Kerala High Court
C.S.Sundaran Pillai vs C.S.Vilasini on 21 March, 2025
RSA NO. 931 OF 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946
RSA NO. 931 OF 2016
AGAINST THE JUDGMENT DATED 17.03.2011 IN AS NO.6 OF 2008 OF
PRINCIPAL SUB COURT, THALASSERY
ARISING OUT OF THE JUDGMENT DATED 28.02.2007 IN OS NO.152 OF 2001
OF ADDITIONAL MUNSIFF COURT, KANNUR
APPELLANT/APPELLANT/DEFENDANT:
C.S.SUNDARAN PILLAI
S/O C.N.SANKARA PILLAI, AGED 48 YEARS, CHENNALA HOUSE,
ARABI, P.O.KOLITHATTU, (VIA) KILLIYANTHARA, KANNUR
BY ADVS.
SRI.BLAZE K.JOSE
SMT.DEEPA N.
RESPONDENT/RESPONDENT/PLAINTIFF:
C.S.VILASINI
W/O PRABHAKARAN NAMBIAR, TAPASYA, P.O. PALLIKUNNU,
KANNUR- 670 004
BY ADV SRI.V.RAMKUMAR NAMBIAR
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
21.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The defendant in a suit for recovery of money is the appellant.
The suit was filed on the strength of Ext.A1 cheque by the
defendant. The plaintiff is the sister of the defendant. The
plaintiff pleaded a case of borrowal of Rs.60,000/- by the
defendant - brother and issuance of Ext.A1 cheque.
2. The defendant contended that the plaintiff, being the sister of
the defendant, she was having free access to the house of the
defendant, and she had stolen the Ext.A1 cheque and forged
the same for an amount of Rs.60,000/- and presented the same
to the bank. She did so only on account of the partition dispute
between the parties, in order to compel the defendant to
accede to her demands.
3. The Trial Court decreed the suit, ordering the defendant to pay
an amount of Rs.76,293/- with interest at the rate of 6% per
annum from the date of the suit till realization.
4. The defendant filed Appeal before the First Appellate Court and
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the same was dismissed, confirming the judgment and decree
passed by the Trial Court.
5. I heard the learned counsel for the appellant, Sri.Blaze K. Jose,
and the learned counsel for the respondent, Sri.Ramkumar
Nambiar.
6. The learned counsel for the appellant contended that the Trial
Court as well as the First Appellate Court ought to have found
that the defendant has discharged the burden for rebutting the
presumption available under Section 118(a) of the Negotiable
Instruments Act by adducing sufficient evidence. The learned
counsel invited my attention to Ext.B1 Letter issued by the
Bank, which would reveal that the cheque book, including the
cheque in question, was issued on 21.06.1993, and since the
said cheque book was lost, the defendant obtained a new
cheque book on 20.06.1995. The date of the Ext.A1 cheque is
dated 22.10.1998, which is much later than the date of
obtaining the new cheque book. The learned counsel further
contended that Ext.B6 document issued by the brother-in-law
of the parties, which was produced at the appellate stage,
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would reveal that there existed a partition dispute between the
parties.
7. On the other hand, the learned counsel for the respondent
contended that there is no consistent case for the defendant as
to how the plaintiff came into possession of the Ext.A1 cheque.
In the written statement, the defendant pleaded a case of theft.
Whereas in Ext.B2 lawyer notice, he has stated that the cheque
was kept signed by him and the same was stolen by the plaintiff
and misused the same inserting an amount of Rs.60,000/-.
When the defendant was examined as DW1, he did not
specifically admit or deny the signature in the Ext.A1 cheque.
The Trial Court, as well as the First Appellate Court, has rightly
found that the defendant failed to discharge his burden to rebut
the presumption under Section 118(a) of the Negotiable
Instruments Act, 1881. Only questions of facts alone are
involved in the matter.
8. I have considered the rival contentions.
9. The specific contention of the defendant in the written
statement is that the Ext.A1 cheque was stolen by the plaintiff,
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who is the sister of the defendant and has free access to his
residence. He has no case that a signed cheque was stolen,
whereas, in Ext.B2 lawyer notice, the case of the defendant was
that the defendant had kept two cheque leaves signed in the
cheque book. When the defendant was examined as DW1, he
stated that the signature on the Ext.A1 cheque was identical to
his signature. If he wanted to stick on to his averment in the
written statement, he should have denied the signature on
Ext.A1. If he wanted to stick to the averment in Ext.B2 notice,
he should have admitted the signature, and thereafter, he
should have contended that the same was stolen by the
plaintiff. The written statement and Ext.B2 notice are
contradictory. When DW1 was examined, he did not take a
defenite. It is true that Ext.B6 would show that the defendant
obtained a new cheque book on 20.06.1995 on the ground that
the earlier cheque book issued on 21.06.1993 was lost. But, in
view of the aforesaid inconsistent stand of the defendant, his
evidence is not sufficient to discharge to rebut the presumption
under Section 118(a) of the N.I.Act. The Trial Court, as well as
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the First Appellate Court on facts, found that the defendant
failed to rebut the presumption under Section 118(a) of the
N.I.Act. I do not find a reason to take a different stand in the
matter. No substantial question of law arises in the matter.
Accordingly, the Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shg/-XX
