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Kajiramkulam Prasanna Chitty vs Krishna Nadar on 23 May, 2009

Kerala High Court
Kajiramkulam Prasanna Chitty vs Krishna Nadar on 23 May, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

AS.No. 595 of 1999(A)



1. KAJIRAMKULAM PRASANNA CHITTY
                      ...  Petitioner

                        Vs

1. KRISHNA NADAR
                       ...       Respondent

                For Petitioner  :SRI.R.T.PRADEEP

                For Respondent  :SRI.G.S.REGHUNATH

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :23/05/2009

 O R D E R
                A.K.BASHEER & P.S.GOPINATHAN, JJ.
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                             A.S.No.595 OF 1999 - F
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                  Dated this the 23rd day of May, 2009

                                     JUDGMENT

Basheer, J:

Appellant is the defendant in a suit for recovery of money. The

trial court, after considering the oral and documentary evidence,

dismissed the suit holding that the appellant/plaintiff had not

succeeded in establishing her case.

2. The plaintiff claimed that she had been conducting chitty

business in the name and style of “Prasanna Chit Fund” for the last

several years. The defendant, a close relative of the plaintiff, had been

working in the establishment as a clerk. But he was put in charge of

the entire business. The plaintiff alleged that the defendant had

fabricated several chitty bonds in the name of subscribers and

misappropriated huge sums of money shown in the bonds. The

subscribers were not paid amounts shown in those bonds. When the

plaintiff got the accounts of the business audited, the above defalcation

came to light. According to the plaintiff, a total sum of Rs.1,50,500/-

covered under Ext.A3 series of chitty bonds, totalling to 24 in number,

was misappropriated by the defendant. The said amount was sought to

be recovered from him in the suit.

A.S.No. 595 OF 1999
:: 2 ::

3. The suit was resisted by the defendant contenting inter alia

that he was not in charge of the business in the firm as alleged by the

plaintiff. He had been discharging the duties of clerk as per

instructions of the plaintiff who had been in overall control and charge

of the chitty business. He further denied the allegation that he had

anything to do with Ext.A3 series of bonds. All transactions in the

firm were being under direct supervision of the plaintiff herself and all

accounts were being maintained by her. In short, the defendant

contended that all the allegations made against him in the plaint were

totally baseless and incorrect and he had not misappropriated any

money as alleged. He, therefore, prayed for dismissal of the suit.

4. Appropriate issues were framed by the court below on the

basis of the pleadings of the parties. Plaintiff got herself examined as

PW1. Her witnesses were examined as PWs 2 to 17 and Exts.A1 to

A7 were also marked on her side. The defendant got himself

examined as DW1. Exts.B1 to B8 were marked on his side. Exts.X1

and X2 were also marked in the case.

5. The court below found that the plaintiff had totally failed to

establish her case. It was noticed by the learned Judge that some of

the witnesses examined on the side of the plaintiff had stated that the

plaintiff herself had been conducting the chitty business and the

A.S.No. 595 OF 1999
:: 3 ::

defendant was only an employee under her.

6. Learned counsel for the appellant has taken us through the

evidence available on record. It is pertinent to note that the specific

case of the appellant/plaintiff was that the defendant had fabricated

or created Ext.A3 series chitty bonds (24 in number) in the name of

various subscribers. Though it was mentioned in the bonds that the

executants (subscribers) had received the sums shown in them,

according to the plaintiff, none of the subscribers shown had been

paid any money. However, the amounts shown in those bonds were

misappropriated by the defendant.

7. It is significant to note that the plaintiff had not produced her

books of accounts to show that the defendant had defalcated the funds

of the firm. In other words, there was no corresponding evidence

with reference to the bonds in question (A3 series) to show that the

amounts indicated therein were debited in the accounts of the firm.

8. The plaintiff wanted the court to assume that Ext.A3 (series)

bonds were created or fabricated by the defendant in the names of

various subscribers. Curiously, many of the executants of the bonds,

who were examined as PWs2 to 16, stated before the court that it was

the plaintiff who had been conducting the chitty business and that the

defendant was only an employee in that establishment. None of them

A.S.No. 595 OF 1999
:: 4 ::

did have a case that the defendant had fabricated these documents.

Some of the witnesses pretended total ignorance about these

documents. It is true that some of the witnesses denied their

signature in the bonds. But that did not mean that it was the

defendant who had created these bonds or that he had

misappropriated the amounts shown in them. Unless and until cogent

evidence was adduced by the plaintiff to show that funds of the firm

had been misappropriated by the defendant, the plaintiff could not

have succeeded in the suit.

9. The court below had adverted to all the materials available

on record. We have carefully perused the oral and documentary

evidence adduced by the parties. In our view, the court below was

justified in repelling the contention raised by the appellant/plaintiff.

In this context, we may also notice that the plaintiff had not produced

the audited statement of accounts though it was alleged that a

Chartered Accountant had conducted audit. According to the plaintiff,

defalcation had come to light when the Chartered Accountant had

conducted audit. But the audited statement of accounts had never

seen the light of the day. It was one of the various reasons which

persuaded the court below to dismiss the suit. In short, no evidence

was adduced by the plaintiff to show that the defendant had, on the

A.S.No. 595 OF 1999
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strength of anyone of the bonds, misappropriated the funds of the

firm. The plaintiff ought to have established this with the aid of her

books of accounts.

10. Having considered the entire materials available on record,

we do not find any reason to interfere with the decree and judgment

passed by the court below. The appeal fails and it is accordingly

dismissed.

In the peculiar facts and circumstances of the case, we are

satisfied that the cost imposed by the court below on the appellant

will meet the ends of justice. Therefore, no further orders as to cost

in this appeal.

(A.K.BASHEER, JUDGE)

(P.S.GOPINATHAN, JUDGE).

jes

A.S.No. 595 OF 1999
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A.K.BASHEER & P.S.GOPINATHAN, JJ.

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A.S.No.595 OF 1999 – F

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JUDGMENT

Dated 23rd day of May, 2009

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