Nambeeram Veettil Pocker v. K. Rajeevanm

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931** **RSA.NO. 293 OF 2010()** **--------------------------------AS.55/2008 OF SUB COURT, VADAKARA OS.198/1996 OF MUNSIFF COURT, VADAKARA** **....................** ## **APPELLANT – APPELLANT - DEFENDANT:** **-------------------------------------------------------** **NAMBEERAM VEETTIL POCKER, S/O. AMMED, AGED 52 YEARS, SWASTHAM, PUMATHIL HOUSE, KOTTAPPALLY AMSOM, VALLIAD DESOM, VADAKARA TALUI, KOZHIKODE DISTRICT.** **BY ADV. SRI.C.VALSALAN SRI.GHOSH YOHANNAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENT – RESPONDENT - PLAINTIFF:** **---------------------------------------------------------** **K. RAJEEVANM, S/O. NARAYANAN, AGED 42 YEARS, DRIVER, KAKKOTT HOUSE, P.O. VALLIAD, KOTTAPPALLY AMSOM, VALLIAD DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **R.S.A. NO. 293 of 2010** = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15[th] day of March, 2010 ## **J U D G M E N T** --------------------- Defendant, vanquished in the courts below is before me in this Second Appeal challenging judgment and decree for recovery of Rs.1,00,000/- with interest from him. According to the respondent, appellant borrowed Rs.1,00,000/- from him on 23.4.1996 agreeing to repay the said amount by 23.9.1996 and issued a cheque dated 23.9.1996 for the repayment of the said amount. After the due date respondent presented the cheque for encashment but it was dishonoured for insufficiency of funds on 24.9.1996. Notice was issued to the appellant on 25.9.1996 intimating dishonour and demanding payment. There was neither compliance nor reply. Hence the suit. Appellant contended that there was no such transaction on 23.4.1996 nor had he issued any cheque. Instead, himself and one Abdulla had approached the respondent on 20.9.1993 requesting a loan of Rs.25,000/- for the said Abdulla. Respondent demanded interest at the rate of 7% per month. He also demanded ## **R.S.A. No.293 of 2010** -: 2 :- signed blank cheque and accordingly appellant opened an account in the drawee bank on 25.9.1993 and approached the respondent on the same day. Respondent offered to give the amount on 30.9.1993. On 29.9.1993 himself and Abdulla gave two signed blank cheques to the respondent. On 30.9.1993 respondent lent the sum of Rs.23,250/- after taking the interest payable for one month. Appellant claimed that he could not reply to the notice since he was laid up. Respondent as P.W1 testified to his case. Exhibit A1 is the cheque in question. Its dishonour for insufficiency of funds and intimation of the same with demand for payment are proved by Exts.A2 to A4. Exhibit A5 is copy of assignment deed of the appellant. Exhibit A6 is the photocopy of the ledger of the account maintained by the respondent's bank. Appellant gave contra evidence as D.W.1 and examined D.W.2, Abdulla for whose purpose the amount was allegedly borrowed by the appellant. Exhibits B1 and B2 are copy of deposition of respondent and D.W2 in C.C. No.1334 of 1996 initiated by the respondent. Cheque in question was ## **R.S.A. No.293 of 2010** -: 3 :- sent to the Forensic Science Laboratory (for short, “the FSL”) for examination. Exhibits X1 and X2 are the reports. Trial court after consideration of the evidence held in favour of the case pleaded by the respondent and granted the decree as prayed for. That has been confirmed by the first appellate court. Hence this Second Appeal urging by way of substantial questions of law whether in the light of Exts.X1 and X2 courts below were justified in granting the decree in favour of the respondent, whether in the absence of proof of cause of action pleaded in the plaint respondent should have been given a decree as prayed for and whether the courts below ought to have found that the suit is barred by limitation. It is contended by learned counsel for the appellant that finding entered by the courts below is legally and factually erroneous. 2. So far as the transaction pleaded by the respondent is concerned himself as P.W1 and his witness, P.W2 have given evidence. According to them transaction was on 23.4.1996 when appellant issued Ext.A1, cheque dated 23.9.1996. It is the version of P.W1 that appellant ## **R.S.A. No.293 of 2010** -: 4 :- had brought the cheque filled up and signed it in his presence. Exhibits X1 and X2 are the reports submitted by the FSL after examination of the writings in the cheque. In Ext.X1 it is stated that writing in the cheque is different from the standard writings of the appellant. In Ext.X2 it is stated that entries in the cheque (writings) and the signature are not made in a continuous process and different inks are used. 3. So far as the signature in Ext.A1 is concerned there is no dispute. Appellant has no dispute that he had handed over Ext.A1 to the respondent though according to him in signed blank form. True, that does not amount to admission or proof of execution of the cheque. But when it is admitted that the document containing the signature of appellant was handed over to the respondent it goes a long way in proving due execution of the cheque and it is for the appellant to explain the circumstances in which he happened to hand over signed blank cheque to the respondent. Normally a reasonable man of ordinary prudence is not expected to hand over signed blank ## **R.S.A. No.293 of 2010** -: 5 :- cheque. Courts below after consideration of the evidence found in favour of due execution of the cheque. Learned counsel would invite my attention to the evidence of P.Ws.1 and 2 and contend that no such transaction as pleaded in the plaint has taken place on 23.4.1996. At the time of