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TMI Blog2025 (3) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial court. 4. According to the plaintiff, the defendant and her husband, Sri.Suresh Babu, approached the plaintiff at his residence in the month of January, 2005 and borrowed an amount of Rs.3,00,000/- in connection with the construction of their house. Further case of the plaintiff is that, the defendant promised to repay the amount within four months and accordingly cheque dated 31.05.2005 drawn on Ex-Service Co-operative Bank, Pazhayangadi was issued in discharge of the said liability. According to the plaintiff, though the cheque was accepted and presented for collection, the same got dishonored for insufficient fund. Though, legal notice of demand was issued to the defendant intimating the dishonor of the cheque, the defendant sent a false reply notice, without repaying the amount. 4. The defendant appeared and filed written statement. The main contentions raised by the defendant which would appear in paragraph Nos. 3 and 5 of the written statement are extracted as under: "3. It is humbly submitted that, the defendant has not executed any promissory note infavour of the plaintiff as alleged in the plaint. Infact this defendant is in receipt of a copy of plaint from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff herein, manipulated the said cheque leaves by forging the signatures of this defendant and her husband." 5. On the above pleadings, the trial court raised necessary issues and tried the matter. PW1 examined and Exts.A1 to A11 marked on the side of the plaintiff. No oral evidence let in by the defendant. Exts.B1 to B7 marked on the side of the defendant. 6. On anxious consideration of the evidence tendered, the learned Sub Judge granted decree as under: 1. Suit is decreed. 2. Plaintiff is allowed to realise an amount of Rs.3,00,000/- from the defendant and her assets with interest at the rate of 12% per annum from the date of suit till the date of decree and thereafter with interest at the rate of 6% per annum till realisation. 3. Plaintiff is also allowed to realise the costs of the suit from the defendant. 7. The learned senior counsel appearing for the defendant/appellant argued that, in the instant case, the entire finding of the trial court is relying on the ratio of the decision of this Court in Mohammed v. Velayudhan & Another, reported in [2001 (1) KLT 392]. In Mohammed's case (supra) this Court held in paragraph Nos. 8 and 9 as under: "8. Durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der it complete as a deed or an instrument importing the intended obligation of every act required to give the instrument validity, or to carry it into effect or to give it the forms required to render it valid. Thus, the signature is an acknowledgement that the person signing has agreed to the terms of the document. This can be achieved only if a person signs after the document is prepared and the terms are known to the person signing. In that view of the matter, mere putting of signature cannot be said to be execution of the document." 8. According to the learned senior counsel for the defendant, in this matter, the specific contention raised by the defendant before the trial court was that she did not receive, execute or sign the cheque marked as Ext.A1 in question and further, the certified copy of the cheque alone was marked. According to him, the original of the cheque, which was produced before the Judicial First Class Magistrate Court, Payyannur, was sent to expert opinion at the instance of the defendant, who is the accused therein, and in the report, it was found that the signature in the cheque was not put by the defendant, after comparing the standard and specimen sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raman stood as a surety to her husband for availing a loan from the Kerala State Financial Enterprises, Kannur Branch and he had repaid the amount, as her husband had defaulted in repaying the amount. In order to discharge the liability, the husband of the defendant transferred his undivided right in the ancestral property in favour of Sir.Kunhiraman, on condition that the same would be reconveyed in favour of him, on repayment of the said amount. Anyhow, Sri.Kunhiraman refused reconveyance of the property as agreed and the case of the defendant is that Sri.Vijayakumar had stolen the present cheque which was not signed, and misused the same for the purpose of this case. The learned counsel for the plaintiff submitted further that, after the production of the cheque before the Magistrate Court in a criminal case filed by the plaintiff herein against the defendant, the defendant had disputed her signature and accordingly the same was sent to get expert opinion. That apart, in the written statement also, the specific contention pleaded by the defendant is to the effect that the signature in the cheque was not put by her. 12. In view of the rival arguments, the questions arise for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question was asked to the effect that whether the cheque was presented for collection after getting advocate notice issued by the defendant alleging that the plaintiff was attempting to institute legal proceedings by using stolen cheques and documents, PW1 denied the same. 16. In the instant case, Ext.A1 cheque got dishonored on 01.08.2005 and on 02.08.2005 Ext.A3 demand notice was issued, for which the defendant issued Ext.A8 reply notice. During cross-examination of PW1, a suggestion was made by the counsel for the defendant denying the transaction as well as issuance of cheque and the signature therein, but, PW1 denied the said suggestion and asserted that the defendant issued Ext.A1 cheque towards payment of the amount borrowed by her and her husband from the plaintiff. In fact, the defendant did not mount the box to give evidence in support of her contentions. Therefore, the trial court took adverse inference against the defendant following the ratio in Vidyadhar's case (supra). 17. In a suit for money based on cheque, no doubt an initial burden is cast upon the plaintiff to prove the transaction, led to execution of the cheque. In such a suit, if the transaction leading to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) to (g) of the NI Act were rebutted. In the instant case, as rightly found by the trial court, the defendant did not mount the box, rather tendered Exts.B1 to B7 in the form of documentary evidence. 21. On reappreciation of the available evidence, the case of the plaintiff as to borrowing of Rs.3,00,000/- during the month of January, 2005, by the defendant and consequential issuance of Ext.A1 cheque dated 31.05.2005, were proved by the evidence of PW1, since the substantive evidence given by PW1 in this regard was not shaken. The defendant, in fact, had inconsistent contentions. That is to say, before filing the written statement, when Exts.A6 and A8 notices were issued, the case of the defendant was that the plaintiff was attempting to misuse the blank signed papers and blank signed cheques of the defendant, stolen away by Sri.Vijayakumar. But, thereafter in the the written statement even the signature in the cheque was also denied. 22. It is the well settled law that, when a fact is disputed, the evidence to prove the same is substantive evidence, though corroborative evidence also can be adduced to support the substantive evidence. Indubitably, corroborative evidence will n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered necessary, the Appellate Court shall have the same powers as it has under rule 23. 25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.-Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time. 17. Thus, power vested in an appellate court under Order XLI Rule 25 of the CPC can be exercised if the court finds that the trial court has omitted to frame or try any issue, or to determine any question of fact, which is essential to the right decision of the suit upon merits. In such case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general rule, if appellate court can do complete justice on the basis of the record before it, the appellate court must not remand the case as it will entail more time and money of the litigants. A remand order may be proper in the cases of irregular, illegal or defective proceedings before the lower court and where vital or essential points have been ignored or not touched upon. A remand order should be carefully passed. An appellate court should decide matters finally instead of remanding the cases, unless there is a chance of miscarriage of justice. In the event that oral and documentary evidence is already on record and the parties had satisfactorily availed the opportunity of leading evidence, the case must be decided by the appellate court and should not be remanded. Where evidence on record was sufficient for appellate court to decide the matter itself, remand could not be ordered and discretionary power was to be used only in exceptional situation. Only those cases could be remanded which could not be decided on the basis of available material on record. If the controversy could be resolved on the basis of available evidence, then the question of remand would not arise. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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