The court ruled on the erroneous burden of proof and misinterpretation of evidence regarding a dishonored cheque, impacting the enforceability of monetary claims.

JUDGMENT

This appeal arises out of the concurrent findings rendered by the II Addl. Munsiff Court, Thiruvananthapuram, in O.S. No. 1459 of 2003 dated 30.06.2004 affirmed by the Addl. District Court - II, Thiruvananthapuram, in A.S. No. 273 of 2009 dated 08.10.2010. The suit was one which is instituted for recovery of money.

2. The brief facts necessary for the disposal of the appeal are as follows;

2.1. The plaintiff sued the defendant/appellant on the strength of a cheque bearing No. 367381 dated 21.07.2003 for an amount of Rs. 57,500/-. According to the plaintiff, on 04.10.2002, a sum of Rs. 57,500/- was borrowed by the defendant for which, a security was given in the form of cheque bearing No. 367381 dated 21.07.2003. It is further stated that there was a complaint before the Sub Inspector of Police, Vanchiyoor, by the defendant against the creditors and that it was settled by the defendant by stating that he would pay the amount.

Since there was no intention on the part of the defendant to settle the amount, the plaintiff proceeded to submit the cheque for encashment. But, however, same was dishonored on 22.07.2003. Accordingly, the plaintiff issued a lawyer’s notice on 08.08.2003 calling upon the defendant to pay the amount within 15 days and on failure, the suit was instituted.

2.2. The defendant resisted the suit contending that he had already discharged liability to the plaintiff and, therefore, there is nothing remains to be paid to the plaintiff under the loan transaction. On behalf of the plaintiff, Exts. A1 to A9 documents were produced. On behalf of the defendant, Exts. B1 series were produced. Exts. X1 and X2 were summoned through third party. PW1 to PW3 were examined on behalf of the plaintiff. The defendant examined himself as DW1. The Account Slips endorsed by the plaintiff were marked through PW1 to admit the contents of Exts. B1 series. But, however, it is stated that Exts. B1 series pertains to another transaction. The Trial Court on the basis of Exts. B1 series, X1 and X2 came to the conclusion that the transaction mentioned by the defendant pertains to a different transaction and that the plaintiff has sustained his claim for recovery of money and accordingly, decreed the suit.

2.3. Aggrieved, the defendant preferred A.S. No. 273 of 2009 and by judgment dated 08.10.2010, the appeal was dismissed and hence the present second appeal.

3. On 14.11.2025, this Court admitted the appeal on the following substantial questions of law;

“i. Have not the lower courts erred in casting the onus of proof on the appellant and erroneously held that he has not proved Ext.B1 inasmuch as the plaintiff as PW1 has explicitly admitted Ext.B1 in cross-examination?

ii. Have not the lower courts misread the evidence and wrongly relied on Ext.X1 and X2 without appreciating their nature and character?”

4. Heard Sri. G. Sudheer, the learned Counsel for the appellant and Sri. R. T. Pradeep, the learned Counsel appearing for the respondent.

5. The learned Counsel for the appellant/defendant contended that the case pleaded by the plaintiff cannot be probable especially in the absence of any specific averment in the plaint with regard to a different transaction other than that covered under Exts. B1 series. Further, the learned Counsel for the appellant pointed out that issuance of Ext. A2 lawyer’s notice is crucial inasmuch as the suit has been preferred after the issuance of the lawyer’s notice and, therefore, these crucial aspects has not been taken note by the Courts below.

6. Per contra, Sri. R. T. Pradeep, the learned Counsel for the respondent/plaintiff contended that a presumption is attached to Ext. A1 cheque dated 21.07.2003 and that in the absence of any evi