R.S.A No. 785 of 2004 · Kerala High Court

RSA.785/2004- 2 -2. The appellant, who was the sole defendant before thetrial Court and appellant before the first appellate Court, challengesthe decree and judgment passed in the suit for recovery of money, asconfirmed in first appeal. 3. The plaint allegation was that the defendant hadborrowed an amount of Rs.20,000/- from the plaintiff after executingExhibit A1 Demand Promissory Note. The Demand Promissory Notewas handwritten by P.W.2, who was examined before the trial Courtas the scribe of the document. P.W.3 was the witness to thedocument, who also deposed before the Court below in accordancewith the case set up by the plaintiff. P.Ws 2 and 3 consistentlydeposed that the defendant had come to the plaintiff's house and hadreceived an amount of Rs.20,000/- after executing Exhibit A1document. It was also contended that the said loan was availed inview of the marriage of the defendant.4. The defendant, however, totally denied the transactionand contended that he had, in fact, taken a loan of Rs.5,000/- fromone Kamarudheen and that, having repaid the said amount, when theblank stamp paper on which he had signed was asked to bereturned, the said Kamarudheen expressed his helplessness, sincethe document was handed over to the plaintiff.

The defendant RSA.785/2004- 3 -contended that the signature in Exhibit A1 was a forged one and theplaintiff had created such a document with the help of P.W.2 andP.W.2 had copied the signature from the blank stamp paper given to Kamarudheen.5. The trial Court decreed the suit, which was confirmedin appeal by the first appellate Court.6. It is pertinent that the defendant did not choose toexamine the said Kamarudheen. The defendant also did not makeany attempt to verify the authenticity of the signature by an expert. Both the Courts below looked at the signatures and found that thedefendant's signature varies considerably in all the documents. Thedefendant had also set up the contention that he puts his signaturealong with his name. However, in the acknowledgement cardproduced along with Exhibit A2 notice, it is seen that the name of thedefendant does not appear along with the signature.7. In the context of the questions of law framed by this Court, what is to be examined is the discrepancy in the evidence ofP.W.2 and P.W.3, projected by the appellant herein as being materialand destructive of the case set up by the plaintiff.

P.W.2, the scribe, had stated categorically that he had seen the execution of thedocument. He had also stated that the defendant, according to his RSA.785/2004- 4 -understanding, had availed of the loan for the purpose of thedefendant's marriage. Exhibit A1 is dated 10.1.2000. However, thediscrepancy projected by the defendant is that P.W.2, in the box, stated that the transaction occurred about four years back. Thedefendant's marriage, admittedly, was on 31.01.2000, immediatelyafter the loan was availed on 10.1.2000. The mere fact that P.W.2stated that the transaction occurred about four years back cannot beprojected as a major discrepancy casting aspersions on theexecution of the document. Likewise, P.W.1 said that P.W.3 andhimself had business arrangements and on that particular day P.W.3had come to the house of P.W.1 to pay Rs.5,000/- to the plaintiff. Inthe box, P.W.3 deposed that it was around Rs.4,500/-. That againcannot be seen as a discrepancy casting doubts on the execution ofthe document.

That transaction was independent of the subjectmatter of the above suit. It is only natural that by passage of time thewitnesses are not able to state exactly as to what had transpired. Theexecution stands established as found by both the Courts below. Thediscrepancy pointed out by the appellant herein does not amount toone which would enable this Court to exercise the jurisdiction under Section 100 of the Code of Civil Procedure to upset the findings offact entered into by the courts below. The reliance placed on the RSA.785/2004- 5 -presumption available under Section 118 of the NegotiableInstruments Act also cannot be faulted, since the execution of thecheque was established. Hence, questions of law (i) and (ii) arefound against the appellant and in favour of the respondent.8. With respect to question of law No.(iii) framed by this Court, it is to be noticed that the transaction between the plaintiff andthe defendant was not a commercial transaction.