In a second appeal regarding a cheque dishonour suit, the court held that theLower courts correctly found the cheque was issued to discharge liability as a pure question of fact. The plaintiff's non-appearance did not warrant non-suit as there was no burden of proof. The appeal was dismissed.
The second appeal was dismissed.
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 P.B.SURESH KUMAR
FRIDAY, THE 29TH DAY OF JANUARY 2016/9TH MAGHA, 1937
RSA.No. 276 of 2012 ()
AGAINST THE JUDGMENT IN AS. NO.151/2005 OF I ADDITIONAL SUB COURT, THIRUVANANTHAPURAM DATED 17/03/2011. AGAINST THE JUDGMENT IN OS. NO.286/2002 OF I ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM DATED 31/05/2004.
APPELLANT/APPELLANT/DEFENDANT:
JOSEPH THOMAS, TC 4/105, HOUSE NO.G-7, CHESHIER HOME NAGAR, KOWDIAR P.O., THIRUVANANTHAPURAM-695 025.
BY ADVS.SRI.ASP.KURUP SRI.SADCHITH.P.KURUP
RESPONDENT/RESPONDENT/PLAINTIFF:
BABY MATHEWS, AGED ABOUT 35, TC.2/1787-3 (NEW TC.16/2120), GRA-103, GOWREESAPATTOM, PATTOM, THIRUVANANTHAPURAM-695 004, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MATHEW PANICKER, TC 2/1787-3, GRA 103, GOWREESAPATTOM, PATTOM, THIRUVANANTHAPURAM-695 004.
BY ADVS. SRI.S.JUSTUS, SRI.N.S.JAYAKRISHNAN.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
P.B.SURESH KUMAR, J.
R.S.A.No.276 of 2012
-----------------------------------------------Dated this the 29th day of January, 2016
JUDGMENT
The defendant in a suit for realization of money is the appellant in this second appeal.
R.S.A.No.276 of 2012
2
a cheque issued by him to the plaintiff towards security for the amount received by him from the plaintiff towards the value of the shares of the company of which the defendant was the Managing Director, as there was some delay in the matter in issuing the share certificate. According to the defendant, though the share certificate in relation to the shares purchased by the plaintiff was issued to him, the cheque was not received back. In other words, the contention of the defendant is that Ext.A1 cheque is not a cheque issued in discharge of the liability as claimed by the plaintiff. The trial court accepted the case of the plaintiff and decreed the suit. Though the defendant took up the matter in appeal, the appellate court on a re-appraisal of the evidence on record confirmed the decision of the trial court and hence the second appeal by the defendant.
R.S.A.No.276 of 2012
3
the defendant to the plaintiff is not in dispute. Though the defendant contended that he had issued only a blank cheque to the plaintiff without filling the entries therein, the appellate court found that the entries and signature in the cheque are made at one stroke. When the issuance of the cheque is admitted, it is for the defendant to establish that the cheque was not supported by consideration. The question as to whether Ext.A1 cheque is a cheque issued in discharge of a liability or not is a pure question of fact. The courts below have concurrently found that the defendant has not established that Ext.A1 is not a cheque issued in discharge of the liability as claimed by him. The said finding being a finding on a pure question of fact, the same cannot be challenged in a second appeal preferred under Section 100 of the Code of Civil Procedure.
R.S.A.No.276 of 2012
4
money from the plaintiff, the plaintiff has not chosen to adduce evidence in the suit. It was pointed out that only the power of attorney holder of the plaintiff gave evidence on behalf of the plaintiff. According to the learned counsel, in so far as the plaintiff has not given evidence in person in the suit, the plaintiff should have been non-suited by the court. The learned counsel for the appellant relied on the decision of the Apex Court in Man Kaur (Dead) by LRs. vs. Hartar Singh Sangha [(2010) 10 SCC 512] in support of the said contention. True, it was held by the Apex Court in the said case that where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. The said decision may not have any application at all in the present case as there is no burden at all for the plaintiff to prove any fact.
R.S.A.No.276 of 2012
5
contended, relying on Ext.B9 counter foils of the cheque book issued to him from his bank, that all cheques in the said cheque book were issued during 1999 itself and as such, the case set up by the plaintiff that Ext.A1 cheque from the said book has been issued by the defendant to the plaintiff on 7.11.2001 should not have been accepted by the court. There is no substance in this argument also. Merely for the reason that the remaining cheques in Ext.B9 counter foils were issued in the year 1999, it cannot be said from that fact alone that Ext.A1 cheque was not a cheque issued by the defendant on 7.11.2001, as claimed by him.
There is, therefore, no merit in the second appeal and the same is, accordingly, dismissed.
P.B.SURESH KUMAR, JUDGE.
smm
2 issues framed by the court
Whether the finding that the cheque was issued in discharge of liability was a pure question of fact immune from second appeal.
Whether the absence of the plaintiff in person requiring a non-suit despite the undisputed issuance of the cheque.
Colour shows how this judgement treated each authority
Man Kaur (Dead) by LRs. vs. Hartar Singh SanghaDistinguished¶32
Man Kaur (Dead) by LRs. vs. Hartar Singh Sangha [(2010) 10 SCC 512] · Who else cites this
1 provisions across 1 enactments
JOSEPH THOMAS
BABY MATHEWS
P.B.SURESH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
