IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH SAY OF JULY 2509
BEFORE
THE H0N*BLE MR JUSTICE K N KEsHAVANAR;&YAb;,é.f:
R.S.A. No. 2351 OF 2006
3ET"WEEN:
1
SR: M s RAMU
s/0 LATE SUBBAIAH
4517123, PROPRIETOR =
HARIHARA FOOD PR_ODUCT.S§'~._
coN:mMENT MERC§iANTS" ' ;
NO 3796, 15 CROSS," ~ -
TILAK "NAG/AR, _ '
MYS{)RE~ 5m-:)V12. ~
. 'VAEPELLANT
(BY SR1: GANGADi1*44§;2A:A'H,T:ADVOCATE FOR
AND :
SR1. N;}§AVIN13RA1'IATH"Y;A?«&AT}i,ABV' )
v%.iiARALAKs}iMi %%%% " "
"wm«0 R VENKATARAMANA SETTY
AGE1;::«._A§€>:}T.. 56 YRS
. Ego :::1~:Q3s2, VEENE SI-IAMANNA
'2_4LINE.N::--;W SAYYAJI mo ROAD
MYSGRE "----5?0 012.
3 = MGARAJA SE'I"I'Y
. S/gr LATE cg: R VENKATARAMMQA SETTY
AGED ABOUT 50 was
R/G D NO 382, VEENE SHAMANNA
" 2 LINE NEW SAYYBJI RAO ROAD
MYSQRE -~5?'{} G 12,
K?
3 RAVINDRA
S/0 LATE 0 R VENKATARAMANA SETTY
AGED ABOUT 43 YRS
R/() 1:) NO 382, VEENE SHAMANEJA
2 LINE NEW SAYYAJI RAG ROAD
MYSORE -- 570 012. .
4 SREERAMA % * - =
53/0 LATE 0 R vENKATARAM_ANA'3E'm'Y =
AGED ABOUT 46 YRS ~ ' "
R/O :3 NO 382, VEENE SHAMANNA
2 LINE NEW sAYYA.;i.gA0¢.§:cA:>
MYS{)RE-- 570 012. ' % » "
5 BABE] *
3/0 VI.-ATEV"Q_ R SETTY
AGED Algcmfr 34 %
R/() 1) we 382;j*azEE,NEA S-HAMANNA
2 LINE' NEW SAYYAJI*~ Rom
MYSORE; 520 012., % .
. " '. ' RESPONDENTS
(Ev sré§:':'Ti»~I«: RA.:3-HUESTHY, ADVOCATE )
"'1?§?II'.3:::V'i?;S:'§V'-~I§iLED 21/ s. 100 3:2' C17-'C AGAINST THE
JUDGE;MEN'F."_"--..&,e DEGREE 1:;~'r.14.2:2oos PASSED IN
u """vR.A.N(}..'180;'i%(}{3'% ON THE FELE (3? THE ?RESIDING~
OFFICER; V:i?';{'C-IV, MYSORE, ALLOWING THE AFPEAL AND
"' 5iv*'v'SE'TTING A3193 THE JUDGMENT mp DEGREE m*.3.s.:995
'P.{\;SSEi£)..AIN O.S.NO.1323/1994 on THE FILE 0? THE I ABDL.
E MUE€'«SII4'F, MYSORE.
V:' _,__;§TI~IIS RSA COMING 9:»: ma AQMISSION 'THIS DAY,
V A _ "';'{"}iI;E COURT DELIVERED THE FOLLOWING:
/3
JUDGMENT
This second appeal is directed against
finding of the Courts below. The.;a.;:)pei1aIit”
defendant in 0.3. 1323/1994» 01). ttvie fiie {if éfi1e”~I.j’A§§{§’1_’ti(3:f:*;a.1
Munsiff at Mysere. One OR. t1’1e’:-
plaintiff in the suit. Res1:;endex}t_’_L: te’ ST-{he Legal
Representatives of the Shetty, who
appears to have by the trial
Court and beff;I”e”‘ before the Lower
Appellate Q, ‘V . ‘ 1
2. filed the suit against the
defendant f0I;’ree0ve§}z s9;~– of Rs.-44,450/– inclusive of
_vinmresi_j the d§é1’tev——ef”suii:, inter aiicz contending that on
borrowed a sum of Rs.3O,(}00/—
: V’ ‘»…»,from agreeirfg to repay the said amount with imerest at
– 3.2 396 pa iiowards the repayment ef the said amouni, the
issued the Cheque bearing N0. 5643426 in faveur
‘ plaintiff and requested the plaihtiff to eneash the
“‘eEieque afier the imimation from him. Hewever, the
w
4
defendant did not intimate the plaintiff as to on what date he
should present the cheque for encashment and thereafter, in
spite of the repeated demands made by the “the
defendant failed to repay the amount, as such,
is liable to pay the prineipa} amou::t”‘0f~ a
sum of Rs. 14,450/– towards ‘1nterest’.;__
3. The defendant upQ;1’~~.,_<i:j}:3 ap"pearant:eVVdV"eef6re the
triai Court, denied the caeepf .conte'Ird'i;Vng that at
110 point of time he at.1§}" muchless
Rs.30,00Q/- :10': issued cheque in question
in favour the repayment of the said
emeuat; ' 'Aecordflzgdte the defendant, there was no monetary
V. ?.bet'w.een him and the plaintiff at any time. He
_ that he had borrowed a sum of
V§:e.30,"5Ot) frdm the son of the plaintiff by hypotheeating
jt ee heeeebearmg Ne.3?96 on 25.09.1939 and at that time,
he iaaddddefivered the eheque ix": question to the son of the
V _ witheut mentionirag the payaee'e name and
thereafter, the said cheque has been misused by the plainfifl
5
by entering his name as Payee and thereby a false claim has
been made in the suit. p
4. The trial Court on the basis of the the
parties, framed the following three issues:– it
i) Whether the plaintiff ;5ro~:*e_s’–, that” «_ .