cross-examination P.W.1 stated that it is not correct to say that on 23.4.1996 seeking urgency appellant borrowed Rs.1,00,000/- from him. That statement of P.W.1 cannot be understood as denial of the transaction on 23.4.1996. Reading from the answer given by P.W1 it is certain that a composite question was put to the witness concerning the urgency allegedly pleaded by the appellant as stated in the plaint and the transaction on 23.4.1996. Answer given by P.W1 is only that he denied the urgency allegedly pleaded by the appellant on 23.4.1996 as stated in the plaint. That answer cannot save the appellant. So far as P.W.2 is concerned learned counsel would invite my attention to the crossexamination. In chief examination he stated about the transaction on 23.4.1996 resulting in handing over of the ## **R.S.A. No.293 of 2010** -: 6 :- cheque to the respondent and his witnessing the same. In cross-examination he stated that in the transaction on 30.9.1993 Abdulla (D.W.2) was not involved and himself was involved in that transaction and thereafter he has not got involved. The statement “thereafter I have not got involved” does not mean that P.W.2 was not a witness to the transaction on 23.4.1996. That answer is in relation to a question in continuation of the transaction in the year 1993 and hence answer given can only be understood as referring to his not further involving in the transaction of the year 1993. 4. So far as Exts.X1 had X2, reports are concerned that does not in any way help the appellant since it is not the case of respondent that the cheque was written by the appellant in his presence. Instead, version of the respondent is that appellant prepared the cheque, brought to him, received the amount and signed the same in his presence. If that be so it is not of any consequence that writings in Ext.A1 are proved to be not that of the appellant and that the writings and signature are not put ## **R.S.A. No.293 of 2010** -: 7 :- in a continuous process. 5. Learned counsel then invited my attention to Ext.B1, copy of deposition of P.W1 in C.C. No.1334 of 1994 where he stated that he had not taken document while lending the amount on 23.4.1996. Exhibit B1 is only a prior statement which can be used for contradiction or corroboration and by itself is not a substantive evidence. Assuming that Ext.B1 being the deposition of respondent in a previous case between appellant and respondent and hence even without confronting respondent with Ext.B1, statements in Ext.B1 can be used for contradiction of respondent. First appellate court has referred to Ext.B1 and stated that the said contradiction in the evidence of respondent is not sufficient to throw out case of respondent. First appellate court has given cogent reasons for holding so. It is not as if whenever there is a contradiction the case has to be rejected. It must also be shown that contradiction is of such a nature it could not have happened at all. In this case contradiction is only that on 23.4.1996 no document was given to the ## **R.S.A. No.293 of 2010** -: 8 :- respondent. But he has given evidence in this case as P.W1 referring to the transaction and the appellant handing over cheque to him on that date. That evidence was found acceptable to the courts below. Hence Ext.B1 is of no assistance to the appellant to contend that respondent has to be non-suited. 6. It is then contended that cause of action pleaded is the issue of cheque on 23.4.1996 and its dishonour on 24.9.1996. According to learned counsel in so far as that cause of action is not proved as held by this ## Court in **P. Chandri v. Kambrath Kanarakutty** (AIR 1990 Kerala 122) respondent cannot fall back upon the original cause of action. I am afraid that contention does not arise since this is not a case where the respondent has given up his cause of action pleaded in the plaint and wants to fall back upon on the original cause of action. Courts below have accepted the evidence of P.Ws.1 and 2 about the transaction on 23.4.1996 and issue of cheque dated 23.9.1996. 7. Yet another argument is that Ext.A1 is ## **R.S.A. No.293 of 2010** -: 9 :- materially altered in that, name of payee is seen thickened. I am unable to accept that as a material alteration on the facts of the case pleaded. For, appellant has no case that the cheque was drawn in favour of some other person and that has been altered as in favour of respondent. His case is only that he had given signed blank cheque. It is also not disputed that the cheque was given to the respondent. If that be so respondent was well competent to write his name, if such a course was required and present it in the bank. That the name is thickened in Ext.A1 cannot amount to material alteration. 8. It is lastly argued that at any rate suit is barred by limitation since transaction was in the year 1993 and in the plaint, house name of the appellant was written as 'Nambiar Veettil' instead of 'Nambeeran Veettil'. That was corrected only in the year 2008. Hence according to the appellant suit must be deemed to have been instituted in 2008. But it is not a case of any disputed identity even as per the version of the appellant. It is only a case of wrong description of the house name ## **R.S.A. No.293 of 2010** -: 10 :- which is not of any consequence and no question of any limitation arose. On going through the judgments under challenge, deposition of witnesses and hearing counsel on both sides I do not find any substantial question of law involved requiring admission of this Second Appeal. Second Appeal is dismissed in limine. Interlocutory Application No.742 of 2010 shall stand dismissed. ## **THOMAS P.JOSEPH, JUDGE.** vsv