Kerala High Court
Sosamma George vs Idikkula Varghese on 8 April, 2026
RFA NO. 463 OF 2005 1 2026:KER:30413
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 8th DAY OF APRIL 2026 / 18TH CHAITHRA, 1948
RFA NO. 463 OF 2005 (E)
AGAINST THE JUDGMENT AND DECREE DATED 26.07.2005 IN
OS NO.21 OF 1997 OF SUB COURT, MAVELIKKARA
APPELLANTS /ADDITIONAL PLAINTIFFS:
1 SOSAMMA GEORGE, AGED 56 YEARS,(DIED)
W/O.LATE M.M.SAMUEL, SIJU COTTAGE,
VETTIYAR MURI, VETTIYAR VILLAGE.
(IT IS RECORDED THAT THE FIRST APPELLANT DIED AND
HER LEGAL REPRESENTATIVES ARE APPELLANTS 2 TO 5
VIDE ORDER DATED 14.07.2025 IN MEMO DATED
08.07.2025)
2 SIJU SAMUEL, AGED 31, S/O LATE M.M.SAMUEL,
SIJU COTTAGE, VETTIYAR MURI, VETTIYAR VILLAGE.
3 SIJI SAMUEL, AGED 31,
D/O.LATE M.M.SAMUEL, SIJU COTTAGE,
VETTIYAR MURI, VETTIYAR VILLAGE.
4 SINI SAMUEL, AGED 25, D/O LATE M.M.SAMUEL,
SIJU COTTAGE, VETTIYAR MURI, VETTIYAR VILLAGE.
5 SUNU SAMUEL, AGED 25,
S/O.LATE M.M.SAMUEL, SIJU COTTAGE,
VETTIYAR MURI, VETTIYAR VILLAGE.
BY ADVS. SRI.K.S.HARIHARAPUTHRAN
SRI.GEORGE MATHEW
RFA NO. 463 OF 2005 2 2026:KER:30413
RESPONDENT/DEFENDANT:
IDIKKULA VARGHESE, S/o IDIKKULA,
AGED ABOUT 53 YEARS, AMPATTATHU HOUSE,
MULAMPUZHA, MUDIYOORKONAM, PANDALAM.
BY ADVS. SRI.A.R.DILEEP
SHRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SMT.SREELEKHA PUTHALATH
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING
ON 25.03.2026, THE COURT ON 08.04.2026 DELIVERED THE
FOLLOWING:
RFA NO. 463 OF 2005 3 2026:KER:30413
JUDGMENT
This appeal is preferred against the dismissal of a suit for the realisation of money filed by the original plaintiff, who died pending the suit.
2. The original plaintiff filed O.S.No.21 of 1997 on the file of the Subordinate Judge's Court, Mavelikkara for realisation of an amount of Rs.2,57,500/- from the respondent/defendant contending that on 15.12.1996 the defendant came to the house of the plaintiff and requested to arrange a loan of Rs.2,50,000/- for his urgent personal needs and promised to repay the same with 18% interest per annum after 30 days and for the repayment of the said amount, the defendant issued Ext.A1 cheque for Rs.2,50,000/- drawn on the account maintained by him with the Catholic Syrian Bank, Pandalam Branch.
3. The cheque was dishonoured on presentation on 11.02.1997 for want of funds. Though the plaintiff contacted the defendant RFA NO. 463 OF 2005 4 2026:KER:30413 personally on 12.02.1996 and demanded the amount back with interest, the defendant did not do so, resulting in the filing of the above suit.
4. The defendant filed a written statement contending that he had no transaction at all with the original plaintiff and that he had made use of a blank cheque issued to one K.N.Mohanan. In short, the issuance of Ext.A1 cheque was denied, and he set up a case that on 09.05.1995, the defendant had borrowed an amount of Rs.20,000/- from one Mohanan for a period of six months and as security, Ext.A1 cheque was entrusted with him. The defendant had also executed an agreement in favour of the said Mohanan, which was extended twice and later the said transaction was closed on 12.01.1996 as evidenced by Ext.B5 agreement. Thus, the defendant prayed for dismissal of the suit.
