Jose Joseph vs Thankachan
2022 Latest Caselaw 11588 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                THE HONOURABLE MR. JUSTICE SATHISH NINAN
     TUESDAY, THE 20TH DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944
                           RSA NO. 927 OF 2006
          AGAINST THE JUDGMENT IN AS 85/2001 OF SUB COURT, PALA
                   OS 145/1999 OF MUNSIFF COURT, PALA
                                    -----
APPELLANT/RESPONDENT/DEFENDANT:

           JOSE JOSEPH,
           THAIMURIYIL HOUSE, KIZHATHADIYOOR, P.O. PALA, PALA,
           KOTTAYAM DISTRICT.

           BY ADV SRI.S.PRASANTH



RESPONDENT/APPELLANT/PLAINTIFF:

           THANKACHAN,
           KUDITIPARAMBIL KIZHATHADIYOOR, PALA P.O., PALA,
           KOTTAYAM DISTRICT.

           BY ADV SRI.C.MURALIKRISHNAN PAYYANUR




     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                          SATHISH NINAN, J.
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                       R.S.A. No.927 of 2006
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             Dated this the 20th day of December, 2022

                         J U D G M E N T

The suit for money under a dishonoured cheque,

though dismissed by the trial court, was decreed in

appeal. Hence this second appeal by the defendant.

2. According to the plaintiff, on 11.11.1998, the

defendant borrowed an amount of ` 75,000/- from the

plaintiff and issued Ext.A1 cheque. The cheque was

dishonoured for insufficiency of funds. Thereupon, the

suit is filed.

3. The defendant admitted the issuance of Ext.A1

cheque. However, it was contended that, except for the

signature thereon, the other details were not filled up

by him. According to defendant, the circumstances which

led to the issuance of Ext.A1 cheque is: The plaintiff

owns an autorickshaw. He required some amounts for

repair of his autorickshaw. It was agreed that if the

defendant advances amount to the plaintiff for the said R.S.A. No.927 of 2006

purpose, he will be made as a partner in the profits

obtained by the running of the autorickshaw. Since the

defendant did not possess money, he agreed to give blank

cheque to enable the plaintiff to raise funds. It was

accordingly that Ext.A1 cheque was issued.

4. The trial court noticed that the plaintiff is in

the habit of advancing money to others on interest, and

that it probabilises that a blank cheque was issued by

the defendant upon which the suit has been filed. The

appellate court on the other hand, disbelieved the

defendants case and granted a decree in favour of the

plaintiff.

5. Heard learned counsel on either side on the

following substantial question of law:-

"On the plea of the defendant that it was only a blank

signed cheque that was entrusted to the plaintiff, which was

later filled up by the plaintiff, and the suit is filed upon the

same, was the first appellate court right in having decreed the

suit ?

R.S.A. No.927 of 2006

6. First of all, it is to be noted that when Ext.A1

cheque was presented for payment, it was dishonoured on

the ground of insufficiency of funds. Ext.A2 is the

notice issued by the plaintiff to the defendant. As

evidenced by Ext.A2(b) postal acknowledgment card, the

notice was served on the defendant. In spite of the

same, there was no reply. If the circumstances which led

to the issuance of Ext.A1 cheque is in the manner as

contended by the defendant then, definitely he would

have responded to Ext.A2 notice.

7. The issuance of the cheque is admitted. With

regard to the issuance of a cheque, the normal

presumption is that it is issued in discharge of a debt

or liability rather than as an advancement. Here the

case of the defendant is that the cheque was given in

order to enable the plaintiff to raise funds for

repairing the plaintiff's autorickshaw. Even on the said

contention of the defendant, the plaintiff is entitled

to utilise the cheque. Therefore, the defence does not R.S.A. No.927 of 2006

help the defendant to wriggle out from the liability.

8. According to the defendant, the plaintiff is a

money lender. If that be so, there was no reason for the

plaintiff to have sought for financial help from the

defendant for repair of his autorickshaw and agree to

share the profits from the running of the autorickshaw.

The very defence set up is improbable.

9. Taking it to be that Ext.A1 cheque was

subsequently filled up by the plaintiff, even on the

contention of the defendant, the said filling up was

with due authorisation. The cheque being an inchoate

instrument, the plaintiff was enabled under law to have

the same filled up.

10. In the circumstances as above, the first

appellate court was right in holding that Ext.A1 cheque

is supported by consideration. The evidence in the case

is appreciated in extenso by the courts and has granted

a decree. Substantial question of law is answered

accordingly.

R.S.A. No.927 of 2006

There is no merit in the appeal. The regular second

appeal fails and is accordingly dismissed.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge