Kerala High Court
Adam Veettil Muhammed Saleem Madani vs Perinkadakattil Kamal Sherif on 28 May, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:36707
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C. R.
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 28TH DAY OF MAY 2025 / 7TH JYAISHTA, 1947
RFA NO. 610 OF 2011
AGAINST THE JUDGMENT AND DECREE DATED 11-04-2011 IN OS NO.154 OF 2007 OF
SUB COURT, MANJERI
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APPELLANT/DEFENDANT:
1 ADAM VEETTIL MUHAMMED SALEEM MADANI, [DIED; LR IMPLEADED]
S/O.MUHAMMEED, AGED 59 YEARS, KUMBALA AMSOM,
KOYIPPADI DESOM, KASARAGOD TALUK, KASARAGOD DISTRICT.
*ADDL. A2 MOHAMMED IRSHAD C.A., AGED 32 YEARS,
S/O. HMS MADANI, RESIDING AT MADANI MANZIL, CHC ROAD, KUMBLA P.O,
KASARAGOD-671321.
*[ADDITIONAL APPELLANT 2 IS IMPLEADED BEING THE LEGAL REPRESENTATIVE OF THE
DECEASED SOLE APPELLANT, VIDE ORDER DATED 04/03/2025 IN IA 1/2025 IN RFA
610/2011]
BY ADVS.
ENOCH DAVID SIMON JOEL
S.SREEDEV
RONY JOSE
LEO LUKOSE
KAROL MATHEWS SEBASTIAN ALENCHERRY
DERICK MATHAI SAJI
KARAN SCARIA ABRAHAM
ITTOOP JOY THATTIL
RESPONDENT/PLAINTIFF:
1 PERINKADAKATTIL KAMAL SHERIF,
S/O.VEERANKUTTY, AGED 38 YARS, PERIKKARRIL HOUSE, MONGAM AMSOM &
DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.
BY ADV SRI.P.VENUGOPAL
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 28.05.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN & C. R.
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.610 of 2011
= = = = = = = = = = = = = = = = = =
Dated this the 28th day of May, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for money under Ext.A1 agreement was
decreed by the trial court. The defendant is in appeal.
2. According to the plaintiff, he and the defendant
were known to each other and were friends. The defendant
borrowed a total amount of ₹ 30 lakhs from him on
various occasions as hereunder :-
1 01/10/07 ₹ 7 lakhs
2 03/10/07 ₹ 7 lakhs
3 10/10/07 ₹ 5 lakhs
4 15/10/07 ₹ 11 lakhs
Thereafter, Ext.A1 agreement dated 23.10.2007, was
executed by the defendant in his favour, agreeing to
repay the amount. The defendant had also handed over two
post dated cheques for ₹ 15 lakhs each. The cheques when
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presented were dishonoured as "payment stopped by the
drawer". Independent proceedings have been initiated on
the dishonoured cheques. The suit is filed on Ext.A1
agreement, for realisation of ₹ 30 lakhs with interest.
3. The defendant denied of having had any
acquaintance or transactions with the plaintiff. The
averment that the plaintiff and the defendant were known
to each other was also denied. The alleged borrowal,
execution and issuance of Ext.A1 agreement and the
cheques were also denied. It was contended that, under a
ploy by the plaintiff, one Assoo Mayan and one Unneethu,
the defendant was caused to issue blank signed stamp
papers and blank signed cheques under threat and at gun
point. Ext.A1 has been fabricated on such stamp paper.
He prayed for dismissal of the suit.
4. The trial court held that the execution of
Ext.A1 agreement has been proved and that the defendant
has failed to substantiate his case. Accordingly the
suit was decreed.
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5. We have heard learned counsel on either side.
6. The points that arise for determination are:-
(i) Has the plaintiff proved the due execution of Ext.A1
agreement and that it is supported by consideration?
(ii) Did the trial court err in holding that, the execution of
Ext.A1 agreement having been proved, unless the defendant
proves his case, the plaintiff is entitled for a decree?
(iii) Does the decree and judgment of the trial court
warrant any interference?