defendant borrowed a Sumgfefe’ RS,30;0OO]«.-__
from him on 01.10.1992 a.I_1dl_ pa},-{V
interest at the rate of %.1% pa? V ”
ii) Whether the defendant “proves thatthe son 1′
the plaintifi ‘_ the Cheque
No.564-3426 for. “__E:gS.:.30′,'{}QO}I».-j without
consideration as”a11e”_’ed P_a1fa~3 of the
w1’itten_statem.eiit?’~. .’ ‘ .
iii) iigvhat aecgsess a;ge=ii9mr?
5, .1′ ” Aftef led evidence, the triai Court on
IA’aseee3:i1e:jitVA.;:=f4VA’tl’1e oral and deeumentary evidence, by its
jud’geiii1eI§t” d_et_ed;”‘(38.08.1995 answered issue Ne.1 in the
vnegatiiiée Iedeue Ne.2 in the affirmative by heiding that the
. V ‘A failed to prove that the defendant borrewed a
V”7″=,_s%me@5ftR$.30,o0o/~ from him on 01.10.1992 and towards
‘ _ ‘repayment ef the said amemit, the cheque in question
was issued. The trial Court further heid that the defendant
/7
fig/”
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has preved that the cheque in question was delivered to the
son of the plaintiff Without consideration, and therefereewthe
plaintiff is not entitled fer the decree as soiight,
of the matter, the trial Court dismissed the’S1*1it:; = .
by the said judgement and decree, the
of the enema p1aintifi’ filed eppeaz RA, eeNe;.1e%%t13o,z320%o4fe
before the District Court, ~:Ti1e Ptesittiitigvefbificer of
the Fast Tract Court-IV at appeal was
made ever, heard the parties jtidffietitent and decree
dated 14.o2.2eo7 femettge et the trial Court and
held t1;at the p;eeeeeeee[tjAemee that the defendant had
borrowed a frem him on 01.10.1992
e.egreei:_1§,te_tA’repaj,.é ” amount with interest and that
tewaerdee of the said amount the defendant
issued. ‘the in question to the plaintifi’. The Lower
_ further held that the defendant has failed to
Veatisfaetexily that there was no monetary fiensaction
him and the plaintifi’ and that the cheque in
tpjesfion haé been éeiivered te the son of the plaintifi
0
e
7
without entering the name of the payee and that the said
cheque has men mis-used by the plaintiff. In that View of
the matter, the Lower Appellate Court allowed fleet
aside the judgement and decree passed by V’
dismissing the suit and decreed the :’5tiit’fe1f ‘
interest at 6% p.a. on the Said sum
date of the suit tiil the date of by’
the said judgement and d’:ee1ee_«ef._{V4evJer Afigiellete Court,
the defendant has filed thie
6. learned counsei
appearing die’: ” the and perused the judgments
under appeel. counsel vehemently centended
I-Vj’11;}.1fl:5tt CI.’Q§«ggeIfV’;%ppelAieFt’e Court is not justified in auowing the
a§pea1e%e:1ee’e¢¢§egi:ag the suit of the p1aintifi’ by setting aside
V”L?1e jdd–geme;1e”‘ end decree of the trial Court. it is his
‘ ‘,5gh£eflfi0nV”=that the finding of the Lewer Appellate Court is
sdte the evidence on record and the Lewef Appellate
T has not properiy appreciated the oral and
‘ hdeemuemaxy evidence. He aiso eeniended that the Lower
6&9»
defence of the defendant that there was no mefietary
transaction between the plaintifi’ and the defendafit
be accepted. ; The Lower Appellate Court
since the defendant has admitted 3.es1:;e:’1A<jj:e".oof
EXP} and receipt of money of'f%s.30;OQ'G/– ,
fact that he has failed to was no
monetary transaction the case
of the p1ai;i1tifi'with.Vrgartjleeto..bott"o}t:ei.'ot'Vf€e;;§0,O00/- by the
defendant towards
repayment_o_f be accepted. The
Lower Aptsellate held that merely because
the p1ai1'1tifi' }:uta5V%notV'seIit_V cheque for encashment and did
_.~:3.~ot .Vbeneiitvv«.!.mder Section. 138 of the N3. Act, it
cannot the cheque in question was not issueti in
V V . V . V favo1 1r__o§'
8. *~ Vvtfiaving regard to the facts anti circumstances of
the evidence as referred to by the Courts below,
. V’ of the considered opinion that the Lower Appellate
court was juseeee in decreeiug the suit of the plaintiff and
10
the findings of the Lower Appellate Court are ix} accordance
with the excel and documentary evidence. Hence, the said
findings of the Lower Appeiiate Court does not warrant
interference by this Ceiiri: in the second appeal.
9. As noticed above, the defendant
issued cheque in question. His defence waeiiitfiei» t1’1e_’ A ‘
cheque was delivered to. the son
mentioriing the pa}/ee’s nameiieiiai theit.__che€1i;e”:..;hae V L’
misused by the plaintiff. leis t1f;e*–defe1§dg1ntei’fu:*th.e§r defence
that there A1120 -I trérimetion between him and
the : ‘_EX.§:’VS”V:.ie:me.”eefL:.i1i:er–f0i1 of the cheque. The
cheque piaintifi’ and the counter– foil
(Al-a?:1tevi.§3O.Ox9é.”1’d3«’8’9, en the reverse side of Ex.P5, the
his sigiature. This cheque
. …,.._\¢.,¢appee11$fte ,.E3%a}'<,fe'iV;1)ee1"2 issued in the name of the defendant
' " 'fer-»»}Rfs.30;O{§{)/~. EXJP6 is a cheque issued by the defendant
'i.r1r'V'f2xzzo{ir of the plaintiff for a sum of Rs.1,500/– 0:1
ee..e§. 1990. The defendant has admitted this fact. Thus,
" '§£em Exs. P5 and P6, it is clearly eetabiiehed that the
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defendant had monetary transaction with the plaj;n.tifi’ ever:
prior to 91.10.1992, on which date he has issued the
CheqL’ze~Ex.P1. It is under these CiI’C11IIiSIi£lIlC6S
light of this evidence, the Lower Appellate
that the defence of the defendam” “1’hat”._ he ‘
monetary transacfien between him
he accepted and the said eeurld’
with the evidence on
10. The son of the l lees examined as
PW2, Whg eréiwevfiltiehce [has clearly stated that the
cheque in cl1me’etien’–w”ae ntetttlléiesued to him ané that it was
issued” “his fathezti V’Not:hiI1g has been elicited in the cross-
“exa’mi:1;atieIi_ef.2 to Show that the cheque in question
‘ wae~de’1ivei*’e{.l’_4:e’ Without mentiening the payaee’s name.
01:1 the4″etf;§,er”i};and, the Lower Appellate Gem’: notices that
éefegldent has not placed any evidence to Show that the
ehehtiueflirx question related to the year 1989 and not 1992.. If
‘V V feelly the transaction in question related to the year 1989
with the son of the plaihtifi’ as alleged by him, it was not
(W
12
difficuit for him to prove the same. However, no evideiiee is
produced by the defendant in this behalf.
11. Having regard to the facts and V’0:’–.
the ease, the Lower Appellate fey’:
rightly held that the trial ileai’ ii .
dismissing the suit of the _» View of ihe
matter, there is no mei’ithinA and it does not
involve any questieri pf iaw’ question of
law. In fact, ganted the relief
to the __by j directing decree only fer
Rs.3o,0o0/i-1 with 5% p.a, from the date of the
suit ii11_;f’i”ea1isaVti€>;f:i.L V’ other words, the Lower Appeiiate
in claim for the interest fi’o;:1:1 the date of
fiajfment at the rate claimed by the
V . these circumstances, the appeal is rejected
« V ‘veitht;iIt4_.beifig admitted.
e » ‘.. e:»:{::1-2%
561/ -5
Judge’