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
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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