7. Before we proceed to discuss on the facts and
evidence in the case, we deem it relevant to remind
ourselves that, the suit is laid upon Ext.A1 agreement
and not on a negotiable instrument. In a claim on a
negotiable instrument, on proof of its execution,
Section 118 of the Negotiable Instruments Act comes into
play and there arises a presumption that the instrument
is supported by consideration. Then it is for the
defendant to rebut the presumption. However, when the
suit is not upon a negotiable instrument but upon an
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agreement, the mere proof of its execution does not
entail in any presumption regarding consideration or
truth of the contents. Mere proof of execution of a
document does not amount to proof of the contents and
the truth of the recitals therein. This cardinal
distinction is not to be overlooked.
8. In Ramji Dayawala and Sons (P) Ltd. v. Invest Import [(1981) 1
SCC 80], the Apex Court held :-
"..... Undoubtedly, mere proof of the handwriting of a document would not
tantamount to proof of all the contents or the facts stated in the document.
If the truth of the facts stated in a document is in issue mere proof of the
handwriting and execution of the document would not furnish evidence of
the truth of the facts or contents of the document. The truth or otherwise of
the facts or contents so stated would have to be proved by admissible
evidence, i.e. by the evidence of those persons who can vouchsafe for the
truth of the facts in issue. ....."
In Achuthan Pillai v. Marikar (Motors) Ltd., Trivandrum and others [AIR
1983 Ker 81] a Division Bench of this court after referring
to the judgment of the Apex Court in Ramji (supra) held,
"The truth of the facts stated in the document if denied is to be proved by
admissible evidence Under Section 61 of the Evidence Act, the contents of
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documents are to be proved either by primary or by secondary evidence and under
Section 62 "primary evidence means the document itself produced for the
inspection of the Court". Even on such proof the Court is not bound to accept the
contents, unless it is satisfied about the truth of the matter stated. ". The
aforesaid two judgments were further relied on by
another Division Bench of this Court in Thampy T. V. v. Varkey
Emmanuel (2005) 3 KLJ 144.
9. Therefore, the mere proof of the execution of
Ext.A1 agreement is not proof of the truth of its
contents. When the contents of a document are denied, it
is for the plaintiff to prove the same. Once the
plaintiff has adduced evidence in support thereof, it
would be for the defendant to disprove it. Of course it
would be open for the defendant to rely even on the
plaintiff's case and establish that the plaint claim is
unsustainable. Even in the case of negotiable
instruments where presumption of consideration applies,
presumption can be rebutted by the defendant by even
relying on the evidence adduced by the plaintiff. (See:
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Bharat Barrel and Drum Mfg.Co. v. Amin Chand Payrelal [1999 (3) SCC 35], Mallavarapu
Kasivisweswara Rao v. Thadikonda Ramulu Firm [2008 (6) SCC 39], Joseph v. Gladis Sasi
[2010 (3) KLT 379]. It would all depend on the facts of each
case. Bearing the above in mind, we proceed to analyse
the facts and evidence in the case.
10. It is the plaintiff's case that, he and the
defendant were known to each other for the last ten
years, and that the defendant is a businessman. The said
averment is denied by the defendant. He contended that
the plaintiff is a stranger to him. He also denied the
allegation that he is a businessman. No evidence was
adduced by the plaintiff to support his claim. As PW1,
while cross-examined, he deposed that his acquaintance
with the defendant is in the course of real-estate/land
dealings. However, he admitted that there had been no
land transactions by them. He would claim that the
defendant borrowed the amount for the purpose of real-
estate business. However, he is not aware whether the
defendant purchased any land utilising the said fund.
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The relevant portion reads thus :-
"പ്രതതികക്ക് 30 ലകക്ഷം രൂപ കടക്ഷം കകകൊടുത. പ്രതതികയെ സ്ഥല
കച്ചവടവുമകൊയെതി ബന്ധകപ്പെടക്ക് പരതിചയെക്ഷം ഉണക്ക്. ഞങ്ങൾ 2
പപരക്ഷം കൂടതി സ്ഥല കച്ചവടക്ഷം നടതതിയെതിടതില. ഭൂമതി
കച്ചവടതതിനകൊണക്ക് പ്രതതി എകന്റെ കകയതിൽ നതിനക്ഷം കടക്ഷം
വകൊങ്ങതിയെതക്ക്. എവതികടയുള്ള ഭൂമതി വകൊങ്ങതികകൊനകൊണക്ക് എനക്ക്
അറതിയെതില."
