P SHAMSUDIN Vs. B SHEREEFA SAHIB

JUDGEMENT

(1.) This is an appeal preferred against the judgment and decree in A.S. 127/99 of the Addl. District Judge, Mavelikkara. The suit is one for realisation of the amount. It is the case of the plaintiff that the defendant had borrowed a sum of Rs. 90,000.00 on 12/5/97 and towards the discharge of the liability had issued a cheque and when it was presented for encashment on the same date it returned with the endorsement 'insufficiency of funds' and thereafter the defendant had not discharged the amount and hence the suit for realisation of the amount. On the other hand, the defendant would contend that there was no money transaction between the plaintiff and the defendant on 12/ 5/97 and he had not issued any cheque on the said date towards discharge of the liability for Rs. 90,000.00. According to him he had taken a sum of Rs. 30,000.00 in the year 1994 and at that time had given a blank signed cheque as security for the amount and therefore it is not a cheque issued towards the discharge of the liability of the amount and therefore the suit is to be dismissed.

(2.) In the lower court Exts.Al to 3 and B1 were marked and in the appellate court B2 was also marked. PW1 and DWs. 1 and 2 were examined. The court on an analysis of the evidence decreed the suit in favour of the plaintiff and it had been confirmed by the appellate court. It is against that, decision the present second appeal is filed. From the memorandum of appeal the point that arises for determination is whether any substantial question of law involved in this case which warrants admission under Section 100 of CPC.

(3.) The suit is one for realisation of the amount. It is the case of the plaintiff that the defendant had borrowed a sum of Rs. 90,000 on 12/5/97 and had issued original of cheque Ext.A1 towards the discharge of the liability. When it was presented for encashment on the very same date it was returned with the endorsement 'insufficiency of funds' and hence the suit. The defendant had denied Ext.Al transaction, but would contend that in the year 1994 he had taken a loan of Rs. 30,000/- and was paying it in installments and had discharged the same and a blank signed cheque was given to the plaintiff at the time of taking the loan. PW1, the plaintiff, before the trial court deposed about the advancement of the loan and she would depose that he came in the morning and asked for the loan and being a relative amount was given and no document was also taken. It was also deposed by her that the cheque when presented for encashment returned with endorsement insufficiency of funds. There was also a case under Section 138 of the N.I. Act and at the trial the accused was acquitted, later reversed and remanded by the High Court for proving the source of the complainant.