Kerala High Court
P.Purushothaman Nair vs K.Sreekantan Nair on 1 March, 2010
Author: M.N.Krishnan
Bench: M.N.Krishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 108 of 2009()
1. P.PURUSHOTHAMAN NAIR,
... Petitioner
Vs
1. K.SREEKANTAN NAIR,
... Respondent
For Petitioner :SRI.M.RAMACHANDRAN NAIR
For Respondent :SRI.K.P.SUJESH KUMAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :01/03/2010
O R D E R
M.N.KRISHNAN,J.
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F.A.O No.108 OF 2009
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Dated this the 1st day of March 2010.
JUDGMENT
This appeal is preferred against the order of remand passed by learned District Judge Trivandrum in A.S.No.85/2006. Dissatisfyied with the order of remand, the plaintiff in the suit has come up with this appeal. The suit is one for realisation of the amount and the trial court granted decree in favour of the plaintiff and it is against that decision the defendant filed the appeal and the appellate court set aside the judgment and decree of the trial court and remanded the accused with a direction to send for comparison the hand writing of the defendant and it is against that decision the appeal has been preferred.
2. The learned counsel for the appellant very strongly contends before me that the defendant has admitted about a loan transaction between the plaintiff and the defendant and also had admitted the signature in the disputed cheque F.A.O No.108 OF 2009 2 and so it does not warrant a remand at all. On the contra, the learned counsel for the respondents would contend that the defendant has never admitted the execution of the cheque but had only admitted about the issuance of a blank cheque with a signature and that the plaintiff had filled up the cheque and had created the case of this nature and therefore the instruments would come within ambit of Section 87 of the Negotiable Instruments Act. The learned appellate Judge had extracted the deposition of the plaintiff in para 11 of the judgment. As per the same it is stated that the defendant wrote the cheque and signed from his house. He had written and signed the cheque with the same pen. He also would say that the signature was put using his ink. Further he states:
It has to be understood that the mere admission of signature in a cheque does not amount to admission of the execution of the cheque. When it is specifically stated in F.A.O No.108 OF 2009 3 evidence that the defendant had written the cheque and the writing in the cheque is in the hand writing of the defendant then it is worthwhile to analyse that fact especially in the backdrop that the defendant has got a specific case that he had not written the cheque but has only given a blank signed cheque. So it was under this specific circumstance the learned Appellate Judge felt that it will be a definite scientific indicator if it is sent for comparison for the reason that it will decide the fate of the case. As stated by me earlier, interest of justice has to be met at any stage of the proceeding and the application for sending such comparison was only filed after the suit was posted for judgment. Technically shall not be used as a cause to defeat the interest of justice. Therefore, I cannot hold that the Appellate Court had totally travelled beyond the scope of the power invested in it. Therefore, the order of remand does not suffer from any serious infirmity and therefore it is upheld and the appeal is dismissed. But I make it clear that the observations made by me shall not be taken as a F.A.O No.108 OF 2009 4 guideline for deciding the case and parties be permitted to adduce evidence after it obtains a report from the expert. It has also to be remembered that handwriting of the defendant to be sent must almost relate to a period as in the disputed cheque. Otherwise there will always be an attempt to deliberately change the hand writing. With these observations the appeal is dismissed. The parties are directed to appear before the trial court on 23.3.2010 M.N.KRISHNAN,JUDGE.
mns