The defendants 2 and 3 in OS 318/1996 on the file of the Subordinate Judge's
Court, Thalassery are the appellants. (For the purpose of convenience, the parties are
hereafter referred to as per their rank before the trial court).
2. The plaintiff filed the Suit for realisation of a sum of Rs.2,40,000/- due
from late Radhakrishnan K.V., being the balance amount due in respect of purchase of
old building materials. The 1st defendant is the mother, 2nd defendant is the wife and
3rd defendant is the minor son of late Radhakrishnan. According to the plaintiff, late
Radhakrishnan and plaintiff were doing business in old building materials. The
plaintiff used to supply old building materials to Radhakrishnan on credit basis after
return such cheques. Accordingly on 21.3.1996 Radhakrishnan along with his brother
Murukan came to a Saw Mill in M.M. Road, Thalassery wherein the building
materials were stored and selected articles for an amount of Rs.3,00,000/-. On the
next day on 22.3.1996 Radhakrishnan came and took the articles in four lorries after
paying a sum of Rs.60,000/-. For the balance amount of Rs 2,40,000/- he had issued
a cheque dated 30.4.1996 drawn on Indian Overseas Bank, Koyilandi branch.
However, in the meantime, on 7.4.1996 Radhakrishnan died due to heart attack.
Therefore he could not present the cheque for collection. Further according to the
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Neyyattinkara and informed about the transaction. They agreed to pay the amount but
thereafter, they refused to fulfill the promise. Accordingly, he had filed the Suit
against the defendants who are the legal representatives of deceased Radhakrishnan.
3. The defendants filed written statement denying the entire averments in
the plaint, including any transaction with late Radhakrishnan. One of the contentions
chronic liver cirrhosis and he was bed ridden for about two months prior to his date
of death and as such there was no occasion for him to reach Thalassery on 21.3.1996
or thereafter. According to them on 2.7.1996 the plaintiff along with two others came
to their residence and inquired about Murugan, the elder brother of Radhakrishnan
and told them that Murugan owes money to the plaintiff. According to the defendants,
fraudulently obtained by Murugan from Radhakrishnan. According to them, the
business in the old building materials was conducted by Murugan and Radhakrishnan
was only helping him in that business. According to them, the signature in Ext.A1
4. The trial court framed necessary issues. On the side of the plaintiff
PWs1 and 2 were examined and Exts.A1 to A5 were marked. On the side of the
defendants DWs 1 and 2 were examined and Exts.X1 to X6 were marked.
5. On an earlier occasion, the trial court decreed the Suit, against which the
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by this Court as per judgment dated 8.8.2012. Thereafter, PWs1 and 2 were further
examined and DW2 was also examined. Ext.X5 and X6 were marked during this
stage. After hearing both sides, the trial court again decreed the Suit. In the meantime,
impleaded as additional 4th defendant. Being aggrieved by the above judgment and
decree of the trial court, defendants 2 and 3 preferred this Appeal. Now the points that
6. Heard Sri.Selvin Abraham, the learned counsel for the appellants and
Sri.R.Surendran, the learned counsel for the respondents.
7. The points :- The specific case of the plaintiff is that Radhakrishnan was
doing business with him for the last four years and altogether he had done business
for about 6 -7 lakh rupees. According to him, on 21.3.1996 Radhakrishnan along with
Rs.3,00,000/- and on 22.3.1996 Radhakrishnan came with four lorries and transported
the articles in the lorries after paying a sum of Rs.60,000/- in cash and issuing Ext.A1
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cheque towards the balance price. It was a postdated cheque with the date 30.4.1996.
