IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 100 of 2000(E)
1. P.VISWANATHAN
... Petitioner
Vs
1. K.V.GEORGE
... Respondent
For Petitioner :SRI.M.R.ANANDAKUTTAN
For Respondent :SRI.PIRAPPANCODE V.S.SUDHIR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :04/06/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 100 OF 2000
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Dated this the 4th day of June, 2010.
J U D G M E N T
This appeal is preferred against the
judgment and decree of the First Additional
Subordinate Judge, Thiruvananthapuram in
O.S.1148/95. The suit is one for realisation of
the amount. The court below granted a decree in
favour of the plaintiff and it is against that
decision the defendant has come up in appeal.
2. Heard the learned counsel for both the
sides. The brief facts necessary for the
disposal of the appeal are as stated as follows.
It is the case of the plaintiff that the
defendant had borrowed a sum of Rs.47,000/- and
had issued a cheque later for Rs.47,000/- which
when presented for encashment returned with the
endorsement of insufficiency of funds.
Therefore he had sent a notice for which a reply
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raising false contentions had been sent.
Therefore the suit for realisation of the
amount.
3. The defendant on the other hand would
contend he has no monetary transaction with the
plaintiff and his son who married from another
community was given protection by the plaintiff
and the said son had taken some of the valuables
and also a cheque and it had been utilized for
the purpose of harming the defendant. Or in
other words the plaintiff is not entitled to any
relief.
4. The defendant has not admitted the loan
transaction. The defendant had only admitted a
signature in the blank cheque. He also
complaints of theft of the cheque by his son.
So if execution of the cheque is properly proved
then most probably one may be able to draw the
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presumption u/Ss.138 and 139 of the N.I.Act that
the cheque is issued towards the discharge of
the liability. There was an attempt made by the
plaintiff to prosecute the defendant u/s 138 but
the said complaint has ended in acquittal u/s
256(1) Cr.P.C. and further action has not been
done on the same. So in order to entitle the
person to get a decree the transactions have to
be proved and the two methodologies adopted are
one is regarding the borrowl of the amount and
the other is issuance of the cheque towards the
discharge of the liability after six months. So
far as the advancement of the amount is
concerned it is stated by the plaintiff that
plaintiff and defendant are neighbours and along
with PW2 the defendant came and wanted some
amount during the festival season of Onam 1994.
The amount was given after two days. According
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to him he had also withdrawn money from his
account as well as he had borrowed or taken
money from his sister by way of a cheque and had
encashed it and given it to the defendant. So it
is alleged that there are convincing documents.
It should have been produced to show the
truthfulness of the case of the plaintiff. But
strangely the plaintiff did not move his little
finger to prove those aspects, most probably
under the impression that the cheque would be
sufficient to discharge his burden.
5. The next is regarding the cheque. I had
perused the cheque and it is seen that the body
is in one ink and the signature is with another
ink. The defendant has only admitted the
signature in the blank cheque and that too not
issued in favour of the plaintiff but had in his
house which had been stolen away by the son. So
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there is a necessity for a proper proof
regarding the execution of the cheque as well.
The presumptions would arise only when documents
are proved. I think the materials made
available are not sufficient to come to a
conclusion positively and therefore in the
interest of justice I am inclined to grant an
opportunity to the plaintiff to adduce
additional evidence and if necessary produce
additional documents in support of his
contention. Needless to say, defendant can also
have rebuttable evidence and documents to
substantiate his contentions. Therefore the
judgment and decree of the trial court are set
aside and the matter is remitted back to the
trial court with a direction to permit both the
plaintiff and defendant to produce documentary
as well as oral evidence in support of their
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respective contentions and then dispose of the
matter in accordance with law. The security
furnished by the defendant shall remain in tact
till a final decision is taken in the matter.
Parties are directed to appear before the Court
below on 20.7.2010. Parties are also directed
to bear their respective costs in the appeal.
Sd/-
M.N. KRISHNAN, JUDGE.
ul/-
[true copy]
P.A. To Judge.
A.S. 100 OF 2000
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M.N. KRISHNAN, J.
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A.S. No. 100 OF 2000
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J U D G M E N T
4th June, 2010.