IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

FRIDAY, THE 15TH DAY OF JUNE 2012/25TH JYAISHTA 1934S

RSA.No. 25 of 2012 ()

--------------------- AS.343/2010 of I ADDL. DISTRICT COURT,TRIVANDRUM OS.208/2007 of PRL.SUB COURT,TRIVANDRUM

APPELLANTS/RESPONDENT/DEFENDANT: -------------------------------

ABDUL RAHIM

AGED 45, S/O.MUHAMMED ABDUL KHADER, KHADER COTTAGE T.C.36/1136, VALLAKKADAVU P.O., THIRUVANANTHAPURAM PIN-695 008.

BY ADVS.SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN

RESPONDENT/APPELLANT/PLAINTIFF: -------------------------------

MAGLIN AGED ABOUT 40, D/O.REETHA MARKOSE, T.C.33/407 THYVILAKOM HOUSE, VETTUKAD, THIRUVANANTHAPURAM PIN-695 007.

BY ADV. SRI.SUMAN CHAKRAVARTHY BY ADV. SMT.K.R.RIJA

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

THOMAS P. JOSEPH, J.

---------------------------------------- R.S.A.No.25 of 2012

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Dated this 15 th day of June, 2012

JUDGMENT

Defendant in O.S.No.208 of 2007 of the Principal Sub Court, Thiruvananthapuram is aggrieved by the decree against him passed by the learned Additional District Judge-I, Thiruvananthapuram in A.S.No.343 of 2010.

2. Respondent sued the appellant for recovery of money based on a self drawn cheque dated 21.12.2005, dishonoured for insufficiency of funds and since payment was stopped on 20.01.2006. Respondent issued notice to the appellant on 06.02.2006 demanding payment of the amount. It was served on the appellant on 15.12.2006. Since the amount was not paid, respondent sued for recovery of money.

3. Appellant contended that he is a private bus operator and that he had no liability towards the respondent. He had not borrowed any amount from the respondent, nor issued any cheque to her. He had kept a self drawn cheque for `.1,40,000/ signed by him in the drawer of the table in his office. Freddy, the brother of respondent used to visit his office in connection with his part-time work there. Freddy stealthily took away the self drawn cheque and it was misused. Appellant gave a reply in that line to the respondent to the latter's notice dated 06.02.2006.

4. Respondent gave evidence as PW1 and spoke to her case. She proved Exts.A1 to A6. Appellant gave evidence as DW1 and denied the allegations against him. He proved Exts.B1 to B5.

5. Trial court found the version of respondent improbable and consequently dismissed the suit. First appellate court found that it is the version of the appellant which is improbable, accepted the case of respondent and granted a decree. That judgment and decree are under challenge in this second appeal.

6. Learned counsel for appellant contends that since the respondent is not a holder in due course coming under Sec.9 of the Negotiable Instruments Act (for short, "the Act"), presumption under Sec.118 of the Act is not available to her. According to the learned counsel, version of the respondent as to the transaction does not inspire confidence and at any rate, the presumption if any is rebutted by the appellant by his oral and documentary evidence and the circumstances emerging in the case. Learned counsel has placed reliance on the decisions in Kundan Lal Rallaram Vs. Custodian, Evacuee Property, Bombay (AIR 1961 SC 1316), Jiten Barkakoti Vs. Subrata

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Patangia (2006(1) KLT 674 (Gauhati H.C) and Gemini Vs. Chandran (2007(2) KLT 439).

7. It is not very much in dispute that the cheque in question is a self drawn cheque dated 21.12.2005, it was presented by the respondent and dishonoured on 20.01.2006 due to insufficiency of funds and as payment was stopped by the appellant. Respondent issued notice to the appellant on 06.02.2006, it was served on the appellant on 15.02.2006 and on 02.03.2006, appellant gave a reply to the respondent. Respondent in her evidence as PW1 stated that appellant borrowed the amount from her and for the discharge of that liability, issued the self drawn cheque dated 21.12.2005. Ext.B3 is a copy of complaint respondent had preferred to the Women's Commission alleging that appellant had been sexually exploiting her on a promise to marry but, later it was revealed that appellant has wife and children. That complaint is dated 25.03.2006. In that complaint, it is stated that respondent had altogether given the appellant sum of `.2,65,000/-. It also came out in the evidence of the respondent that on 05.02.2005 she was assaulted by the appellant. Trial court took the view that it is unlikely that appellant would issue a self drawn cheque dated 21.12.2005 to the respondent since the relationship between them got strained by the incident on 05.02.2005. A further circumstance the trial court took into consideration is that if the cheque was actually issued to the respondent, it would have been issued in her name.