5. The Trial Court considered the evidence of the additional third plaintiff who was examined as PW1 and marked Exts.A1 to A5 on their side. On the side of the defendant, he was examined as DW1 RFA NO. 463 OF 2005 5 2026:KER:30413 and Exts.B1 to B11 were marked.
6. The trial court found that the due execution of the cheque was not proved and that the case of the plaintiff could not be believed, and dismissed the suit, against which the instant appeal is filed.
7. Learned counsel appearing for the appellants would argue that since the defendant had admitted the signature in Ext.A1 cheque, the burden of proving the transaction he pleaded was on him and having miserably failed to discharge the said burden, the suit ought to have been decreed. Learned counsel also relied on Sections 118 and 139 of the Negotiable Instruments Act and the judgments in Priyamvada K. v. M. Rahufina [2024 (1) KHC 245], Parameswaran v. Smitha Suresh [2024 (6) KHC 27] and Rajesh Jain v. Ajay Singh [(2023) 10 SCC 148] to contend that in a case where the cheque and the signature are admitted by the accused, the presumption under Section 118(a) and Section 139 of the Negotiable Instruments Act, 1881 would operate and the burden shifts to the RFA NO. 463 OF 2005 6 2026:KER:30413 accused to disprove or show the non existence of a legally enforceable debt or liability.
8. The learned counsel argued that the difference in the pleadings and the evidence on the side of the defendant would lead to a conclusion that the case set up by the defendant was false, especially because the defendant had totally denied any transaction with the original plaintiff, but in evidence, various transactions stood proved. It is also argued that K.N. Mohanan, who was a material witness, was not examined and therefore an adverse inference ought to have been drawn against the defendant. At any rate, the transaction between the defendant and one Mohanan could not have been held against the plaintiff to refuse a decree as Ext.A1 cheque is a valid document for an amount of Rs. 2,50,000/- paid, and the findings of the trial court are liable to be reversed.
9. Learned counsel for the respondent/defendant, on the other hand, contended that the suit was filed on 19.02.1997, the written statement was filed on 20.01.1999, the original plaintiff died RFA NO. 463 OF 2005 7 2026:KER:30413 on 11.09.2000, and the additional plaintiffs were impleaded only on 11.01.2001. Accordingly, when the written statement was originally filed, DW1 had nothing to do with the original plaintiff, and there was no transaction with him. It is also argued that even going by the plaint averments, the plaintiff had borrowed Rs.2,50,000/-, agreeing to pay an interest of 18%, whereas the cheque amount did not contain the interest component.
10. It is further argued that the entire documents Exts.B1, B2, A3 and A4 show that the defendant's transactions were with 'Nediyathu Finance' and not with the original plaintiff. Even in Ext.B5, which was executed on a stamp paper purchased on 02.01.1996, details of Ext.A1 cheque were mentioned, which clearly shows that his transactions were with Mohanan and not with the plaintiff. The solitary statement of DW1 that he had a transaction with Samuel is obviously wrong, as all the documents proved otherwise. The defendant had also taken steps to examine Mohanan.
RFA NO. 463 OF 2005 8 2026:KER:30413
11. Learned counsel for the defendant relied on the judgment in S.P. Chengalvaraya Naidu v. Jagannath and Others [1995 KHC 182] which held that a litigant who approaches the court is bound to procude all documents executed which are relevant to the litigation and if withhold a vital document in order to gain advantage, he would be guilty of playing fraud on the court as well as on the opposite party. The counsel also relied on Velayudhan v. Velayudhan [2001 KHC 113] to contend that mere admission of signature does not amount to proof of execution, as execution involves intention to be bound by the completed document. Further, he relied on Latha Suresh Babu v. K. Manoharan [2025 KHC 157], in which this court has held that in a suit for money based on cheque, an initial burden is cast upon the plaintiff to prove the transaction that led to the execution of the cheque and only thereafter can the statutory presumptions under Section 118 of the Negotiable Instruments Act be invoked and that the presumption under Section 118 is rebuttable, for which the defendant can rely on RFA NO. 463 OF 2005 9 2026:KER:30413 the evidence already adduced by the plaintiff and can also adduce independent evidence. Thus, the court below had considered the entire evidence, oral and documentary, and arrived at a conclusion that the case set up by the plaintiff cannot be accepted, which calls for no interference.
