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.
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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
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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
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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
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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
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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