In the meantime on 7.4.1996 Radhakrishnan died. It was in the above context that he
preferred this Suit against the mother, widow and minor child of Radhakrishnan. In
the written statement, the defendants stoutly denied the entire allegations in the plaint
8. The learned counsel for the appellants would argue that the plaintiff has
not produced any documents to prove that he was doing any business as claimed. He
satisfactory explanation is forthcoming from the plaintiff. Further, he would argue
that though PW1 admitted that there was no witness to the transaction, thereafter two
witnesses were cited but they were not examined. He would further argue that Ext.A1
cheque was issued from the bank in the name of Radhakrishnan in the year 1993 and
that 3 other cheque books were issued before 1995. Ext.A1 was a cheque leaf from
the 1st book which was of the year 1993 and there was absolutely no reason to believe
that such a cheque was issued in the year 1996. He would also invite my attention to
certain discrepancies in the evidence adduced by the plaintiff. It is true that the
plaintiff has not produced any documents to prove that he has any licence to conduct
the business or to prove that he was paying income tax or sales tax. He has also not
9. On the other hand, the learned counsel for the respondent would argue
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Manager it was proved that he had account with that bank. Similarly according to him
according to him there is absolutely no grounds to interfere with the finding of the
trial court. Therefore he prayed for dismissing the appeal.
10. It is true that in the written statement the defendants have taken a
contention that late Radhakrishnan had no transaction at all with the plaintiff and also
taken a contention that Radhakrishnan was suffering from liver cirrhosis and he was
laid up for about two months even prior to date of alleged transaction and as such
there was no occasion for him to go to Thalassery for entering into such a business
transaction with the plaintiff. However, from the evidence of PW2, the bank Manager
Ext.A1 was issued to Radhakrishnan from that account. He has produced Ext.X1
'Account Opening' application, Ext.X2 specimen signature, Exts.X3 and X4 two other
cheques issued in that account. He also deposed that the signature in Ext.A1 tallies
with the specimen signature of Radhakrishnam present in Ext.X2. Therefore, from the
evidence of PW2 and from Exts.X1 to X6 produced by him, it is revealed that Ext.A1
Indian Overseas Bank, Koyilandi Branch.
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11. Though the defendants have taken a contention that the deceased
Radhakrishnan was suffering from liver cirrhosis and he was laid up for a period of
same. For not producing any such medical evidence, no explanation is forthcoming
from the side of the defendants. In the absence of any such documents to prove that
transaction, the above contention of the defendants is liable to be rejected.
12. It is true that since the alleged transaction was between the plaintiff and
legal representatives. As they have no direct knowledge about what actually
transpired between Radhakrishnan and the plaintiff, there will be difficulty for them
in defending the suit. The learned counsel for the appellants relying upon the decision
of Rangoon High Court in Azimullah and Others v. Ma Nyein May, AIR 1936
Rangoon 399, would argue that in such cases the burden is heavy on the plaintiff. In
"......In my opinion in a case where the plaintiff sues the legal representatives
of a deceased person upon a promissory note and there is no proof of any
independent acknowledgment by the deceased of the existence of the debt, the
Court should scrutinize the claim with the greatest care. In particular, where
the plaintiff is not called and the Court has to depend on other evidence the
onus of proof on the plaintiff is not lightly discharged and the validity and due
execution of the promissory note must be proved with strictness."
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13. In the decision in Anumolu Narayana Rao and another v. Ghattaraju
Venkatapayya and others, AIR 1937, Madras 182, in a Suit for money instituted
against the legal representative of executant of the promissory note, the Madras High
Court held that :
"In dealing with the evidence, we are obliged to refer at the outset to
certain defects and omissions in the lower Court's discussion of it which are
so material as seriously to impair the value of the judgment under appeal.
Even in cases where the defendant is the heir-at-law of the obligor and as
such bound by the recitals contained in the document executed by his
predecessor, the Court will, in weighing the evidence, be justified in taking
into account the fact that the defendant was not himself a party to the
transaction and the plaintiff and those supporting the plaintiff are thus
placed in a position of advantage. The disparity arising from this
circumstance becomes all the greater when the defendants are minors...."
14. Since in the instant case also, the Suit was filed against the widow and
minor child of deceased Radhakrishnan, the plaintiff is in a position of advantage
while the defendants are in disadvantageous position and as such, the evidence of the
plaintiff in the absence of independent corroborating evidence is to be construed
strictly.
15. In this case, except the oral testimony of the plaintiff as PW1, there is
no other evidence from the side of the plaintiff, to prove the transaction with late
Radhakrishnan. Along with the plaint no witness list was filed by the plaintiff.
