Sunitha Navas v. Arifa E

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944** **RSA NO. 62 OF 2020** **AGAINST THE ORDER/JUDGMENT IN AS 224/2016 OF ADDITIONAL DISTRICT COURT-I,** ## **KOTTAYAM** **OS 596/2012 OF ADDITIONAL SUB COURT,KOTTAYAM** ## **CMCP 3/2020 OF HIGH COURT OF KERALA** ## **APPELLANT/APPELLANT/DEFENDANT:** **SUNITHA NAVAS AGED 42 YEARS W/O NAVAS,NADUVELIPARAMBIL HOUSE, ATHIRAMPUZHA POST/VILLAGE,KOTTAYAM TALUK/DISTRICT,PIN-686562. BY ADV P.K.RAVISANKAR** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **ARIFA E W/O.A.M.BASHEER,AGED 58 YEARS, KOCHARACKAL HOUSE, ATHIRAMPUZHA POST/VILLAGE,KOTTAYAM TALUK/DISTRICT,PIN-686562. BY ADVS. SRI.R.PARTHASARATHY SMT.SEEMA** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2022, THE COURT** **ON 21.11.2022 DELIVERED THE FOLLOWING:** R.S.A.(Indigent)No.62/2020 **2** ## JUDGMENT This Regular Second Appeal has been directed against the judgment and decree in A.S.No.224/2016 on the file of Additional District Court-I, Kottayam, which in turn arise out of the judgment and decree in O.S.No.596/2012 on the file of Additional Sub Court, Kottayam. 2. Defendant is the appellant. (The parties hereinafter be referred as per their status before the trial court.) Suit is one for realization of money of Rs.5,35,000/-. Defendant was a neighbour and friend of the plaintiff who has been doing business in chitty and also money lending business. In April 2012, defendant demanded to lend Rs.5,35,000/- to pay the prize amount in one of her chitties and promised to return the same with bank interest. Accordingly, the plaintiff advanced Rs.3 lakhs on 09.04.2012, Rs.2 lakhs on 15.04.2012 and Rs.35,000/- on 19.04.2012. On the said day, defendant issued cheque for the total sum in discharge of the liability. It is alleged that the plaintiff arranged the amount by pledging her gold ornaments. Subsequently, it was known that defendant cheated several other persons and criminal case under Sections 406 and 420 I.P.C. has been registered against her. After her release from the jail, the R.S.A.(Indigent)No.62/2020 **3** defendant asked the plaintiff to present the cheque. On presentation of the same, it was returned for the reason 'funds insufficient'. Lawyer notice demanding the cheque amount was returned unserved. Hence, the suit has been filed. 3. Defendant filed written statement denying that she is a neighbour and friend of the plaintiff. Conduct of business in chitty and money lending is also denied. It is further contended that she never borrowed any amount or issued any cheque to the plaintiff. She borrowed Rs.10,000/- from the plaintiff for carrying out the repairs of the autorickshaw owned by her husband. As a security to that transaction, a signed blank cheque was issued to the plaintiff in September, 2006. Though that money was repaid, the blank cheque was not returned. On a false complaint by the people having enmity towards her, crime was registered falsely against her. 4. PWs 1 and 2 examined and Exts.A1 to A7 marked from the side of the plaintiff. DW1 examined and Exts.B1 to B20 marked from the side of the defendant. 5. The trial court on appreciating the facts, circumstances and evidence adduced decreed the suit allowing the plaintiff to realise Rs.5,35,000/- with interest at 12%. Against R.S.A.(Indigent)No.62/2020 **4** which, the defendant filed appeal and the first appellate court on re-appreciating the facts circumstances and evidence adduced dismissed the appeal confirming the judgment and decree passed by the trial court. Having lost before the two forums, the defendant approaches this Court in second appeal. 6. Notice was issued to the respondent and both sides were heard. 7. The only argument advanced by the learned counsel for the defendant is that courts below went wrong in drawing the presumption under section 118(a) in favour of plaintiff since plaintiff did not have any consistent case regarding the consideration. In the plaint, she alleged that the plaintiff arranged the money by pledging the gold ornaments of her daughter which was bought for the purpose of her marriage and paid the amount to the defendant. whereas, in the proof affidavit, she stated that on 15.04.2012 when the defendant demanded Rs.2 lakhs she handed over 12 sovereigns of gold ornaments to the defendant. Thereafter, on 19.04.2012 when the defendant demanded Rs.35,000/- she handed over 22 gms of gold ornaments. It is also alleged that Rs.3 lakhs paid on 09.04.2012 was raised by pledging gold ornaments at R.S.A.(Indigent)No.62/2020 **5** Ettumanoor Service Co-operative Bank Ltd. So, according to the learned counsel, since the plaintiff have different version with respect to the consideration, the plaintiff is not entitled to get the benefit of presumption under Section 118(a) of the Negotiable Instruments Act, 1881 (in short, the Act). In this context, learned counsel placed reliance on Raveendrananthan Nair N. and Anr. v. Vijayakumar [2014 (2) KHC 170 : 2014 (2) KLT 157 : 2014 (2) KLJ 578] . 8. On the other hand, the learned counsel for the plaintiff would contend that there is no inconsistent version as such with regard to consideration by the plaintiff in the pleadings and evidence. He would contend that even in the plaint she alleged that gold ornaments were pledged for raising the amount and the only difference in the chief affidavit is that the gold ornaments on the last two occasions were entrusted with the defendant for raising the fund. So whether that will disentitle the plaintiff to avail the benefit of the presumption which is available under Section 118(a) of the Act is the crucial question for determination. 9. Raveendrananthan Nair , relied on by the learned counsel for the defendant, is a case in which the plaintiff R.S.A.(Indigent)No.62/2020 **6** admitted during cross examination that consideration shown in the promissory note was not passed to the defendant on the date of execution but to another person. The case of the plaintiff in that case is that the son-in-law of the defendant No.1 one Mr Anil Prasad and the plaintiff were known to each other for many years. Using that acquaintance, the defendants approached the plaintiff and demanded Rs.2 lakhs for discharging certain debts of Anil Prasad and the amount was advanced by the plaintiff. On receipt of the amount, defendants executed promissory note in favour of the plaintiff in own handwriting of the second defendant. On default of the defendants, ultimately the suit was filed. In the written statement, defendants contended that the first defendant is not the father-in-law, but the father of the second defendant and Sri. Anil Prasad is the husband of the second defendant. But the acquaintance with the plaintiff and defendants are denied. It is contended that the plaintiff was having some transaction with Anil Prasad and he is a ration dealer and has some money lending business also and plaintiff has given some money to some strangers known to Anil Prasad. Subsequently, Anil Prasad went abroad and plaintiff after sometime informed the defendants for return of money from R.S.A.(Indigent)No.62/2020 **7** Anil Prasad and they contacted Anil Prasad through phone and stated about some amounts due to the plaintiff and that amounts had to be given by some other strangers. It is also informed that the amount would come to Rs.75,000/- and they were called in an advocate's office and were asked to give some security for the amount. At that juncture, promissory note alleged in the plaint was executed. On getting the lawyer notice, they contacted the plaintiff and he undertook not to initiate legal proceedings against them. It was in the said circumstances, it was found that the presumption under Section 118(a) of the Act does not apply. But the fact situation of this case is entirely different. 10. The consistent case of the plaintiff from the very beginning is the advancement of an amount of Rs.5,35,000/- to the defendant herself and the first Rs.3 lakhs was arranged by pleading gold ornaments by herself and subsequently on two occasions the gold ornaments were handed over to the defendant to raise the funds. It is true that in the plaint it is not alleged that the gold ornaments were entrusted with the defendant on two occasions. But that will not efface or make the entire case put forwarded by the plaintiff as false. 11. In this context, the learned counsel for the plaintiff R.S.A.(Indigent)No.62/2020 **8** brought to my attention Bharat Barrel And Drum Manufacturing Co. v. Amin Chand [AIR 1999 SC 1008 : 1999 (3) SCC 35 : 1999 KHC 467] . Paragraph No.12 of the said decision was highlighted by the learned counsel wherein it has been held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration and such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence and if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well and in case the defendant fails to discharge the initial onus of proof by showing R.S.A.(Indigent)No.62/2020 **9** the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. It is also held that a bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proof to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. In that decision it has been held that even in cases where plaintiff came forward with a case different from one mentioned in the promissory note also the presumption under Section 118 would apply though the defendant can prove the non-existence of consideration. 12. Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm and Ors. [AIR 2008 SC 2898 : 2008 (7) SCC 655 : 2008 KHC 6512 ] was further relied on by the learned counsel wherein while dealing with Section 118(a) of the Act it has been held that the court is obliged to presume, until the contrary is proved, that R.S.A.(Indigent)No.62/2020 **10** promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. Paragraph No.12 of the Bharat Barrel And Drum Manufacturing Co. , referred above, is also quoted therein. 13. Coming to the facts and circumstances of this case, plaintiff was examined as PW1 and filed proof affidavit and Ext.A3 is the cheque alleged to have been issued by the defendant. It has been concurrently found by the courts below that the issue of Ext.A3 cheque by the defendant has been proved and the defence put forwarded by the defendant is that he borrowed an amount of Rs.10,000/- in the year 2006 and as a security for repayment, this Ext.A3 cheque was issued in blank in 2006. Even though that amount was repaid, the cheque was not returned. But apart from ipse dixit of the defendant there is nothing to substantiate her contention regarding the issue of cheque as security in the year 2006 while availing Rs.10,000/-. It R.S.A.(Indigent)No.62/2020 **11** has been found by the first appellate court that no material has been produced to substantiate that the cheque was one issued in the year 2006 by producing the passbook or cheque book containing particular cheque leaf to show that it was issued from the bank in the year 2006. The transaction with other cheque leaves subsequent to that would have proved that allegation. So, in effect, the defendant could not rebut the presumption which is available in favour of the plaintiff under Section 118(a) of the Act. 14. Since the defendant did not succeed to rebut the presumption which is available in favour of the plaintiff under Section 118(a) of the Act, the onus will not shift to the plaintiff and hence the question of consideration actually does not arise. Ext.A1 is the two gold loan receipts and Exts.B1 to B20 is the certified copies of ledger showing pledging of gold ornaments by the plaintiff. Learned Sub Judge has discussed in paragraph No.16 that the defendant admitted that she is having debt and she also admitted that she did not have any gold ornaments but at the same time she admitted that she pledged the gold ornaments. So that would probabilise the case of the plaintiff R.S.A.(Indigent)No.62/2020 **12** that she entrusted the gold ornaments with the defendant. Ext.A1 series receipts produced by the plaintiff would show that she pledged the gold ornaments of a value of Rs.2,22,750/- and also Rs.81,000/- on 09.04.2012. Defendant also produced Exts.B1 to B20 which is the certified copy of the ledger extract obtained by her with respect to the plaintiff in the account of Ettumanoor Service Co-operative Bank showing the details of pledging of gold ornaments by the plaintiff. That will not in anyway improve the case of the defendant because the specific case of the plaintiff is that she raised funds by pledging the gold ornaments and Rs.3 lakhs initially was raised by herself pledging the gold ornaments and that is proved by Ext.A1 series and her specific contention is that on the two other occasions she entrusted the gold ornaments with the defendant for raising the amount. So even though the plaintiff could not prove convincingly as to the amount raised respectively by the defendant on the two occasions the issue of cheque for Rs.5,35,000/- would establish the case of the plaintiff that the amount borrowed in total was Rs.5,35,000/-. Exts.A4 and A5 are the cheque dishonour memo and the intimation respectively issued from Ettumanoor Service Co-operative Bank Ltd. Thereafter, lawyer notice was issued and R.S.A.(Indigent)No.62/2020 **13** copy of the notice is produced as Ext.A6 and Ext.A7 is the notice which was returned unserved. 15. So, I do not find any reason to interfere with the concurrent findings of the courts below in decreeing the suit in favour of the plaintiff and I do not find any substantial question of law emerging for consideration for entertaining this appeal. Hence, the appeal is found to be devoid of any merit and dismissed. 16. The appellant is permitted to file the appeal as an indigent person. Since the appeal is not admitted, appellant/defendant is bound to pay 1/3[rd] of the court fee as per 2[nd] proviso to Section 52 of the Kerala Court Fess and Suits Valuation, Act, 1959. Hence, copy of the judgment shall be forwarded to the District Collector for realization of 1/3[rd] of the court fee payable in this appeal as contemplated under Order 33 Rule 17 of the Code of Civil Procedure, 1908. ## Sd/- **M.R.ANITHA** Shg **JUDGE**