IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 619 of 1994(F)
1. CHANDRAN
... Petitioner
Vs
1. SIMON
... Respondent
For Petitioner :SRI.K.P.SREEKUMAR
For Respondent :SRI.N.P.SAMUEL
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/09/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
S.A.619 OF 1994
Dated, this the 7th day of September, 2007
JUDGMENT
Plaintiff in O.S.407/1990 on the file of
Munsiff Court, Wadakkancherry is the appellant.
Defendant is the respondent. Appellant
instituted the suit seeking a decree for
realisation of Rs.15,000/- due under Ext.A1
promissory note. It was contended that
respondent borrowed Rs.15,000/- on 3.10.1989 and
executed Ext.A1 promissory note promising to
repay the same on demand and subsequently
Rs.5000/- was repaid as per cheque dated
19.4.1990 and inspite of notice balance was not
paid and therefore appellant is entitled to the
decree. Respondent resisted suit contending that
he did not execute the promissory note and did
not borrow Rs.15,000/- as alleged. It was
contended that appellant and respondent were
S.A.No.619/1994 2
working as shop managers under an Abkari
contractor and when respondent wanted a transfer
from one branch to another, he approached
appellant who demanded Rs.5000/- for arranging
the transfer and for that purpose a cheque was
obtained from respondent along with signed blank
papers and signed stamp papers and respondent is
not liable to pay the amount claimed.
2. Learned Munsiff on evidence of PWs. 1 and
2 and DW1 and Exts.A1 to A5 granted a decree
holding that respondent borrowed Rs.15,000/- and
executed as Ext.A1 promissory note and repaid
Rs.5000/- evidenced by Ext.A2 and the balance is
due. Respondent challenged the decree and
judgment before District Court, Thrissur in
A.S.193/1992. Learned District Judge on
reappreciation of evidence set aside the decree
and dismissed suit holding that Ext.A1 is a
concocted document and respondent did not execute
the promissory note or borrowed the amount as
claimed by appellant. It is challenged in the
S.A.No.619/1994 3
appeal.
3. Appeal was admitted formulating the
following substantial questions of law.
1. Whether first appellate court was right
in not applying the presumption under section 118
of N.I. Act as respondent admitted his signature
in Ext.A1.
2. Whether on evidence first appellate court
was justified in holding that respondent did not
borrow Rs.15,000/- or execute Ext.A1 promissory
note, when respondent did not establish the
defence case.
4. Learned counsel appearing for appellant
was heard.
5. The argument of learned counsel appearing
for appellant is that the reasons given by first
appellate court to reverse the finding of trial
court are unsustainable. Learned counsel argued
that respondent admitted his signature in Exts.A1
and A2 and did not establish that he had
handedover signed blank paper or stamp paper to
S.A.No.619/1994 4
the appellant for the purpose of a transfer as
alleged and in such circumstance first appellate
court was not justified in disbelieving the
evidence of appellant or reversing the decree of
trial court.
6. The trial court accepted the evidence of
PWs.1 and 2 and disbelieved evidence of
respondent as DW1 and found that respondent
borrowed Rs.15,000/- and executed Ext.A1
promissory note and repaid Rs.5000/- as
evidenced by Ext.A2. Learned District Judge on
reappreciation of evidence found that Ext.A2 is
not genuine as the factum of execution of Ext.A2
or payment of Rs.5000/- towards consideration of
Ext.A1 were not mentioned in Ext.A3 lawyer notice
demanding the whole amount covered under Ext.A1
promissory note and if Ext.A2 was genuine, it
would have been definitely mentioned in Ext.A3.
Learned District Judge also found that if Ext.A1
promissory note was genuine, there was no
necessity to create Ext.A2 and instead an
S.A.No.619/1994 5
acknowledgement would have been obtained in
Ext.A1 itself and disbelieved the case of
appellant. The question is whether appreciation
of evidence by first appellate court is perverse
warranting reappreciation of evidence in
exercise of powers of this court under section
100 of C.P.C. Ordinarily finding of fact by first
appellate court is final.
7. Ext.A2 is an acknowledgement allegedly
executed by respondent on 29.3.1990, undertaking
to repay the balance covered under Ext.A1
promissory note. Ext.A3 lawyer notice was sent
on 1.10.1990. As rightly found by first
appellate court, there is no whisper about
execution of Ext.A2 or repayment of Rs.5000/- in
Ext.A3 lawyer notice. Added to that what was
demanded under Ext.A3 is not the amount covered
under Ext.A1 less the payment made under Ext.A2
but the entire amount covered under Ext.A1
indicating that Ext.A2 acknowledgement was not in
existence on 1.10.1990 as otherwise appellant
S.A.No.619/1994 6
would have mentioned about Ext.A2 in A3 notice
and demanded only the balance amount.
Therefore the view taken by first appellate court
that Ext.A2 is a concocted document is definitely
a reasonable and possible view that could be
taken on the evidence. In any event, it cannot
be said to be a perverse appreciation of
evidence. The question is if Ext.A2 is
concocted, what is its effect on Ext.A1.
8. As rightly found by first appellate court
if a portion of the amount covered under Ext.A1
was paid, ordinarily an acknowledgement will be
made in Ext.A1. Instead of that Ext.A2 was
concocted to make it appear that respondent had
paid Rs.5000/- towards the amount due under
Ext.A1. If that be so, the view taken by first
appellate court that Ext.A2 was created for the
purpose of strengthening Ext.A1 promissory note
is also a reasonable and possible view. If that
be so, in appreciating the entire evidence, the
view taken by first appellate court that
S.A.No.619/1994 7
respondent did not execute Ext.A1 promissory note
is also a possible and reasonable view which
cannot be interfered by reappreciating the
evidence. Presumption provided under section 118
of Negotiable Instruments Act can be drawn only
if execution of the promissory note is proved.
In the nature of the evidence and facts of the
case, no such presumption could be drawn. Suit
was rightly dismissed by the first appellate
court. There is no merit in the appeal.
Appeal is dismissed. No cost.
M.Sasidharan Nambiar
Judge
Tpl/-