However on 19.5.1998 the plaintiff filed a witness list containing three witnesses
namely one K.V.Murugan, one Kumaran Mastri and the Manager of Indian Overseas
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bank, Quilandy. Out of which, the 3rd witness namely, the Manager, Indian Overseas
Bank, Quilandy alone was examined as PW2. Subsequent to the remand, the plaintiff
filed a witness list containing two other witnesses, one Sreedharan and one
Prabhakaran. However, they were also not examined on the ground that one of them
is no more and the whereabouts of the other is not known. The learned counsel would
submit that the witness Murugan is none other than the additional 4 th defendant and
the brother of Radhakrishnan and as such the plaintiff could not examine that witness.
Ext.A5 is the death certificate of Sreedharan. Kumaran Mastri in the first list and
Prabhakaran from the second list were not examined. Therefore the fact remains that
in order to prove the transaction, there is no independent evidence in this case. In the
above circumstances, the evidence of PW1 requires thorough scrutiny in this case.
16. Ex.A2 is the lawyers notice dated 10.7.1996 issued by the plaintiff to
the defendants, which contains the first version regarding the actual transaction as
disclosed by the plaintiff. In Ext.A1 the plaintiff stated that the articles supplied to
Radhakrishnan are the materials obtained by him after demolishing a house purchased
by him, which situated at Nadal. Ext.A2 further states that those materials were stored
in a Saw mill situated at M.M road Thalassery and Radhakrishnan took delivery of
those materials from the Saw Mill. Therefore, as per Ext.A2, the materials supplied to
Radhakrishnan were the one obtained by the plaintiff after demolishing a house
situated at Nadal and stored in a saw Mill at M.M. Road Thalassery.
17. However, at the time of evidence, the plaintiff has produced Ext.A4, an
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agreement he entered into with one Raman Nambiar on 27.2.1996. In Ext.A4 it is
stated that a dilapidated building having No.409 in Ward No.VIII of Edakkad
panchayat involved in I.A.845/94 in O.S No.471/1 on the file of Additional Sub
Court, Thalassery, was auctioned as directed by the Court among the parties to the
Suit and accordingly in the auction conducted by the Advocate commissioner
appointed by the Court, K.Raman Nambiar obtained right to demolish the said
building. It further states that the Commissioner conducted sale regarding demolition
of the dilapidated building on 22.2.1996 and Raman Nambiar purchased the said right
for a total consideration of Rs.3,50,000/-. Ext.A4 further states that, with respect to
the above auction sale, proceedings was issued by the Court and also that a copy of
the said proceeding was handed over to K.Raman Nambiar at the time of executing
Ext.A4. In Ext.A4 there are two witnesses, one Kumaran Mastri and one Edavalath
Ananthan. It is interesting to note that in this case the plaintiff has not examined
either K.Raman Nambiar with whom the plaintiff entered into Ext.A4 agreement or
any of the two witnesses to Ext.A4. For not examining those persons no explanation
is forthcoming. The plaintiff also has not produced copy of the proceedings of the sub
Court, Thalassery, which he received along with Ext.A4, before this Court. For non-
production of that vital document also there is no valid explanation.
18. As argued by the learned counsel for the defendants, in Ext.A2 notice
the place of the building mentioned is Nadal whereas, the building involved in Ext.A4
situates at Edakkadam Desom in Edakkad. The learned counsel for the
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respondent/plaintiff would argue that those places are nearby places. However, there
is no evidence in this case to prove that the place Nadal mentioned in Ext.A2 and
Edakkadam Desom in Edakkad panchayat mentioned in Ext.A4 are same or even
nearby places. During the cross-examination, PW1 deposed that it was on 25.2.1996
that the building was demolished. However, from Ext.A4 agreement it can be seen
that the said agreement was executed only on 27.2.1996. The argument advanced to
the effect that the agreement was executed while the demolition was going on is not at
all convincing or reliable. With regard to the above discrepancy, no satisfactory
explanation is forthcoming, from the side of the plaintiff. The above discrepancies in
the evidence of PW1 with regard to the place of the demolished building and the date
of demolition of the building are also crucial circumstance against the veracity of the
plaintiff's case.
