Kerala High Court
Sasidharan Nair vs Palayyan on 23 July, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
&
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936
RFA.No. 382 of 2003 ( )
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AGAINST THE JUDGMENT IN OS 91/2002 of SUB COURT,NEYYATTINKARA
DATED 23-07-2003
APPELLANT/PLAINTIFF:
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SASIDHARAN NAIR
S/O THANKAPPAN PILLAI, BUSINESS
SASTHA NILAYAM
PARASUVAIKKAL DESOM
PARUSUVAIKKAL VILLAGE
THIRUVANANTHAPURAM DISTRICT
BY ADVS.SRI.GOPAKUMAR R.THALIYAL
SRI.JUBYRAJ.A.P
RESPONDENT/DEFENDANT:
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PALAYYAN
S/O RAJAYYAN NADAR
MANAPAZHINJI VEEDU
NEDIYANCODE WARD
PARASUVAIKKAL DESOM
PARASUVAIKKAL VILLAGE
THIRUVANANTHAPURAM DISTRICT
BY ADV. SRI.K.L.NARASIMHAN
BY ADV. SRI.G.S.REGHUNATH
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
12-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
T.R.RAMACHANDRAN NAIR &
P.V.ASHA, JJ.
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R.F.A.No.382 OF 2003
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Dated this the 12th day of August, 2014
JUDGMENT
Ramachandran Nair, J.
This appeal is filed by the plaintiff in a suit for realisation of money. The court below by the impugned judgment dismissed the suit by holding that the plaintiff has failed to substantiate the transaction alleged by reliable and convincing evidence.
2. We heard the learned counsel for the appellant and the learned counsel for the respondent.
3. It is a case where the plaintiff filed the suit on the basis of a cheque dated 5.5.2001 for an amount of ` 4 lakhs. The case of the plaintiff is that the defendant had issued the cheque as repayment of amount borrowed and when it was presented for collection, it was returned dishonoured. It was presented before the SBT, Parassala Branch. Even though the defendant was informed about the dishonour of the cheque by a lawyer notice, he did not pay back the amount and R.F.A.No.382/2003 2 accordingly the suit was filed. It is also stated that before the Judicial First Class Magistrate's Court, Neyyattinkara invoking Section 138 of the Negotiable Instruments Act and Section 420 of the IPC, C.C.No.4/2002 was filed.
4. The learned counsel for the appellant submitted that the dismissal of the suit by the court below is not justified. According to him, the court below has travelled beyond the legal position declared by this court in various decisions and has unnecessarily cast the entire burden on the plaintiff to prove the transaction, in a case where there is no dispute regarding the execution of the negotiable instrument. It is also submitted that the case pleaded by the defendant in the written statement was that the plaintiff is conducting a chitty and it was prized in favour of the defendant and he had paid back various amounts and the balance remained was only ` 20,000/-. It is submitted that the defendant has failed to prove the said contention. Therefore, when the defendant had failed to prove the case pleaded by him, the plaintiff is entitled for a decree as prayed for, especially since the plaintiff is entitled to bank upon the presumption available under Section 118(a) R.F.A.No.382/2003 3 of the Negotiable Instruments Act. He relied upon the judgments reported in Bhaskaran Chandrasekharan v. Radhakrishnan ( 1998 (1) KLT 881) , 2003 KHC 1882 (Lillykutty v. Lawrance) and 2014 (2) KHC 170 ( Raveendranathan Nair v. Vijaya Kumar).
5. Per contra the learned counsel for the defendant/respondent submitted that the defendant had pleaded that except the signature, the contents of the cheque are not in his hand writing. Even though the plaintiff wanted to examine one witness to prove the transaction, he did not take steps to examine him and therefore the said failure of the plaintiff is material and the court below has heavily relied upon the said aspect, rightly, accordingly to him, while dismissing the suit. It is submitted that the defendant had produced Exts.B1 and B2, copies of the plaints in two other suits filed by the same plaintiff in support of his pleas which have been rightly relied upon by the court below to reject the contentions of the plaintiff. As far as the plaint claim is concerned, it is also submitted that the interest claim is excessive namely at 18% per annum.
