High Court Kerala High Court

Abdul Khader vs Abdul Khader on 6 October, 2009

Kerala High Court
Abdul Khader vs Abdul Khader on 6 October, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 914 of 2009()


1. ABDUL KHADER, AGED 60, S/O. PATHAYA
                      ...  Petitioner

                        Vs



1. ABDUL KHADER, S/O. ULLISSERY MOIDU,
                       ...       Respondent

                For Petitioner  :SRI.G.SREEKUMAR (CHELUR)

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :06/10/2009

 O R D E R
                        THOMAS P.JOSEPH, J.
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                           R.S.A. NO.914 of 2009
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                  Dated this the 6th day of October,    2009

                               J U D G M E N T

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Second Appeal arises from judgment and decree of learned

Additional Sub Judge, Irinjalakuda in A.S.No. 178 of 2006 confirming

the decree and judgment for realisation of money passed by the court

of learned munsiff, Kodungallur in O.S. No.93 of 2003. According to

respondent-plaintiff, appellant borrowed Rs.1,00,000/- from him in

August, 2002 and issued Ext.A1, cheque dated 30.11.2002 for

discharge of that liability. That cheque was dishonoured for

insufficiency of funds which is proved by Ext.A2 and consequent to

which respondent issued Ext.A4, notice which was served on appellant

as proved by Exts.A5 and A6. Appellant sent Ext.A7, reply denying the

transaction. Since the amount covered by the cheque was not paid,

respondent sued appellant for recovery of the amount with interest.

Appellant contended that he had no transaction with respondent, nor

did issue any cheque. Abdul Alim, a native of Bangalore was

conducting a bus service along Kodungallur-Bangalore route and

appellant was an employee at the Kodungallur booking office. Abdul

Alim ued to borrow money from one Devarajan who is a close friend of

respondent. On 28.3.1999 Abdul Alim borrowed money from

R.S.A. No.914 of 2009

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Devarajan and gave cheque as security. Cheque of appellant was

given as additional security. Again Abul Alim borrowed Rs.50,000/-

from Devarajan and repaid Rs.30,000/- on 5.8.1999. Abdul Alim

stopped his bus service. In collusion with Devarajan, respondent filled

up and presented the cheque of appellant and filed the suit.

Respondent gave evidence as P.W.1 and spoke to his case. Exhibits

A1 to A8 are proved on his side. Exhibit A8 is the copy of deposition of

appellant in O.S. No.985 of 2003. Appellant gave evidence as D.W.2.

D.Ws.1 and 3 are witnesses examined on his side. Exhibit B1 is the

copy of private complaint preferred by appellant against Devarajan

and respondent. Exhibit B2 is the copy of the report filed by Sub

Inspector in that case. Learned munsiff acting on the evidence of

respondent found that cheque was issued by the appellant, it was

dishonoured for insufficiency of funds, presumption under Section 118

(a) of the Negotiable Instruments Act (for short, “the Act”) has not

been rebutted by the appellant and that version of appellant

regarding transaction was not believed. Suit was accordingly

decreed. Appellant preferred appeal. First appellate court concurred

with the finding of trial court and dismissed the appeal. Hence this

Second Appeal. It is contended by learned counsel that the defence

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set up by the appellant is valid, probable and relationship between

Devarajan and respondent was not taken into account by the courts

below.

2. Trial court considered the evidence including the

evidence let in by the appellant and found that the cheque in question

was issued by the appellant. Appellant does not dispute that Ext.A1

is a cheque drawn on his account and it is signed by him. Though that

by itself did not amount to admission or proof of due execution of the

cheque, it went a long way in proving due execution of the cheque.

Respondent has given evidence regarding the transaction and

execution of the cheque. It is true that appellant examined D.Ws.1

and 3 also but their evidence was not accepted by the courts below.

Courts below have also referred to Exts.B1 and B2. Finding of learned

munsiff rests on proper appreciation of evidence and that has been

concurred by the appellate court also. Questions decided by the

courts are on the facts of the case and based on evidence on record.

This Court in Second Appeal can interfere with the finding of fact

entered by the first appellate court which concurred with the finding

of trial court only when the finding is not supported by any evidence or

the finding is perverse. No such situation arises in this case. As such

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no question of law is involved in this Second Appeal and it is only to be

dismissed.

3. Learned counsel for appellant requested six months’ time

to the appellant to deposit the amount . It is stated that appellant is

placed in difficult financial situation. Having regard to the

circumstances stated by learned counsel appellant is granted three

months’ time from this day to deposit the decree amount in the trial

court.

With the above observation, Second Appeal is dismissed in

limine.

Interlocutory Application Nos.2011 and 2012 of 2009 shall stand

dismissed.

THOMAS P.JOSEPH, JUDGE.

vsv