In the course of his evidence, the plaintiff would claim
that the defendant is doing business in spare parts.
However, he is unable to depose about its details. In
further cross-examination he would say that he is
unaware of the business conducted by the defendant but
that the amount was given to improve the business. The
relevant deposition reads thus:-
"എനക്ക് കച്ചവടമകൊണക്ക് എനക്ക് അറതിയെതില. പ്രതതിയുകട കച്ചവടക്ഷം
improve കചയകൊനകൊണക്ക് കപസ കകകൊടുതതക്ക്."
Suffice to notice that, the plaintiff's claim that he
and the defendant were known to each other for long and
that the defendant had some real-estate or other
business etc. are disproved by his own evidence.
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11. The defendant denied of having had any
transaction with the plaintiff. The amount of ₹ 30 lakhs
is claimed to have been paid to the defendant in cash.
The plaintiff as PW1 would depose that the source for
the said amount was from two sources, (i) by borrowing
from one of his friends named Rafeeq and (ii) by sale of
his shares in a Private Limited Company viz. Waynad
Properties Pvt. Ltd. To prove the same he relied on
Exts.A7 and A5 documents. Ext.A7 is the statement of
bank account of one Mr.Rafeeqali K.K. with the Kondotty
branch of State Bank of Travancore. It would show the
withdrawal of an amount of ₹ 6 lakhs on 01.10.2007 by
cash. The withdrawal is by the account holder himself.
There is nothing to show that the said amount was
withdrawn for payment to the plaintiff and that such
amount was in fact paid to the plaintiff.
12. Incidentally it is also relevant to note that,
PW1 in his cross-examination has admitted that he did
not have money with him, to advance to the defendant,
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which caused him to borrow the amount from Rafeeq. He
deposed "01.10.2007 ൽ കകകൊടുത 7 ലകതതിൽ 6 ലകക്ഷം
റഫഫീഖക്ക്അലതിയെതിൽ നതിനക്ഷം ഞകൊൻ കടക്ഷം വകൊങ്ങതിയെതകൊണക്ക്. എകന്റെ കകയതിൽ
കപസ ഇലകൊതതതിനകൊലകൊണക്ക് ഞകൊൻ കടക്ഷം വകൊങ്ങതിയെതക്ക്."
13. It is also relevant to note that though the
plaintiff claims that he had advanced amount to the
defendant after borrowing a portion from one of his
friends, there is no agreement between the plaintiff and
the defendant to pay any interest for the allegedly
advanced amount. As noticed earlier, there is no
evidence to find that the plaintiff and the defendant
were so well acquainted with each other and were close
friends which prompted the plaintiff to advance amounts
to the defendant after borrowing from another person and
that too, without interest.
14. Now coming to Ext.A5, it is only a copy of the
Memorandum and Articles of Association of "Waynad
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Properties Pvt. Ltd.". Going by Ext.A5 there are two
shareholders in the company, one which is the plaintiff.
However, there is no material to show the sale of his
shares to anyone and the receipt of money thereunder.
There is no evidence with regard to the amount for which
the shares were allegedly sold. As PW1 the plaintiff
would claim that the amount was received by him in cash.
He deposed that there are documents available to prove
the sale of the shares for ₹ 25 lakhs. He deposed, "25
ലകക്ഷം കതിടതിയെപപ്പെകൊൾ എകന്റെ കമ്പനതി Share Transfer Register ആയെതി
കകകൊടുത. ഇതതിനുള്ള പരഖ ഹകൊജരകൊകകൊൻ ബുദതിമുടക്ക് ഇല. Register കചയ
തഫീയെതതി ഓർക്കുനതില." However, no such document is produced.
15. It is further relevant to note that the
plaintiff that he is an income tax payee, that the
receipt of ₹25 lakhs by sale of the shares in the
company and the grant of loan of ₹ 25 lakhs are
reflected in his income tax return. He would also state
that there is no difficulty in producing such return.
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Still it is not produced. Though it is claimed that
documents were available with him to prove the alleged
sale of the shares, he has not attempted to produce any
such documents. Withholding of the best evidence tells
upon the plaintiff's case and an adverse inference is
liable to be drawn against him.[See Addagada Raghavamma And
Another v. Addagada Chenchamma And Another (AIR 1964 SC 136), Gopal Krishnaji
Ketkar v. Mohamed Haji Latif & Others (AIR 1968 SC 1413)].
