Kerala High Court
Rajamma vs U.Damodaran on 8 August, 2012
Bench: K.Hema, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS.JUSTICE K.HEMA
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 8TH DAY OF AUGUST 2012/17TH SRAVANA 1934
AS.No. 1021 of 1998 (A)
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OS.318/1996 of ADL.SUB COURT, THALASSERY
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APPELLANTS/DEFENDANTS:
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1. RAJAMMA, W/O.VELAYUDHAN PILLAI,
ANIYATHARA MEKKE BUNGLOW, ATHIYANNOOR ,
NEYYATTINKARA.
2. LETHA ALIAS HEMALATHA,
WIDOW OF LATE SRI.RADHAKRISHAN,
LEKSHMI NIVAS, ANGADIKKAL,
P.O.PUTHENKAVU CHINGANNUR,
KOTTAYAM DISTRICT.
3. PRAVEEN (MINOR), DO. DO.
(MINOR 3RD APPELLANT IS REPRESENTED BY HIS MOTHER
AND NEXT FRIEND THE 2ND APPELLANT)
BY ADVS.SRI.G.S.REGHUNATH
SRI.MOHAN JACOB GEORGE
RESPONDENT (PLAINTIFF):
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U.DAMODARAN, S/O.KUNJI KUTTY, AGED 55, BUSINESS,
SREESMA NIVAS, MUSHAPPILANGAD AMSOM AND DESOM,
KANNUR TALUK, KANNUR DISTRICT.
BY ADV. SRI.R.SURENDRAN
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09,04.2012
THE COURT ON 08-08-2012 DELIVERED THE FOLLOWING:
VK
K.HEMA &
A.M.SHAFFIQUE, JJ.
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A.S. No. 1021 of 1998
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Dated this the 8th day of August, 2012
J U D G M E N T
SHAFFIQUE, J.
The defendants are the appellants. Parties are referred to as shown in the plaint.
2. The suit is filed for recovery of money. According to the plaintiff, defendants are legal heirs of Radhakrishnan. Plaintiff, does the business in sale of old building materials. Late Radhakrishnan used to purchase such materials from the plaintiff and as per the usual course of business, Radhakrishnan while buying old building materials used to pay certain amount as advance and for the balance amount he used to issue a post-dated cheque in favour of the plaintiff. Later Radhakrishnan used to bring cash for the balance amount and take back the cheque from the plaintiff.
3. While so, it is alleged that on 21.3.1996, late Radhakrishnan agreed to purchase old wooden materials for an amount of Rs.3 lakhs. On 22.3.96 Radhakrishnan brought a lorry and collected the materials. He paid Rs.60,000/- immediately and A.S. No. 1021 of 1998 2 issued a post dated cheque for the balance amount of Rs.2,40,000/-.
4. Radhakrishnan died on 07.4.96 and therefore the plaintiff did not present the cheque.
5. It is the case of the plaintiff that he approached the legal heirs of Radhakrishnan claiming the amount. But they did not settle the matter. He issued a lawyer's notice. But the legal heirs replied that they have no obligation to pay any amount. Hence the suit is filed claiming an amount of Rs.2,40,000/- with interest and cost.
6. The defendants, inter alia contended that late Radhakrishnan had no such business activity. According to them another brother of Radhakrishnan Mr.Murugan was having similar kind of business and he would have taken the cheque of Radhakrishnan and misused the same for the purpose of defrauding the legal heirs of Radhakrishnan. It is further contended that the cheque is materially altered and no rights can flow from such a materially altered cheque. According to them it is a forged instrument. It was further contended that the plaintiff and Mr.Murugan had certain transactions whereas Radhakrishnan was not doing any business in timber as alleged A.S. No. 1021 of 1998 3 by the plaintiff and there was no reason for Radhakrishnan to have issued such a cheque to the plaintiff.
7. The defendants further contended that the plaintiff along with two others visited them on 2.7.96 and informed the first defendant that aforesaid Mr.Murugan was liable to pay certain amount to them on account of purchase of wooden materials. Therefore they reiterated the contention that Mr.Murugan would have delivered the cheque of Radhakrishnan to the plaintiff.
