The burden of proof lies with the plaintiff to establish the transaction and source of funds for a cheque in a suit based on a negotiable instrument.

JUDGMENT

This regular first appeal has been filed under Section 96 read with Order XLI Rule 1 and 2 of the Code of Civil Procedure, 1908, challenging the decree and judgment dated 18.08.2018 in O.S. No.4/2017 on the files of the Sub Court, Punalur. The appellant herein is the plaintiff and the respondent herein is the defendant.

2. Heard the learned counsel for the appellant/plaintiff as well as the learned counsel who filed claim petition on behalf of Sri.Sreejith, claiming absolute title over the property attached by this Court by an interim order. Perused the verdict under challenge and the records of the trial court.

3. Parties in this appeal shall be referred as “plaintiff†and “defendant†with reference to their status before the trial court.

4. Short facts:- The plaintiff instituted this suit to realize Rs.25 Lakh alleged to be borrowed by the defendant from the plaintiff, during the period between March, 2014 and June, 2016. According to the plaintiff, in discharge of the said sum, the defendant issued cheque dated 15.11.2016 drawn on Federal Bank, Kottarakkara Branch for Rs.25 Lakh. When the cheque was presented for collection, the same got dishonored for want of funds. Accordingly, the plaintiff filed the suit to realize the said amount along with interest at the rate of 18% interest per annum.

5. Defendant filed written statement denying the transaction as well as entitlement of Rs.25 Lakh by the plaintiff on the strength of the cheque dated 15.11.2016. Execution of the cheque also was denied. The specific contention raised by the defendant before the trial court was that, the plaintiff had no financial capacity to lend such a huge sum of Rs.25 Lakh to the defendant. The specific case of the defendant further was that, the husband of the defendant, Mr.Alexander borrowed Rs.7,85,000/- from Mr.Bibu, who is the husband of the younger sister of the plaintiff, for the purpose of admission of his daughter for BDS course, agreeing to repay the same with interest at the rate of 5% per annum. At the time of this transaction, two signed blank cheques of the defendant were given and one among the cheques was misused for the purpose of this case. Accordingly, the entire plaint averments were denied.

7. Thereafter, the trial court tried the matter. PWs 1 and 2 examined and Exts.A1 to A8 marked on the side of the plaintiff. DW1 examined and Exts.B1 to B3 marked on the side of the defendant.

8. On anxious consideration of the evidence tendered, the trial court dismissed the suit finding that the plaintiff failed to prove the disputed transaction and her entitlement of the amount as per Ext.A1 cheque.

9. While assailing the verdict of the trial court, it is argued by the learned counsel for the appellant/plaintiff that, even though PWs 1 and 2 supported the case put up by the plaintiff as regards to borrowing of Rs.25 Lakh by the defendant and execution of Ext.A1 cheque, by the defendant in return of the said amount, the trial court miserably failed to evaluate the evidence in its proper perspective and accordingly the trial court found that the case advanced by the plaintiff was not proved. According to the learned counsel for the appellant/plaintiff, the trial court ought to have decreed the suit relying on the evidence of PWs 1 and 2. Thus, the impugned verdict requires interference. In the alterative, the learned counsel for the plaintiff sought for remand of the matter with liberty to the plaintiff to adduce further evidence in support of her contentions.

10. Adv.Bijith S. Khan represented by Adv.Reshma, who is appearing for one Mr.Sreejith, the claim petitioner, submitted that, in this matter, the property attached by this Court is one absolutely belongs to the claim petitioner and the property was purchased by Sri.Sreejith from the husband of the defendant and the defendant is not