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Kerala High Court
Jose Antony vs V.K.Joseph &Amp; Another on 6 July, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM AS.No. 217 of 1997(E)

1. JOSE ANTONY

... Petitioner

Vs

1. V.K.JOSEPH & ANOTHER

... Respondent

For Petitioner :SRI.S.VIDYASAGAR

For Respondent :SRI.K.G.ANIL BABU

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN The Hon'ble MR. Justice
S.S.SATHEESACHANDRAN Dated :06/07/2010

ORDER

THOTTATHIL B.RADHAKRISHNAN

& S.S.SATHEESACHANDRAN, JJ.

--------------------------------------- A.S.No.217 of 1997

--------------------------------------- Dated this the 6th day of July, 2010

JUDGMENT

THOTTATHIL B.RADHAKRISHNAN, J.

The first defendant, in a suit for realisation of amounts due on a cheque, is the appellant.

2. The plaintiff sued alleging that the defendants issued the original of Ext.A1 cheque dated 20.2.1990, drawn on
the Catholic Syrian Bank, Ponkunnam Branch for an amount of Rs.1,50,000/-, which cheque, on presentation,
was returned dishonoured for insufficiency of funds. He pleaded that he caused issuance of a lawyer notice to the
first defendant which was returned unserved and he is entitled to realise the amount due as per the cheque, with
interest at 18% per annum thereon.

A.S.No.217 of 1997

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3. The 2nd defendant remained ex parte. The 1st defendant, who is arrayed as the 2nd respondent in this appeal,
has not responded to notice by paper publication, though the learned counsel for the appellant/1st defendant
states, on query by this court, that the 2nd defendant is the brother of the appealing first defendant..

4. The 1st defendant contested the suit by contending that no cheque was issued in favour of the plaintiff as
pleaded in the plaint, and that there was a joint account maintained by the defendants in the Catholic Syrian Bank
in connection with the operation of a bus "Highland Motors' which the defendants were conducting on a
partnership basis in Pala-Erumely and Pala-Vizhikkathodu routes upto 2.2.1987, and that bag containing a
cheque book issued by the Catholic Syrian Bank was lost in 1986 from Pala, from the custody of the 1st defendant
and that some of those cheque leaves were signed, while others were unsigned. According to A.S.No.217 of 1997

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the 1st defendant, he addressed a letter to the Catholic Syrian Bank to close the account, on 18.5.1986 and
thereafter, neither he nor the 2nd defendant had any business with that bank and that he does not know how the
original of Ext.A1 came into the possession of the plaintiff. It is his further contention that he presumes that the
plaintiff somehow or the other got possession of one of the lost cheques and inserted the figures and date and
presented it to the bank for collection. He pleaded that the cheque is not supported by consideration and the
plaintiff is not entitled to the amount claimed. He further pleaded that no notice was delivered to him and the 2nd
defendant, who works in Soudi Arabia from 1990. It is also his plea that the plaintiff had filed a criminal
complaint against the 1st defendant before the Judicial Magistrate of the First Class, Vaikom and he was convicted
by the learned Magistrate. While the suit was pending, the 1st defendant had filed a criminal appeal to the Court of
Session. A.S.No.217 of 1997

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It is stated by the learned counsel appearing for the 1st defendant that the criminal appeal has since been allowed,
acquitting the first defendant.

5. The plaintiff gave evidence as PW.1. PW.2 was cited to prove the delivery of the cheque by the 1st defendant to
the plaintiff and the payment of money by the plaintiff to the 1st defendant. The 1st defendant tendered evidence as
DW.1.

6. The court below, which had the opportunity to see the witnesses and observe their demeanour, marshalled the
evidence, drew inferences and on appreciation of evidence, concluded that the plaintiff was entitled to a decree and
the 1st defendant's plea that he had lost a bag with the cheque book containing signed and unsigned cheque leaves
is absolutely untrue and that such plea was taken to escape from the liability to make payment due under Ext.A1
cheque. The suit was accordingly decreed.