19. The learned counsel for the appellants invited my attention to the
contents of Ext.A1 cheque and argued that Ext.A1 contains different hand writings
and different inks. The signature in Ext.A1 is in black ink and other entries are in blue
ink. During the cross-examination of the plaintiff as PW1, at first he claimed that all
the entries in Ext.A1 were made and the signature was affixed therein by
Radhakrishnan himself. Thereafter he admitted that two inks were used in Ext.A1.
When he was asked whether Ext.A1 contained two different hand-writings, at first he
deposed that he does not know. Thereafter he admitted that two pens were used. He
clarified that at first Radhakrishnan filled the cheque and affixed his signature, except
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writing his name. At that time he insisted that Radhakrishnan should write his name
also in the cheque. According to PW1, at that time, since the pen of Radhakrishnan
run out of ink, Murugan handed over another pen to him and the remaining entries
were written using the pen supplied by Murugan. However, on a mere perusal of
Ext.A1 it is apparent that three different inks and at least two different hand-writings
are in it. The signature of Radhakrishnan is seen in black letters using ball-pen. The
amount in figures is seen written using blue ink. But, the name, date and amount in
words were seen written using another type of blue ink which spreads easily. The
amount written in figures remains as such, without even a slight spreading of ink. The
version of PW1 that, at first Radhakrishnan has written the amount and put his
signature using the same pen and handed over the same to him cannot be true, as the
amount in figures is written in blue colour, while the signature is in black colour. The
version of PW1 that after writing the amount in figures and putting the signature in
Ext.A1, the pen of Radhakrishnan run out of ink is also incorrect as there is no such
sign of ink running out, in any of the entries in Ext.A1. Therefore, the above answer
given by PW1 that during the course of executing Ext.A1 the pen of Radhakrishnan
ran out of ink can only be falsehood.
20. It is apparent that Radhakrishnan's handwriting appearing in the
signature is entirely different from the handwriting in which the name of the plaintiff
and the amount in words are written. PW2, the Manager of Indian Overseas Bank also
deposed that there are two hand-writings in Ext.A1. The evidence of PW2, the Bank
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Manager that Ext.A1 contained two different hand-writings is not challenged by the
plaintiff. As I have already noted above, on a perusal of Ext.A1 also it can be seen
that the handwriting of Radhakrishnan in Ext.A1 and the handwriting in which the
name of the plaintiff and the amount in figures were written are entirely different and
the above conclusion is fortified by the evidence of PW2, the Bank Manager. With
regard to the above different hand-writings and different inks present in Ext.A1, no
explanation is forthcoming from the side of the plaintiff. The above crucial
circumstance casts serious doubt in the veracity of the plaintiff's case.
21. Ext.X5 contain the details of the cheque books issued to Radhakrishnan
from his account maintained with Indian Overseas Bank, Quilandy branch. From the
evidence of PW2 and from Ext.X5 series it can be seen that altogether four cheque
books were issued to Radhakrishnan. Out of which, the first cheque book was issued
on 24.5.1993, the second book was issued on 15.9.1993, the third one on 27.10.1994
and fourth one on 3.1.1995. Each cheque book contained ten cheque leaves. From the
evidence of PW2 and from Ext.X5 it is revealed that Ext.A1 cheque is the one
contained in the first cheque book issued to Radhakrishnan on 24.5.1993. PW2
deposed that in the year 2005 computerization was done in his Branch and the details
of the transactions prior to 2005 were entered in the ledger books. He also deposed
that after the computerization there was only one entry in the said account and he
produced statement of account subsequent to the computerization and marked it as
Ext.X6. He has also produced Exts.X3 and X4 copies of cheques having Nos.815 and
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820 which are from the final cheque book issued on 3.1.1995. When he was asked as
to why he has not produced the details of the previous transactions, he clarified that
he received the summons only immediately before the date fixed for his appearance
and there was no time to trace out the old ledgers.