8. The court below framed the following issues:
1. Whether Mr.Radhakrishnan had entered into any transaction with the plaintiff on 21.3.96 as alleged?
2. Whether any amount is payable by Mr.Radhakrishnan to the plaintiff?
3. Whether the defendants are liable to pay any amount to the plaintiff as alleged?
4. Relief and cost?
9. Two witnesses were examined on the side of the plaintiff. PW1 is the plaintiff himself and PW2 is Bank Manager. The plaintiff also relied upon Exts.A1 to A4 and Exts.X1 to X4 were also called for and marked as court exhibits. Elder brother of Radhakrishnan is examined as D.W.1.
A.S. No. 1021 of 1998 4
10. The court below applying the presumption under S.118(a) of the Negotiable Instrument Act found that the cheque issued by Radhakrishnan was genuine and therefore the oral transaction of sale having been proved decreed the suit as prayed for.
11. While impugning the decree and judgment of the court below it is contended by the learned counsel appearing for the defendants that the cheque is a forged instrument and it is materially altered and the suit not being based on the cheque no presumption is available under S.118(a) of the Negotiable Instruments Act. Therefore according to the defendants the suit being based on the original cause of action i.e. the contract of sale of goods, and in the absence of any material evidence to support the version given by P.W.1 in regard to the said oral transaction and viewed in the light of the various contradictions of P.W.1 and the lack of materials to support his version, the court below should have dismissed the suit.
12. On the other hand, the learned counsel appearing for the plaintiff argued that even if the suit is not based on the negotiable instrument when such an instrument is produced as evidence in the case to support his contention that a person owes A.S. No. 1021 of 1998 5 certain amounts to him, the presumption under S.118(a) of the Negotiable Instruments Act is available. Apart from that the learned counsel argued that the evidence of PW1 had not been shaken by cross-examination which itself would prove the oral transaction. The cheque was signed by the plaintiff himself which is clear from the evidence of PW2, the Bank Manager. It is further contended that there is no material alteration as far as the cheque is concerned except for the fact that writings on the cheque and the signature is by using different pen and in so far as this cheque is given only as a security and not intended for presentation, as per the usual practice the plaintiff was not very keen to verify the contents of the cheque at the time when it was handed over to him. Still further it was argued that no evidence was adduced on the side of the defendants to explain as to how the said cheque happened to reach the plaintiff. Neither Murugan nor the wife of the deceased was examined in the matter. The defendants have a case that Radhakrishnan was laid up during the relevant time when the business transaction as alleged by the plaintiff had taken place. No material evidence had been produced to show that he was suffering from any such disease during the relevant time and that he was not available at A.S. No. 1021 of 1998 6 Quilandy at the time when Cheque was issued.
13. Taking into consideration the aforesaid arguments of the counsel appearing on either side and the points for determination in the above appeal are as follows:
i) Whether there is any material alteration in respect of the cheque.
ii) How did the plaintiff come in possession of the cheque.
iii) Whether the court below was justified in drawing a presumption under S.118 (a) of the Negotiable Instruments Act.
iv) Whether the oral agreement for sale of material as contended by the plaintiff is proved and if so whether the plaintiff is entitled for a decree as prayed for.
14. On an analysis of the evidence it could be seen that the year shown in the cheque is smeared. Signature in the cheque, amount in words and figures are seen written using different ink. Date, name of Payee and the amount in words is written by the same ink/pen. PW2 the Bank Manger deposed that when the signature of the deceased Radhakrishnan was compared with his admitted signatures which were available with the Bank it was A.S. No. 1021 of 1998 7 found to be the same. There is no reason to disbelieve PW2. The Bank account was opened on 25.04.1993. Plaintiff had submitted that the cheque was given by Radhakrishnan on 22.3.96 as security for the balance value of the materials and hence there was no reason for the plaintiff to scrupulously verify the ink colour or the writings in the cheque, especially when the usual practice is that the cheque will be taken back when the amount is paid. Therefore prima facie we do not think that there is any evidence to show that the cheque is materially altered by the plaintiff.
15. The point would be how this cheque happened to be with the plaintiff and whether this cheque can be used for proving the transaction pleaded by the plaintiff, which depends upon the answer to the other questions.