6. It is a case where the defendant did not dispute the issuance R.F.A.No.382/2003 4 of the cheque in favour of the plaintiff. What is contended is that the consideration shown is different namely a chitty transaction, that too for a very lesser amount namely ` 63,000/-. According to the defendant, he had discharged major part of the liability towards the chitty transaction. Blank cheque leaf and a blank paper with stamps were obtained from him as security. DW2 also deposed that the signature in Ext.A1 cheque was that of the defendant.
7. We find that the defendant had not carried forward his contention to its logical conclusion by adducing necessary evidence in support of the said contention. He did not request the court to send the cheque for any expert opinion also if actually he disputed his handwriting. Therefore the said defence taken in the written statement that actually it was a chitty transaction remained not proved.
8. Then the question is whether the defendant was right in relying upon Exts.B1 and B2 plaints in two other suits filed by the very same plaintiff. Of course, the court below was of the view that the averments in the copies of the plaint therein will support the case of the defendant. But as rightly pointed out by the learned counsel for the R.F.A.No.382/2003 5 appellant, those documents have no relevance as far as the transaction herein is concerned since herein the entire suit is rested upon the consideration shown in the cheque itself. It is not a case where the averments in Exts.B1 and B2 could have supported the defendant's pleas also even though the court below was prepared to accept the same. In cross examination he was asked about the defence taken by the defendants in those cases and he answered that the defendants therein had raised a similar plea. We have seen from a perusal of Exts.B1 and B2, that the first one is a suit filed on the basis of a pronote for ` 60,000/- and in the second one his case is that the defendant therein borrowed `85,000/- based on a written agreement signed in a ` 50/- stamp paper. There is no evidence to show that the pleas of the defendants therein that the respondent is conducting a chitty have been accepted by the court. This is clear from paragraph 9 of the impugned judgment. Even though we have gone though the averments in those documents also, we do not find any reason to rely upon the same to non suit the plaintiff since those may not have any relevance as far as the case pleaded by the plaintiff is concerned and R.F.A.No.382/2003 6 the defence taken by the defendant.
9. Then the question is only, as pointed out by the learned counsel, for the respondent the effect if any of non examination of a witness who is stated to have witnessed the drawing of the cheque. In this context, going by the legal position declared by this court in various decisions referred to by the learned counsel for the appellant, we are of the view that the appellant is entitled to rely upon the presumption under Section 118(a) of the Negotiable Instruments Act till the defendant in the light of any rebuttal evidence will be able to prove that onus has been discharged by him. The court below went wrong in finding that the entire burden is on the plaintiff in the light of the defence pleas.
10. While examining the legal position, a Division Bench of this Court in Bhaskaran Chandrasekharan v. Radhakrishnan ( 1998 (1) KLT 881) has held that once there is admission of issuance of a cheque or the same is proved to have been issued, presumption under Section 118 is raised that it is supported by consideration. We extract the Head note which explains the legal position in explicit terms: R.F.A.No.382/2003 7
" When once the execution of the cheque is admitted, presumption under Section 118 of the act arise, until the contrary is proved. Initial presumption rests on the plaintiff to prove that the cheque was issued by the defendant. As soon as the execution of the cheque is proved, the rule of presumption laid down under Section 118 of the Act applies. So also once there is admission of issuance of a cheque or the same is proved to have been issued, the presumption under Section 118 is raised that it is supported by consideration. When statutory presumption is discharged by the plaintiff the burden shifts to the defendant to show that the cheque, though issued, is not supported by valid consideration. In other words, once the issuance of the cheque is admitted or proved, and the presumption is drawn under Section 118 of the Negotiable Instruments Act that presumption can be rebutted by circumstantial evidence or by presumption of fact drawn under Section 114 of the Evidence Act."