12. Heard the learned counsel appearing on both sides and perused the records.
13. It is the case of the plaintiff that the defendant had borrowed an amount of Rs. 2,50,000/- for his personal needs. However, the evidence of PW1 shows that money was lent from 'Nediyathu Finance' and also that the documents will show who had actually paid the amount. Non-production of the documents in possession, which actually show who has allegedly lent the money to the defendant, assumes significance. It has also come out in evidence that the defendant had a transaction with 'Nediyathu Finance' and had in fact pledged 37.5 grams of gold ornaments on 18.11.1994, as seen from Ext.B1 to 'Nediyathu Financiers and RFA NO. 463 OF 2005 10 2026:KER:30413 bankers' run by the original plaintiff and PW1 for availing a loan of Rs.12,000/-.
14. Ext.B2 is the notice issued by Nediyathu Financiers and Bankers regarding two other gold pledge transactions with the defendant. The pledge was not redeemed till 23.03.1996, thus forcing PW1 to issue a notice calling upon the defendant to redeem the pledge on or before 24.04.1996 and threatening that failure to do so would result in the pledged gold ornaments being sold in public auction. PW1 had also stated that the transactions involved in Exts.B1 and B2 were not closed and that the defendant was requested to close the transaction even in 1997. The above facts would show that despite the defendant not clearing the gold pledge transactions, again an amount of Rs. 2,50,000/- was lent on 20.11.1996 without any security other than the cheque. It is unlikely for a man who could not redeem a pledge for an amount of Rs.12,000/- to have again borrowed an amount of Rs. 2,50,000/-. This has to be seen in the context of the finding of the trial court RFA NO. 463 OF 2005 11 2026:KER:30413 that the handwriting and the other details of the cheque varied in the colour of the ink from that of the signature.
15. True, as rightly argued by the learned counsel for the appellant, the defendant had admitted the signature in the cheque, but his specific case was that it was handed over to one Mohanan, whose transactions were closed as seen from Ext.B5. Mr Mohanan was indeed a material witness in the case. However, the oral evidence adduced on behalf of the plaintiff would discredit the plaint averments in the sense that while the original plaintiff contended that for personal needs he had lent the amount, the evidence of PW1 shows that the amount was given by 'Nediyathu Financiers'. Thus, it is a case where the pleadings and the evidence varied. In a case where the defendant could successfully show that the averments made in the plaint were wrong or that the evidence is at variance with the pleadings, the case of the defendant has to be accepted.
16. It has come out in evidence that the original plaintiff was a RFA NO. 463 OF 2005 12 2026:KER:30413 Government servant, and was also doing business in lending, and thus one would expect him to include the interest component as well in Ext.A1 cheque, which was given. Absence of the same also would render the case of the plaintiff improbable in the facts of the case. Though the learned counsel for the appellants argues that the case of total denial in the written statement is belied by the evidence of DW1, the learned counsel for DW1 argues that the original statement was filed before the death of the original plaintiff and it was their case that they have no transaction with the original plaintiff and the entire transactions were with 'Nediyathu Finance'. In this background, the plaintiff also could have produced documents to show that the defendant had transactions with the original plaintiff. The additional plaintiffs, being financiers, would certainly have documents to show when money is lent, and non- production of the accounts or proof of having paid the amount certainly discredits their case.
17. The trial court had considered the rival pleadings and RFA NO. 463 OF 2005 13 2026:KER:30413 appreciated the evidence, both oral and documentary, in the correct perspective to arrive at the findings noted above, which call for no interference.
The dismissal of the suit is accordingly upheld, and the appeal will stand dismissed.
Sd/-
MOHAMMED NIAS C.P. JUDGE DMR/-