8. On the other hand the first appellate court took the view that it is difficult to think that appellant who claims to be operating a private bus would keep a signed self drawn cheque for `.1,40,000/- in the drawer enabling anybody to present it and encash. First appellate court also observed that it is admitted by the appellant in his evidence as DW1 that the cheque was written in his hand. A further fact the first appellate court took notice is that if actually the cheque was stolen from the custody of appellant as he pleaded, it was quite possible that appellant would have preferred a complaint against Freddy who was took the cheque from his custody but, no such complaint was preferred by the appellant.

9. The decision in Kundan Lal Rallaram Vs. Custodian, Evacuee Property, Bombay (supra) is to the effect that rebuttal of presumption under Sec.118 of the Act could be by relying on the circumstance proved in the case. In Jiten Barkakoti Vs. Subrata Patangia (supra) the Gauhati High Court while dealing with a complaint under Sec.138 of the Act held that so far as a self drawn cheque is concerned, Secs.118 or 139 of the Act is not applicable as the complainant is neither a payee nor a holder in due course. This Court in Gemini Vs. Chandran (Supra) has, referring to a complaint under Sec.138 of the Act held that the expression "holder" is used in Sec.139 so that the presumption under the said section shall be drawn in favour of the complainant, only if it is established by evidence that he is the "holder" of the cheque as defined in Sec.8.

10. It is relevant to refer to the decision in Michael Kuruvilla Vs. Joseph J.Kondody (1998(1) KLT 384) where ofcourse it was a cash cheque after striking off the expression "or bearer". In paragraph 11 it is held that under Sec.9 of the Act, "holder in due course" means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if payable to order, before the amount mentioned in it became payable and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.

11. In this case assuming that respondent is not entitled to the presumption under Sec.118 of the Act for the reason that the cheque in question is a self drawn cheque, as I have stated above, it is not disputed that respondent presented the cheque for encashment. How did that cheque happen to be in the custody of the respondent?. Was it issued by the appellant as respondent claimed or was it stolen by the brother of the respondent?.

12. Freddy who is said to have been working with the appellant on part time arrangement and who is said to have stolen the cheque was not examined. Appellant had to establish the case of alleged theft. For reason known to the appellant, that was not done. It is pertinent to note that though the cheque is dated 21.12.2005, it was presented much later and dishonoured only on 20.01.2006. Was the appellant unaware that the cheque dated 21.12.2005 was missing from that day until he was slammed with a notice of dishonour dated 06.02.2006 (it was served on the appellant on 15.02.2006)?. If I am to accept the conduct of appellant, I must think that appellant was unaware of the missing of the cheque dated 21.12.2005 (which should have been drawn on that day atleast until he received notice from the respondent on 15.02.2006 and still, to give a reply to the respondent, he waited till 02.03.2006. That is not a conduct expected of a reasonable and prudent man. If actually the cheque was stolen, appellant would have learned it immediately after 21.12.2005. Appellant has given a stop memo to the bank but it is admitted that in the stop memo there was no mention that the cheque was stolen by Freddy.

13. Now, reliance is placed on Ext.B3, complaint preferred by the respondent to the Women's Commission. That complaint, I stated is dated 25.03.2006. The date of transaction as the respondent would say in court is June, 2005 ie, much before filing of the complaint on 25.03.2006. The assault stated by the respondent in Ext.B3, complaint was on 05.02.2005. Trial court held that if there was such an assault on 05.02.2005 there would not have been any transaction in June, 2005 followed by appellant issuing self drawn cheque to the respondent. Certainly that is one way of looking at the matter but, that is not the only way of looking at it. Respondent has a case though, in her evidence that she had given a complaint to the Jama Ath after the incident on 05.02.2005. That, she has stated in Ext.B3, complaint also, in paragraph 9.

14. I must notice the close intimacy appellant and respondent had as the latter claims in Ext.B3. A reading of Ext.B1 would show how intimate appellant and the respondent were until atleast respondent learned that appellant, according to her, was cheating her as he has wife and children. In such circumstance, merely because some incident had taken place on 05.02.2005, it could not be said that later respondent and appellant could not patch up and entered into a transaction in June, 2005.

15. That, the cheque was not drawn in the name of respondent by itself is no ground to disbelieve the version of respondent. The version of appellant that the cheque was stolen was disbelieved by the first appellate court. That is a finding of fact by the first appellate court on an appreciation of evidence. First appellate court believed the version of the respondent.

16. I have gone through the judgments of the trial and first appellate courts. First appellate court has considered the various circumstances including the close intimacy between the parties, held that the finding of trial court on facts is not correct and reversed its decision. That being a finding of fact based on evidence. I am not satisfied that any substantial question of law is involved in this appeal. Therefore even if it is assumed that respondent is not entitled to get presumption under Sec.118 of the Act, the decision of first appellate court on facts could be sustained.

The second appeal is dismissed.

(THOMAS P. JOSEPH, JUDGE)

Sbna/-

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