22. After noticing that in Ext.X6 there are only two cheque payments, the
trial court proceeded to hold that, Radhakrishnan might have received fresh cheque
books before exhausting the previous cheque books and hence there is chance for
issuing Ext.A1 from the old cheque book, even in 1996. The trial court arrived at such
a finding solely on the assumption that in Ext.X6 there are only two cheque
payments. The reason for not noting the previous cheque payments in Ext.X6 is not
because there were no such previous transactions, but because PW2 had no time to
trace out the old ledgers. Therefore, the finding of the trial court to the effect that,
though four cheque books containing 40 cheque leaves were issued to Radhakrishnan
during the period from 24.5.1993 to 3.1.1995, only two cheques came up for
collection is unsustainable. On the other hand, Exts.X3 and X4 cheques having
Nos.815 and 820 involved in the last cheque book issued to Radhakrishnan on
3.1.1995 are seen issued on 10.2.1995 and 25.5.1995 respectively, in regular order.
23. In normal human conduct, unless there is any ulterior motive, one will
issue cheques serially, in ascending order and start using a new cheque book only
after exhausting the earlier one. According to the plaintiff, Radhakrishnan has done
business with him for about 3-4 years, prior to the disputed one and during those
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times he used to purchase goods on credit after issuing cheque as security and receive
back the cheque after making payment. Therefore, there is no grounds to suspect that
this time alone there was any ulterior motive to Radhakrishnan to behave in a way
different from normal human conduct, by issuing an old cheque leaf to the plaintiff. In
other words, there was absolutely no probability for Radhakrishnan to issue Ext.A1
cheque from the book issued to him from the bank in 1993 to the plaintiff in a
transaction that occurred in 1996.
24. According to the plaintiff the date of Ext.A1 is 30.4.1996. However, in
the date in Ext.A1, the figures '96' in the year '1996' are not clear, which may either
be due to spreading of ink or some deliberate act. Therefore, it is not clear as to
whether there is any correction in the year in Ext.A1. It was in the above context the
defendants have taken a contention that there is material alteration in Ext.A1. The
learned counsel has relied upon several decisions in support of his argument that
change of date amounts to material alteration and that a materially altered cheque is
void. Since the year in the date in Ext.A1 is not visible due to spreading of ink or
otherwise, only an expert on examination can say whether there is any material
alteration in it. In the absence of any such expert opinion, it cannot be concluded that
there was any material alteration in Ext.A1.
25. As per the plaint, on 2.7.1996 when he approached the defendants
personally at their residence in Neyyattinkara, they were aware of the transaction and
that they agreed to repay the amount due from Radhakrishnan. The above claim in the
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plaint was stoutly denied in the written statement. However, at the time of evidence,
PW1 had an entirely different version. At the time of evidence his case is that when
he contacted the elder brother of Radhakrishnan, he said that he will not intervene in
the dispute, while the other defendants did not give any reply. The above discrepancy
in the evidence of PW1 and the pleading in the plaint to the contrary is another
circumstance creating suspicion in the case set up by the plaintiff.
26. According to the plaintiff, he was doing business for several years and
the amount involved was several lakhs of rupees during 1990s. The learned counsel
would argue that during the year 1996 a sum of Rs.3,00,000/- is a very huge amount
and in spite of that, the plaintiff has not produced any document to prove that he was
paying income tax, sales tax or even profession tax. As argued by the learned counsel
for the appellants, the plaintiff could not produce even a scrap of paper to prove that
he was doing any business in old building material as claimed in the plaint. He also
has not produced documents to prove that he has got any licence for doing such
business. From the printout produced by the learned counsel, showing the rate of
income tax during 1990s, it is revealed that during the assessment year 1995-96 for
income above 35000/- income tax is to be paid. From the assessment year 1996-97,
1997-98 and 1998-99, for the income above Rs.40000/- income tax was to be paid.
The learned counsel for the plaintiff would argue that for the mere reason that the
plaintiff has not taken license for doing business and not paying income tax for the
income he derived from the business, it cannot be presumed that he was not doing
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business during the relevant period. It is true. However, this court cannot forget the
fact that during 1996 a sum of Rs.300000/- is a huge amount. In the above
circumstance, failure to produce any documents to prove the business and the alleged
transaction with Radhakrishnan is also fatal to the plaintiff's case.