A.S.No.217 of 1997

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7. In support of the appeal, the learned counsel for the 1st defendant argued that the decree is only to be vacated in
view of the fact that what has been produced as Ext.A1 is only, a photo copy of a cheque and not the original
thereof and a decree on that document ought not to have been passed. It is pointed out that the admission of the
said document in evidence was an issue agitated before the court below and such objection ought to have been
upheld by the court first instance. It is next contended that the plaintiff has no case that the partnership
"Highland Motors" had any liability to him and therefore, the cheque shown to be issued from the
account of that firm is not supported by any consideration whatsoever and hence the same could not have been
made the foundation of a suit. Thirdly, it is argued that the court below wholly erred in the matter of appreciating
the evidence, particularly the evidence of PW.1 on the face of the consistent version of DW1- 1st defendant and the
sequence of A.S.No.217 of 1997

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events which tend to show that the case of the plaintiff regarding the issuance of Ext.A1 is wholly artificial.

8. Ext.A1 is not merely a Photostat copy, as referred to in the impugned judgment. We have examined Ext.A1. It is
only a certified photostat copy issued by the Court of Session, before which the Criminal Appeal filed by the 1st
defendant was pending. Admittedly, that criminal proceeding was on the basis of the very same cheque. The
certified copy issued from the court where the original was available is an admissible piece of secondary evidence.
The plaintiff as PW.1 spoke that the original of the said document is in the custody of the Court of Session and that
he obtained Ext.A1 certified copy from the Sessions Court. Therefore, there was clear foundation for admission of
that secondary evidence to record. We do not find any illegality in the court below having admitted Ext.A1 in
evidence. Further, we also note that the admission of Ext.A1 and the marking of that A.S.No.217 of 1997

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document was not objected to when the marking was sought, during the course of examination of PW.1. During

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cross- examination of PW.2 and during his own examination as DW.1, the 1st defendant has vouchsafed the
signatures occurring in Ext.A1 as that of himself and that of the 2nd defendant, and that the said cheque leaf
related to the joint account that they had maintained with the Catholic Syrian Bank.

9. On to the question whether the plaintiff ought to have shown that the cheque was issued in discharge of any debt
due to him by the partnership firm, we find that neither in the written statement nor in his evidence, the 1st
defendant as DW1 has a case that the account with the Catholic Syrian Bank was one opened and operated in the
name of any partnership firm. It is a joint account in the name of defendants 1 and 2. All that we can gather from
the evidence of the 1st defendant as DW.1, as also his written statement is A.S.No.217 of 1997

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that the defendants operated that bank account for the purpose of their business which, according to them, was a
partnership in the name "Highland Motors". There is nothing on record, even on the face of Ext.A1 to
show that the cheque was issued by a partnership of a firm. We, accordingly, overrule that argument also.

10. On the appreciation of evidence, we find considerable force in the view taken by the court below that while the
1st defendant pleaded that the bag that was lost from the bus contained a cheque book of Catholic Syrian Bank, in
court, he developed a case that the said bag contained a cheque book of Catholic Syrian Bank and another cheque
book issued by the Syndicate bank. We also notice that the sequence of events, as discernible from the 1st
defendant's written statement and his evidence as DW.1 is that some time in 1986, the bag was lost from the bus.
According to him, the motor transport operation of Highland A.S.No.217 of 1997

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Motors was only till 2.2.1987. It is the 1st defendant's case that on 18.5.1986 he had informed the Catholic Syrian
Bank that the account may be closed. Ext.A1 cheque is dated 20.2.1990. The bank did not dishonour that cheque
as being one issued from a 'closed account'. It is dishonoured on account of deficiency of funds in the account. This
means that even as per the bank records, the account was alive. Equally, it has also to be noted that the appealing
1st defendant made no effort to prove that there was any request to the bank to close the account or that the
accounts no more survived in 1990. Not only that, there is no shred of material to show that the 1st defendant, who
pleads that signed cheque leaves were lost in 1986, had made any complaint or had lodged any information with
the police authorities or with the Catholic Syrian Bank or Syndicate Bank about the so called loss of cheques, that
too signed ones. No stop memo is also shown to have been issued. The appealing 1st defendant and A.S.No.217 of
1997

