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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 ..... en statement even the signature in the cheque was also denied. 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 not stand unless there is no substantive evidence. In the instant case, the substantive evidence as that of the plaintiff in the matter of transaction, which led to execution of Ext.A1 cheque was not shaken during cross-examination. Therefore, presumptions under Section 118 (a) to (g) of the NI Act is to be adjudged in favour of the plaintiff. The inconsistent case put up by the defendant is not supported by even remote piece of evidence and therefore the said case not at all established, inturn the presumptions in favour of the plaintiff not rebutted. In such view of the matter, the trial court rightly granted decree. In fact, the said verdict does not require any interference. In view of the above, remand cannot be made merely for the purpose of enabling a party to fill up the lacuna in the evidence. Accordingly, the remand plea at the instance of the learned counsel for the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 this Hon'ble court in which the plaintiff has alleged that, the above suit is based on a cheque issued by the defendant. This defendant would like to submit that. the plaintiff is a total stranger to the defendant and as such the defendant had no occassion to execute any instrument in his favour. The documents, if any, produced along with the plaint projecting the same as 'cheque' or promissory note must be a concocted document. As such, the plaintiff is not entitled to get any decree on the basis of the said document. xxx xxx xxx 5. It is submitted that, one M.V.Vijayakumar, being a co-worker and the family friend of the husband of this defendant, used to visit the residence of the defendant, and had developed a close connection and intimacy with the other family members of the defendant. Later stage, there was some disputes between the husband of this defendant and one P.Kunhiraman, who is the uncle of the said Vijaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. During the discussion of this case, we found three types of cases: (1) When defendants merely submitted that signed papers were entrusted to a person and those papers were made use of for the purpose of executing an agreement. (2) The signed papers were given on the understanding that a particular document will be made. But contrary to that assurance, a different document was fabricated. (3) There are third sets of cases where the defendants even though have signed the documents, never intended to bring it in force. The Patna High Court while taking the view that presumption cannot be in favour of the plaintiff held that presumption under S.114 of the Evidence Act and the illustrations given there "are based on long experience and have been drawn so often by judges in England as well as in this country that many of them have come to be regarded almost as rules of law. The same however cannot be said with regard to the presumption, which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 signatures forwarded for comparison. 9. The learned senior counsel for the defendant argued further that, in this matter, the trial court had given emphasis to Ext.A6 and A8 notices issued by the defendant, where the defendant took contention that "at about 08.00 pm on 19.07.2005, the plaintiff telephoned and threatened her stating that, some of her signed papers are with him and it would be used against her, if the litigation between the husband and one Mr. Parayil Kunhiraman would not be settled". Further, it was averred by the defendant in the notice that, "Sri. Vijayakumar, who is a colleague of her husband, had free access to their house and when the relationship between Sri.Vijayakuar and her husband was strained, Sri.Vijayakumar had taken away some of her singed papers and of her husband, including signed cheque leaves and he has forged some of these cheques and used through his own brother in law and through his father's brother, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consideration are: 1. Whether the plaintiff proved the transaction led to execution of Ext.A1, so as to get the suit amount, as claimed? 2. Whether the trial court went wrong in holding that the plaintiff proved Ext.A1 and the defendant's case is contrary, to be acted upon, so as to grant the decree? 3. Whether the verdict impugned requires interference? 4. Reliefs and costs. 13. Coming to the case put up by the plaintiff before the trial court, it was contended that, the defendant and her husband Sri.Suresh Babu had approached the plaintiff at his residence, in the month of January, 2005 and borrowed an amount of Rs.3,00,000/- for their house construction on undertaking to repay the same and issued a cheque dated 31.05.2005 drawn on Ex-Service Cooperative Bank, Pazhayangadi and the same got dishonored for want of funds. On the other hand, the defendant emphatically denied the transaction, issuance as well as the signature in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 the issuance of the cheque is admitted or the same is proved, then the plaintiff would get the benefit of presumptions under Sections 118 (a) to (g) of the Negotiable Instruments Act, 1881 [hereinafter referred as 'NI Act' for short]. Similarly, in a criminal prosecution for the offence under Section 138 of the NI Act, the complainant would get the benefit of presumption under Section 139 of the NI Act, on proving the transaction led to execution of the cheque. 18. But, the presumptions are rebuttable and for which the defendant can rely on the evidence already adduced by the plaintiff and can also adduce independent evidence. Here, the question that arises for consideration is, whether the plaintiff discharged his initial burden in the matter of proving the transaction, which led to execution of the Ext.A1 cheque? 19. In the instant case, during cross-examination, nothing was extracted to disbelieve the version of PW1, apart from ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 not stand unless there is no substantive evidence. In the instant case, the substantive evidence as that of the plaintiff in the matter of transaction, which led to execution of Ext.A1 cheque was not shaken during cross-examination. Therefore, presumptions under Section 118 (a) to (g) of the NI Act is to be adjudged in favour of the plaintiff. The inconsistent case put up by the defendant is not supported by even remote piece of evidence and therefore the said case not at all established, inturn the presumptions in favour of the plaintiff not rebutted. In such view of the matter, the trial court rightly granted decree. In fact, the said verdict does not require any interference. 23. Regarding the remand plea at the instance of the learned counsel for the defendant, in the decision in Manakkatt Mohammed Niyas v. Methukayil Veettil Ummer reported in [2025 KHC OnLine 13 : 2025 KER 286 : 2025 KLT OnLine 1021], this Court held as under: 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 cases, the appellate court may, if necessary, frame issues and refer the same to the court from whose decree the appeal has been preferred, and in such event, after taking additional evidence as directed by the appellate court, the trial court would return the evidence of the appellate court together with its finding thereon. Before the introduction of Rule 23A of Order XLI of the CPC as on 1.2.1977, the power of the appellate court to remand a case was available in a case which was decided on a preliminary point. However, in view of Order XLI Rule 23A of the CPC, power to remand a matter has been enhanced exhaustively and thereby, even in a case which was not decided on a preliminary point when the appellate court finds that there are valid reasons warranting a re-trial, the appellate court can remand the matter. 18. In the decision in Purushotham Reddy and Another v. M/s.Pratap Steels Ltd., reported in [2002 KHC 1159 : AIR 2002 SC 771 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xceptional 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. Where an amendment in pleadings is of essence for settling the controversy and the amendment sought for is denied by the trial court, it is not a "proper trial". Likewise, nonframing of an essential issue makes it mandatory on the appellate court to frame the issue itself and to decide the case by the appellate court. No case can be remanded enabling a party to produce additional evidence unless proper opportunity was not afforded or denied to such party to lead evidence. Thus, an order of remand has to be made when the contingencies mentioned in Rules 23, 23A and 25 of Order XLI of the CPC, are available. 20. In the decision in Heinz India Pvt. Ltd and Another v. State of Uttar Pradesh and Others reported in [2012 KHC 4190 : 2012 (5) SCC 443 : 2012 (2) KLT SN 64], it was held in paragraph No.83 as under: "So also, no remand ought to be made only to enable a party to produce additional material. A remand is neither mechanical nor a ..... 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