27. Genuineness of an agreement like Ext.A4 is also a suspicious one. As
per the said agreement, one Raman Nambiar purchased in auction, the remnants of an
old dilapidated building, that too except the floor, on 27.2.1996 for a huge sum of
Rs.3,50,000/-. Though in Ext.A4 it is stated that Raman Nambiar purchased the right
to demolish the said building and taken away the remnants of the said building in an
auction held as per the proceedings of the additional Sub court, Thalassery, not even a
scrap of paper was produced to substantiate the said claim. Further, in order to prove
Ext.A4 the plaintiff has not examined the executant of Ext.A4, Raman Nambiar or
any of the witnesses to Ext.A4. Though Ext.A4 mentions about handing over of a
copy of the proceedings of the Additional sub Court, Thalassery, to Raman Nambiar,
it was also not produced in this case. Non-production of the proceedings of the
Additional sub Court, Thalassery as referred in Ext.A4 is also fatal, in the facts of this
case.
28. Though at one stage PW1 deposed that there was no witness to the
transaction, at another stage he claimed that two witnesses were there when
Radhakrishnan issued Ext.A1 cheque to him. Though he had cited several witnesses
to prove the transaction, none of them were examined by stating one reason or
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another. In this case there is absolutely no independent evidence to prove the alleged
transaction with Radhakrishnan. Non-examination of the witnesses who had allegedly
witnessed the execution of Ext.A1 is also fatal in the facts of this case.
29. In the decision in Visvonata Raghunath Audi v. Mariano Colaco,
1976 KHC 1955 in which the Goa High Court held that even the answers given on
minor details relating to the alleged transaction can be used for contradicting a
witness. In paragraph 13, the Court held thus :
"The learned counsel for the appellant argued that the trial Judge unduly
emphasized minor and inconsequential contradictions about the time and
place of payment of the sum. In cases where the transaction consists of a
single act of payment of money. Contradictions on the main issue like
payment of money, cannot be elicited. Even false witnesses never falter on
the principal question ie, the payment of the sum and its quantum. It is
therefore, usual to attack the credibility of such witnesses by eliciting their
answers on minor details related to the alleged transaction. It is only by
questioning the witnesses on the various details that the seemingly solid
wall of falsehood can be breached. In the present case the contradictions
were not minor. On the contrary they were quite revealing. When one
witness said that the transaction took place in the evening while the other
chance witness said that it took place in the morning, by no means it can be
called a minor or flimsy discrepancy."
30. In the decision in Shri.H.D.Vashishta v. Glaxo Laboratories (I) (P)
Ltd., (1978) 1 SCC 170, relied upon by the learned counsel for the appellants, the
Apex Court held that the lack of a material fact in the averments in the plaint is
sufficient to dismiss the suit as not disclosing a cause of action.
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31. Relying upon the decision of the Hon'ble Supreme Court in
S.P.Chengalvaraya Naidu (dead) by LRs v. Jagannath (death) by LRs and
Others, (1994) 1 SCC 1, the learned counsel would argue that since the plaintiff has
not produced documents relating to his business adverse inference is to be drawn
against him. In the decision in Susamma Raju v. K.M.Wilson and Another, 2018
(1) KHC 846, a learned Single Judge of this Court held that in case a party does not
produce a document to prove the money transaction, adverse inference can be drawn
against them. It is true that non-production of documents relating to business and
money transaction is sufficient to draw adverse inference against the defaulting party.
32. In order to substantiate the argument that admission of signature in the
cheque leaf does not amount to its execution, the learned counsel has relied upon the
decision of a learned Single Judge of this Court in Divakaran K.K. v. State of
Kerala and Another, 2016 (4) KHC 901. The law is well settled that admission of
signature in the cheque leaf does not amount to its execution. In the decision in Anil
Kumar Sawhney v. Gulshan Rai, 1993 (4) SCC 424 relied upon by the learned
counsel for the appellants, the Apex Court held that a post dated cheque remains a bill
of exchange till the date written on it.
