.T. RAVIKUMAR, JJ.** **MAT.APPEALNO.202/2004** **JUDGMENT** **13th January, 2009**