16. Going by the plaintiff's case, the amount of
₹ 30 lakhs was advanced to the defendant on various
dates as noticed first above. Admittedly, the payments
on those dates viz. 01.10.2007, 03.10.2007, 10.10.2007
and 15.10.2007 were without obtaining any security
documents and even without any document evidencing the
grant of such loan. It is very difficult to believe that
amounts of ₹ 7 lakhs, ₹ 7 lakhs, ₹ 5 lakhs and ₹ 11
lakhs etc. would be lend to a stranger on various
occasions without even obtaining any document to secure
or even to evidence the same.
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17. Even going by the plaintiff's case, it was only
on 15.10.2007, when an amount of ₹ 11 lakhs was paid,
thus making the total amount as ₹ 30 lakhs, that he
demanded for some document to secure the debt. According
to the plaintiff, then the defendant said that he shall
give some document later, for which the plaintiff did
not seem to have had any issue. The relevant deposition
reads thus:-
"15.10.2007 ൽ പ്രതതിപയെകൊടക്ക് പരഖ പചകൊദതിച. ഇപപ്പെകൊൾ പരഖ
തരനതില, ഒര ആഴ്ച കഴതിഞക്ക് പരഖയുമകൊയെതി വരകൊകമനക്ക് പ്രതതി
പറഞ."
It is surprising that, even though the plaintiff
demanded for security document, the defendant refused to
give it then and there but agreed to give it after a
week, and the plaintiff readily agreed for the same and
parted with a total amount of ₹ 30 lakhs.
18. Yet another important aspect is that, apart
from the fact that there is no evidence to show the
source of the money, there is no witness for the passing
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of money from the plaintiff to the defendant. PW2 is
only a witness to Ext.A1 agreement. There is no witness
for the payment of money. We do not find the evidence of
PW2 to be reliable. He is a friend of the plaintiff and
claims to have been present at the plaintiff's house
when the defendant reached there. He claimed that he had
went to meet the plaintiff in connection with a land
deal. But admittedly such deal did not happen.
19. It is also relevant to note that PW1 would
depose that the amount was to be repaid within one
month. His deposition reads thus :-
"01.10.2007 നക്ക് പശേഷക്ഷം ഒര മകൊസതതിനുള്ളതിൽ തതിരതിച്ചക്ക്
തരകൊകമനകൊയെതിരന നതിശ്ചയെക്ഷം."
However, on 01.10.2007 only an amount of ₹ 7 lakhs was
advanced and not ₹ 30 lakhs. Further he had no such case
in the plaint or in his chief examination.
20. The plaintiff does not have a case that he had
demanded from the defendant an agreement and also
cheques as security. According to him, the defendant
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brought Ext.A1 agreement and also two cheques. The
handing over of the cheques is also mentioned in Ext.A1
agreement. It is difficult to believe that the defendant
would voluntarily have brought both the agreement and
cheques and even incorporated about the cheques in the
agreement.
21. All the circumstances mentioned above tells
upon the plaintiff's case. The passing of consideration
as claimed by the plaintiff, is found to be highly
improbable in the circumstances mentioned above. The
trial court has failed to take note of the same.
22. Now coming to the defence, according to the
defendant, he is a well-known Islamic Scholar. Many
people used to approach him for advices and prayers. One
Assoo Mayan and Unneethu were two among them. They
informed the defendant that with the help of one Anand
Raj they are going to do business in import of
copper/gold from Tanzania. Subsequently in October, 2007
Unneethu rang up the defendant and said that the
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business plans did not work out and that there had been
some betrayal. The gold powder which they had brought
was detected to be not gold. He was also informed that
he was facing threats form one Kamal Shereef (the
plaintiff herein) and his gang. With the permission of
the defendant, Unneethu took asylum at the residence of
the defendant on 20.10.2007. On 22.10.2007, the
plaintiff and three others dashed into the house of the
defendant on the pretext that they were searching for
Unneethu. However, it was understood that it was a ploy
by all of them together. The defendant was threatened
with a pistol and dagger and his signatures were
obtained on stamp papers and cheque leaves. Documents
relating to his property were also taken away. The stamp
paper and cheque leaves have been fabricated and the
suit has been filed, is the contention.
