IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 75 of 2009()
1. RAMESH P.V. AGED 35 YEARS,
... Petitioner
Vs
1. T.R. DAVIS, AGED 38 YEARS,
... Respondent
For Petitioner :SMT.DHANYA P.ASHOKAN
For Respondent :SRI.K.G.BALASUBRAMANIAN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :01/07/2009
O R D E R
HARUN-UL-RASHID,J.
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R.S.A.NO.75 OF 2009
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DATED THIS THE 1ST DAY OF JULY, 2009
JUDGMENT
Plaintiff in O.S.No.1219/1998 on the file of the
Principal Munsiff’s Court, Irinjalakuda is the appellant. This
appeal is directed against the judgment and decree in
A.S.No.80/2000 on the file of the Additional Sub Court,
Irinjalakuda. The suit was filed for a direction to the defendant
to produce Cheque No.910107 issued in Account No.4475 of the
Federal Bank, Nellayi Branch and to cancel the same by
declaring that it is vitiated by forgery and fraud and therefore
void ab initio. The trial court dismissed the suit, which was
confirmed in appeal. Hence, the second appeal.
2. The case of the plaintiff/appellant is that the
defendant had somehow obtained a Cheque No.910107 from the
cheque book issued to the plaintiff, which was exhibited in an
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open place in his shop. It is further alleged that the plaintiff did
not have any knowledge about the defendant till the date of
issuance of a lawyer notice dated 22/7/1997 and he met the
defendant only at Pudukad Police Station on 28th July, 1997,
when the police called him to the police station for questioning in
connection with the complaint filed by the plaintiff. It is his case
that the passbook and cheque book were kept openly in his shop-
room, where the general public had accessability, that he did not
care to verify the cheque leaves and that he came to know about
the missing of two cheque leaves (Nos. 910107 and 910108) and
suddenly he reported the matter to the Federal Bank. On receipt
of a lawyer notice dated 24/7/1997 he came to know that cheque
leaves were forged and they were in the possession of the
defendant. It is his further case that he had never issued any
cheque to the defendant and that the defendant had taken the
cheque leaves, misused and forged them and filed a criminal
complaint against the plaintiff. According to him, the signature
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in the cheque leaf was not put by him and it was forged by the
defendant.
3. The evidence consists of oral testimony of PWs.1 to
3, DW-1, Exts. A2 to A9, B1 to B6 and Exts.X1 to X3. The trial
court elaborately considered the contentions of the respective
parties and concluded that the suit has been filed without any
bona fides, that there is no evidence to prove that the defendant
himself had taken the cheque from the shop of the plaintiff and
forged his signature and produced it before the Bank for getting
payment, that there is no evidence to prove that the plaintiff
himself has issued any cheque to the defendant for transaction,
that he wants to escape from the criminal liability, therefore sued
for cancellation of the cheque and that the contentions raised in
the suit is frivolous and without any bona fides. The trial court
dismissed the suit. The Appellate Court also considered the
questions and agreed with the findings of the trial court. The
dismissal of the suit and confirmation by the Appellate Court for
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the reasons stated elaborately in the judgment requires no
interference by this Court. The findings are purely based on
facts and no different view is possible in the given circumstances.
No question of law much less any substantial question of law
arises for consideration in this appeal.
In the result, the appeal fails and it is accordingly
dismissed in limine.
It is submitted by the learned counsel for the
appellant/plaintiff that Section 138 proceedings is pending before
the Judicial Magistrate of First Class, Irinjalakuda. The said
criminal complaint shall be disposed of on merits untrammelled
by any of the observations made in the civil case, which was
based on the evidence adduced in the case.
HARUN-UL-RASHID,
Judge.
kcv.