33. The learned counsel for the appellants would argue that the evidence
adduced without the support of the pleadings cannot be acted upon and relief cannot
be granted based on such evidence. To substantiate the above argument he has relied
upon the decisions in Om Prabha Jain v. Abnash Chand and Another, AIR 1968
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SC 1083, Vinod Kumar Arora v. Surjit Kaur, AIR 1968 (SC) 1083, Messrs.Trojan
and Co. v. RM. N.N.Nagappa Chettiar, AIR 1953 (SC) 235, and Union of India v.
R.Bhusal, 2006 KHC 897. The law is well settled that evidence without the support
of pleading is of no use.
34. The learned counsel for the appellants raised a further contention that
Ext.A1 was materially altered. In support of the argument that a materially altered
negotiable instrument is void and that alteration including correction of the date
amounts to material alteration, the learned counsel has relied upon the decisions in
Sankara Pillai v. Usman Settu, 1963 KLT 241, Allampati Subba Reddy v.
Neelapareddi Ramanareddi, (1966) AIR (AP) 267, Jayantilal Goel v. Zubeda
Khanum, AIR 1986 (AP) 120, Jawahar Trading Corporation v. Ramadas, 1989
(2) KLT 932, Starline Agencies v. R.B.Agencies, 2006 (3) KLT 485, M/s.Goyal
Enterprises v. The State of Jharkhand and Ishta Narayan Mihsra, (2012) 2 BC
629, Lalit Babulal Jain v. Narendra Kumar, (2014) 2 DCR 760, A.Thirumoorthy
v. S.Bastin, (2015) 1 MLJ 335, Annadurai v. Rajendran, (2016) 6 CTC 752 and
G.Vasantha v. Sri.Maharaja Kallash Benefit Fund Ltd, (2017) AIR (Madras) 68.
The law is settled that alteration including correction of the date amounts to material
alteration. It is also settled that a materially altered negotiable instrument is void.
35. In this case, as noted above, the year mentioned in Ext.A1 is not clear
because of spreading of ink. The learned counsel for the respondent/plaintiff would
argue that the contention regarding material alteration pre-supposes execution of a
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valid document and if so, it is to be presumed that Ext.A1 was a validly executed
cheque. The contention of the defendants in their written statement is to the effect that
Murugan had access to the cheque books of Radhakrishnan and he might have
utilized the cheque leaf of Radhakrishnan to help the plaintiff. Since the specific case
of the defendants is as stated above, the contention taken regarding material alteration
in the light of the fact that the year mentioned in Ext.A1 is not legible due to
spreading of ink does not give rise to an impression that the defendants admitted
execution of Ext.A1.
36. Since the suit was filed against the legal representatives of deceased
Radhakrishnan who allegedly had business transaction with plaintiff and issued a
cheque worth huge amount, as held by the Rangoon High Court in Azimullah
(supra) referred above, the burden of the plaintiff is much more than in an ordinary
case against it's drawer. As I have already noted above, in the evidence of PW1 there
are several material circumstances casting serious doubt in the veracity of the plaint
claim. Presence of different inks and handwriting in Ext.A1 was not explained by
PW1. The oral testimony of the plaintiff as PW1 cannot be believed in the light of
those suspicious circumstances. There is also no independent evidence in this case.
The plaintiff also has not produced any documents to prove his business and the
alleged business transaction with Radhakrishnan. Non-examination of available
independent witnesses and non-production of available documents are fatal to the
plaint claim. In the light of the above circumstances, it is to be held that the plaintiff
2025:KER:46030
could not prove that Radhakrishnan had purchased building materials worth
Rs.3,00,000/- from him on 22.3.1996 and towards the repayment of the balance
amount he executed Ext.A1 cheque as claimed. Therefore, the finding of the trial
court that Ext.A1 was issued by Radhakrishnan to the plaintiff towards the discharge
of the liability due to him is erroneous and liable to be set aside. Points answered
accordingly.
37. In the result, this appeal is allowed and the impugned judgment and
decree of the trial court is set aside and the Suit is dismissed. Considering the facts I
order no costs.
All pending interlocutory applications will stand closed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/17.6.
