The Regular Second Appeal was dismissed as the appellant failed to prove the execution of the cheque. The Court held that presumptions cannot be drawn without corroboration and no legal question arose, being a question of fact regarding the plaintiff's unacceptable case.
Second appeal dismissed without any order as to cost.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
THURSDAY, THE 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934
RSA.No. 1550 of 2012 ()
----------------------AS.62/2004 of D.C & SESSIONS COURT, PALAKKAD OS.657/2000 of PRL.MUNSIFF COURT, PALAKKAD
APPELLANT(S)/APPELLANT/PLAINTIFF :-
V.M. VISWANATHAN, S/O.MADHAVAN,
VALLOORTHODI HOUSE, MANKURUSSI AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT – 678 001.
BY ADVS.SRI.P.R.VENKETESH SRI.P.R.RAJA
RESPONDENT(S)/RESPONDENT/DEFENDANT :-
R. RAMADAS, S/O.RAMACHANDRAN @ THANKAPPAN, VEDIKKARAN HOUSE, ATTAPPALLAM, PUDUSSERY AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT – 678 013.
R1 BY ADV. SRI.BINOY VASUDEVAN R1 BY ADV. SMT.P.G.BABITHA R1 BY ADV. SRI.R.MANIKANTAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
jvt
N.K.BALAKRISHNAN, J.
R.S.A. No.1550 of 2012
Dated this the 7th day of February 2013
J U D G M E N T
The plaintiff in a suit for money who concurrently lost in the courts below has filed this second appeal. He contended that the defendant had borrowed from him a sum of Rs.52,000/- on 27.4.1999 and in discharge of that amount Ext.A1 cheque dated 28.1.2000 was issued by the defendant which on presentment was dishonoured on the ground of insufficiency of fund. A notice was sent to the defendant. He failed to pay the amount and hence the suit was filed. The defendant denied the execution of the cheque and he also contended that he did not borrow any money from the plaintiff. It was further contended that the defendant had no necessity to borrow any amount from the plaintiff.
R.S.A. No.1550 of 2012
-: 2 :-
examined as DW1 and Exts.B1and B2 were marked. The case of the plaintiff in the plaint was that Ext.A1 cheque was issued by the defendant to discharge the amount borrowed by him. That cheque, as per the plaint was stated to have been executed by the defendant on 28.1.2000. Exts.B1 and B2 would clearly go to show that the defendant was abroad at the relevant time. Then the plaintiff turned round and contended that Ext.A1 was a post-dated cheque issued on 27.4.1999 itself. That contention is against the pleading and as such the courts below did not accept that case. Since the defendant disputed the execution of Ext.A1 and also the receipt of the consideration the burden is on the plaintiff to prove the execution of the cheque. Even if it is assumed that Ext.A1 contains the signature of the defendant that does not tantamount to execution of the cheque. Execution is one thing and the proof of signature is quite another.
R.S.A. No.1550 of 2012
-: 3 :-
the plaintiff would have pledged gold ornaments and obtained money from the bank and then lent the same as loan to the plaintiff. The amount shown in Ext.A1 was, according to the plaintiff, the amount lent by him to the defendant. Rs.52,000/- shown in Ext.A1 does not include any interest. That also would falsify the case of the plaintiff.
R.S.A. No.1550 of 2012
-: 4 :-
law is involved in this matter.
Hence, this appeal is dismissed but without any
order as to cost.
N.K.BALAKRISHNAN, JUDGE.
Jvt
2 issues framed by the court
Whether the appellant successfully proved the execution of the disputed cheque to recover the alleged loan.
Whether the substitution of pleadings regarding the date and issuance of the cheque was substantiated by evidence.
V.M. VISWANATHAN
R. RAMADAS
N.K. BALAKRISHNAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