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2nd defendant were involved in the commercial activity of running a motor service. Any person of ordinary
prudence, going by the smooth human conduct, would have acted promptly and diligently by giving written proper
information to the bank and the police authorities regarding any cheques/cheque leaves lost from his custody.
This assumes more significance when it is said by the 1st defendant that he and the 2nd defendant had kept signed
blank cheques in the bag that was lost. With no such materials forthcoming, we do not find any ground to differ
from the conclusions arrived at by the court below. Hence, we are of the view plaintiff's case is proved by the
totality of the evidence and continues to be supported by the presumption available in relation to Ext.A1 cheque in
terms of the provisions of the Negotiable Instruments Act, the quality of which, with reference to Section 118(a)
thereof, has been succinctly enunciated by the Supreme Court in the often quoted classics in Kundan Lal v.
A.S.No.217 of 1997

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Custodian, Evacuee Property {AIR 1961 SC 1316}. We may profitably quote paragraph 5 of that judgment, dilating
on the special rule of evidence under Section 118 of the Negotiable Instruments Act, which reads as follows:
"This section lays down a special rule of evidence applicable to negotiable instruments. The presumption is
one of the law and thereunder a court shall presume, inter alia, that the negotiable instrument or the endorsement
was made or endorsed for consideration. In effect, it throws the burden of proof of failure of consideration on the
maker of the note or the endorser, as the case may be. The question is, how the burden can be discharged? The
rules of evidence pertaining to burden of proof are embodied in Chapter VII of the Evidence Act. The phrase
"burden of proof" has two meanings - one the burden of proof as a matter of law and pleading and the

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other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is
unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient
evidence to raise a presumption in his favour. The evidence required to shift the A.S.No.217 of 1997

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burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by opposite
party; it may comprise circumstantial evidence or presumptions of law or fact. To illustrate how this doctrine
works in practice, we may take a suit on a promissory note. Under S.101 of the Evidence At, "Whoever
desires any Court to give judgment a sto any legal right or liability dependent on the existence of facts which he
asserts, must prove that those facts exist". Therefore the burden initially rests on the plaintiff who has to
prove that the promissory note was executed by the defendant. As soon as the execution of the promissory note is
proved, the rule of presumption laid down in S.118 of the Negotiable instruments Act helps him to shift the burden
to the other wise. The burden of proof as question of law rests, therefore, on the plaintiff; but as soon as the
execution is proved, S.118 of the Negotiable Instruments Act imposes a duty on the Court to raise a presumption in
his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the
second sense, that is, the burden of establishing a case shifts to the defendant. The defendant may adduce direct
evidence to prove that the promissory note was not supported by consideration, and, if he A.S.No.217 of 1997

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adduced acceptable evidence, the burden again shifts to the plaintiff, and so on. The defendant may also rely upon
circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift
against to the plaintiff. He may also rely upon presumptions of fact, for instance those mentioned in S.114 and
other sections of the Evidence Act. Under S.114 of the Evidence Act, "The Court may presume the existence
of any fact which it thinks likely to have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to the facts of the particular case."
Illustration (g) to that section shows that the Court may presume that evidence which could be and is not produced
would, if produced, be unfavourable. To the person who withholds it."

11. With the aforesaid, the plaintiff having discharged the initial burden attendant to the delivery of the cheque on
the basis of the evidence tendered by him as PW.1, corroborated by PW.2 that he saw the cheque being delivered
and on the basis of the admissions of DW.1, the signatures on A.S.No.217 of 1997

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the cheque are that of defendants 1 and 2, we find no rebuttal evidence to the aid of the appealing 1st defendant.
For the aforesaid reasons, the appeal fails. The same is accordingly dismissed with costs throughout. The amount
in deposit in terms of the interim orders shall be released to the plaintiff forthwith by the court below, without
waiting for any execution petition being filed or proceeded with.

Sd/-

(THOTTATHIL B.RADHAKRISHNAN)

JUDGE

Sd/-

(S.S.SATHEESACHANDRAN)

JUDGE

sk/

//true copy//

P.S. to Judge.

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