The High Court dismissed the appeal against a decree for recovery. It held that the defendants failed to rebut the presumption under Section 118 of the Negotiable Instruments Act regarding the due execution of the cheque.
Appeal dismissed; no costs.
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RFA NO. 408 OF 2009 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 17TH DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943
RFA NO. 408 OF 2009
AGAINST THE JUDGMENT AND DECREE DATED 24.03.2009 IN OS 156/2005 OF SUB COURT, OTTAPPALAM
APPELLANTS/DEFENDANTS:
1 PAREECHU UMMA, W/O THAZHATHETHIL LATE ALI, AGED 53 YEARS, KULAPPULLY AMSOM, KANAYAM DESOM, OTTAPALAM TALUK.2 NAZAR, S/O. PAREECHU UMMA, AGED 31 YEARS, -DO-3 SIDDIQUE, S/O. PAREECHU UMMA, AGED 29 YEARS, -DO-4 SHERIF, S/O.LATE ALI, AGED 28 YEARS, -DO-5 UMMUSALAMA, D/O. LATE ALI, AGED 26, -DO-6 THAHIRA, D/O. LATE ALI, AGED 23 YEARS, -DO-7 MEHARUNISSA (MINOR), D/O. LATE ALI, AGED 15 YEARS,-DO-8 RAHIYANATH (MINOR), D/O. LATE ALI AGED 15 YEARS, -DO-BY ADV SRI.JACOB SEBASTIAN
RESPONDENT/PLAINTIFF:
CHANDRAN, S/O PANIKKATH, AMMUKUTTY AMMA,
RAYIRANELLUR AMSOM, EDAPPALAM DESOM IN OTTAPALAM TALUK.
BY ADVS.
SRI.K.JAYESH MOHANKUMAR
SRI.PUSHPARAJAN KODOTH
SRI.T.SETHUMADHAVAN
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 17.02.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA NO. 408 OF 2009 2
JUDGMENT
The defendants in the suit came up in appeal, as
against the decree for recovery of an amount of
Rs.1,40,000/- with interest based on a cheque alleged
to have been issued by their predecessor in interest,
one Ali. The suit was filed after his death against
the legal heirs, the defendants, who are the appellants
herein. The signature found affixed as that of Ali was
not specifically denied by the defendants. But, it is
an admitted case that, Ali during his life time, had
given an intimation to the bank regarding missing of
two cheque leaves. The very same defence was taken up
by the defendants stating that there is no money
transaction between the plaintiff and the deceased Ali
and that the cheque in question was not executed or
issued by Ali. But, no satisfactory explanation, much
less any explanation was forwarded as to under what
circumstance the cheque signed by Ali came into the
hands of the defendants. It cannot be treated as a
mere missing of the cheque or a case of theft,
RFA NO. 408 OF 2009 3
especially when it contains signature as that of the
drawer of the cheque. The intimation given by Ali
during his life time to the bank regarding alleged
missing of the cheque would speak volumes what is
behind it. No direct evidence was tendered by any of
the defendants to contradict the evidence tendered by
PW1 and nothing has been brought out to discredit his
evidence though there are some minor discrepancies in
the evidence tendered by him. The mere admission made
by the plaintiff in the box that he did not know in
whose handwriting it was prepared, by itself is not
sufficient, when he advanced a case of preparation in
advance, unless there is a supporting evidence from the
part of the defendants. No such supporting evidence
was adduced by the defendants and none of the
defendants mounted on the box. Hence, the court below
rightly found that the plaintiff has established due
execution of the cheque and the presumption available
under Section 118 of the Negotiable Instruments Act was
not rebutted by adducing evidence by the defendants.
Nothing was brought out at the time of cross
RFA NO. 408 OF 2009 4
examination sufficient to rebut the presumption.
Hence, the appeal fails, dismissed. No costs.
Sd/-
P.SOMARAJAN
JUDGE
msp
2 issues framed by the court
Whether the presumption under Section 118 of the Negotiable Instruments Act regarding due execution of a cheque was rebutted by the defendants.
Whether the defendants sufficiently explained the manner in which the cheque came into their hands.
1 provisions across 1 enactments
PAREECHU UMMA
NAZAR
SIDDIQUE
SHERIF
UMMUSALAMA
THAHIRA
P.SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court