16. If Radhakrishnan did not have any business transaction with the plaintiff, how could Radhakrishnan's cheque come in the hands of the plaintiff. The explanation given in the written statement is that Radhakrishnan was staying with Murugan while at Quilandy and Murugan would have given the cheque to the plaintiff. According to the defendants Murugan is a crook though he is the brother of Radhakrishnan. A.S. No. 1021 of 1998 8
17. But the version that Murugan is at loggerheads with Radhakrishnan or his family is not an acceptable version in the absence of any evidence. Murugan is not examined before Court. Radhakrishnan admittedly was residing with Murugan at Quilandy. The defendants in fact, denied that Radhakrishnan was having any timber business but he was assisting Murugan. If Radhakrishnan was only assisting Murugan in the business it is not known for what purpose he had opened a bank account at Quilandy and that too in the year 1993 and was operating the said bank account. Therefore in the absence of any evidence from the side of the defendants to explain as to how the plaintiff happened to be in possession of the cheque it may not be possible to accept the defence version. Defendants also has a case that during the time when the cheque is alleged to have been issued, the Radhakrishnan was suffering from a disease and was laid up. But no such evidence is forthcoming. The evidence of DW1, an absolute stranger to the transaction will not help the defendants in any manner.
18. The next point is whether the plaintiff is entitled to get any presumption in respect of this cheque under S.118(a) of the Negotiable Instruments Act. According to the defendants such a A.S. No. 1021 of 1998 9 presumption is not available since the suit is not based on the cheque. The suit apparently is based on an oral transaction for sale of goods. According to the plaintiff PW1's evidence by itself proves the transaction of sale and the cheque in the hands of the plaintiff confirms the sale. But it could be seen that though the plaintiff deposes about the oral transaction no evidence is adduced to corroborate his evidence. He says that he is not maintaining any records. But he says that the materials were collected by Radhakrishnan in a Lorry. No such particulars are forthcoming. He says that he had purchased the building materials from one Raman Nambiar. Though Ext. A4 agreement is produced, the court below has not considered the same. Other than the cheque the proof regarding the transaction of sale is only based on the oral testimony of plaintiff. Here again under what circumstances the cheque happened to reach the plaintiff assumes importance. Though the plaintiff says that two other persons have seen the issuance of cheque, they are not examined. This crucial factor requires evidence to decide the case either way. We cannot rely upon the mere possession of cheque by the plaintiff and arrive at a finding as proof of the transaction on account of various factors which are projected as A.S. No. 1021 of 1998 10 vitiating circumstances to believe the veracity of the cheque. Learned counsel for the plaintiff contended that even in respect of a suit, which is not on a Negotiable Instrument presumption is available under Section 118(a) of Negotiable Instruments Act. regarding the consideration of the cheque and under S.114 of the Evidence Act as well.
19. Learned counsel for the appellant also pointed out several discrepancies in the evidence of P.W.1. Especially in regard to the fact that plaintiff was not consistent in his deposition regarding when and where the deceased Radhakrishnan had written the contents of the cheque, and absence of examining any other person to prove the oral transaction.
20. On an over all consideration of the facts and circumstances involved in the case, we find that evidence is lacking in respect of various facts which either of the parties were bound to prove. Hence this is a fit case which requires to be remanded for a fresh consideration since relevant aspects as stated above requires to be considered before arriving at a finding regarding the genuineness of the claim made by the plaintiff and the genuineness of the defence raised in the case. A.S. No. 1021 of 1998 11 Both sides placed reliance on various judgments to support their respective arguments. Since we have decided to remand the matter for fresh consideration we do not think that an evaluation of the case law is required at present.
21. Under these circumstances, we set aside the decree and judgment of the court below and remand the matter to the trial court for fresh consideration. Parties shall appear before the court below and they are at liberty to adduce fresh evidence in the matter. The court fee paid by the appellants may be refunded to the appellants. The parties shall appear before the trial court on 04.09.2012.
(sd/-) K.HEMA, JUDGE.
(sd/-) A.M.SHAFFIQUE, JUDGE.
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