11. In Lillykutty v. Lawrance ( 2003 KHC 1182), the question was as to whether if it is shown that the amounts are not in the hand writing of the drawer, the same will invalidate the cheque? Therein it is held that what is material is the signature of the drawer and R.F.A.No.382/2003 8 not the body of the instrument. Therein the signature was admitted. In paragraphs 6 and 7 all the legal positions have been explained. It was held by the court that the burden is on the defendant in such matters. In paragraph 7 their Lordships have held as follows :
" ******************* We are of the view, in a given case cheque is issued by the drawer in favour of the payee and the same is dishonoured by the drawers bank stating funds insufficient, holder of the cheque is entitled to get the amount as reflected in the cheque since the cheque is a negotiable instrument as per Section 118. We are of the view under Section 118 of the Act until the contrary is proved presumption can be made that every negotiable instrument was made for consideration. The expression until the contrary is proved is relevant under Section 118 of the Negotiable Instruments Act.
**************** Therefore mere fact that the payees name and the amount shown in the cheque is not in the hand writing of the drawer of the cheque that by itself is not a ground to contend that they are not validly issued or R.F.A.No.382/2003 9 the cheques were not executed at all."
After holding so, the suit was decreed.
12. Herein also the position is identical. Even though it was the contention that the defendant had only signed the cheque and did not full up the details it will not advance the case of the defendant. Apart from the same, we have gone through the evidence of PW1. PW1 has not admitted any of the defendant's pleas. He did not admit that the cheque was not filled up by the defendant and no admission could be elicited as to the consideration shown also. Therefore it is not a case where the defendant could rely upon any part of the evidence of the plaintiff in support of the pleas also, at any rate, atleast to show that onus of proof has been shifted to the plaintiff with regard to the consideration shown.
13. The only evidence relied upon by the defendant is that of D.W.2, to support his case that only an amount of 63,000/- was borrowed by him. According to D.W.2, he was with the defendant on R.F.A.No.382/2003 10 that day and the defendant received only `..63,000/- and has only put his signature in the cheque. In cross examination, he said that the cheque was executed in a tailoring shop, but he does not remember the date and year. He further admitted that as a nominee of the defendant he has executed work to the tune of 2 lakhs for the Panchayat, in the ward of the defendant. It is seen from the evidence that the defendant was a member of the committee of the Panchayat. Even though the court below was prepared to accept the evidence of D.W.2, we are of the view that he is highly interested in the defendant and it is not safe to accept his version. In the written statement, the defendant has no case that D.W.2 was present. Therefore, it is not safe to accept the case of the defendant based on the evidence of D.W.2 and we conclude so.
14. Recently this Court has examined the various legal positions concerning the same in the decision reported in 2014 (2) KHC 170 ( Raveendranathan Nair v. Vijaya Kumar) by one of us ( T.R.Ramachandran Nair, J.). Hence the evidence shows that the execution of the cheque is proved.
R.F.A.No.382/2003 11
15. In the light of the above, we are of the view that the reasoning adopted by the trial court cannot be justified on the available evidence in this case. At no point of time, onus of proof was shifted from the defendant to the plaintiff, either to prove further that the cheque is properly drawn or to show that it is supported by consideration shown therein. The issuance of cheque is admitted by the defendant in his written statement and when giving evidence as DW1. Well supported by the statutory presumption under Section 118(a) of the Negotiable Instruments Act, the plaintiff is entitled to get a decree. In the light of the above, we reverse the judgment of the trial court. We allow the appeal and the suit is decreed, allowing realization of the amount.
16. We have heard learned counsel on both sides with regard to the interest claimed in the plaint. Even though 18% is claimed in the plaint, we are of the view that the plaintiff is not entitled for the same. No contract is proved also. Wedecree the suit as follows :
We allow the appellant/plaintiff to realise from the defendant the principal amount of ` 4 lakhs with 9% R.F.A.No.382/2003 12 interest till the date of suit and @ 6% from the date of suit till realization. The appellant will be entitled to proportionate costs throughout.
T.R.RAMACHANDRAN NAIR, JUDGE P.V.ASHA, JUDGE sv.