23. The trial court noticed that, though the
alleged incident was on 22.10.2007, the first complaint
lodged by him before the police was on 25.10.2007 and
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therein the complaint was, "loss of documents". The
trial court also noticed that, there after the defendant
had approached this Court in Crl.M.C. 3582/2007 seeking
a direction to the police to enquire into his complaint.
Complaint alleging the story now put forward was first
lodged by the defendant in the said regard before the
Judicial First Class Magistrate's Court, Kasaragod only
on 16.05.2008. The trial court thus concluded that,
initially the case of the defendant was only that his
documents were lost and it was only on 22.10.2007 that
he developed the present case.
24. With regard to the complaint lodged by the
defendant on 25.10.2007 complaining loss of documents,
it is the case of the defendant that, it was not a
complaint lodged voluntarily by him but that it was
caused to be lodged by Uppala Kaicha who was one among
the gang in the incident. Ext.B3 is the complaint dated
24.01.2008, filed by the defendant before the
Superintendent of Police, Kasaragod, therein he has
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narrated the entire incidents including the complaint he
was made to lodge on 25.10.2007. Ext.A6 is the copy of
the order of this Court in Crl.M.C. 3582 of 2007.
Therein this Court directed the defendant(who was the
petitioner therein) to approach the Magistrate's Court
under Section 156(3) or Section 190 read with Section
200 Cr.P.C. The said direction was on 29.01.2008. It is
thereafter on 16.05.2008, that the defendant approached
the Judicial First Class Magistrate's Court.
25. We called for the original file in Crl.M.C.
3582/2007. We notice that in the said Crl.M.C. Annexure-
1 is a complaint dated 25.10.2007 allegedly lodged by
the defendant on being prevailed upon by Uppala Kaicha
complaining loss of documents. Annexure-3 therein is a
complaint dated 01.11.2007, filed by the defendant
before the Superintendent of Police complaining of all
the above incidents. Before this court in the Crl.MC the
definite allegation of the defendant-petitioner was that
Annexure-1 complaint dated 25.10.2007, was caused to be
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preferred by Uppala Kaicha and it is raising such
allegations he had filed Annexure-3 complaint before the
Superintendent of Police. It is thereupon that
directions was sought to the police to take action on
the offences committed. We refer to this to notice that,
it may not be fully correct to say that after the
incident on 22.10.2007 he did not rush to the police
station and file a complaint but filed a complaint
regarding missing of documents and with such allegation
he approached this Court. It is also to be considered
that it is only possible that if there was such an
incident as alleged by him, he must have been
flabbergasted and must have been under shock and under
fear for his life. Ext.X4(a) is the copy of the register
maintained by one M.M.Tourist Home at Kumbla, which is
the area where the defendant resides. It shows that one
Shareeef from Mongam had stayed there from 1.30 am on
21.10.2007 till 4.00pm on 22.10.2007. Though the
plaintiff disputes the identity of the person, it is to
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be noted that the name of the plaintiff is "Kamal
Sherif", that he hails from "Mongam", and according to
the defendant the incident took place at "3.00pm on
22.10.2007". All these seems to have some relevance.
Suffice to notice that the reasoning given by the trial
court to discard the defendant's case in its entirety,
does not appear to be correct. We make it clear that we
are not to be understood to have held the defence
version as proved. We only notice that the version could
not be brushed aside.
26. As we had noticed earlier, the defendant can
disprove the case of the plaintiff not only on his
defence but also by proving the improbability of the
plaintiff's case. He can even rely upon the evidence of
the plaintiff and disprove his case. The plaintiff
herein has miserably failed to prove the transaction
upon which the suit is filed. The plaintiff is not
entitled for a decree on Ext.A1 agreement. The finding
of the trial court to the contrary is liable to be
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interfered with.
In the result, this appeal is allowed. The decree
and judgment of the trial court are set aside and the
suit will stand dismissed.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
PETITIONER ANNEXURES
ANNEXURE A5 CERTIFIED COPY OF JUDGEMENT DATED 17.03.2015
IN C.C 30/2010 ON THE FILES OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT NO. II MANJERI.
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