JUDGMENT C.PRATHEEP KUMAR, J. The defendant in O.S.943/2011 on the file of the Sub Court, Ernakulam, is the appellant. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.) 2. The plaintiff filed this suit for realisation of money. According to the plaintiff, while he was an unemployed person, he had discussed his idea to start a business with his close relative Mr.Poly Varghese. During August, 2010, the defendant approached him, claiming that the plaintiff was referred to him by Mr.Poly Varghese, while he was attending a business meeting in UAE. Mr.Poly Varghese informed him that the plaintiff is also intending to start some business in Cochin. On 15.8.2010, the plaintiff met the defendant in a hotel at Palarivattom, Ernakulam and the defendant told the plaintiff that he had taken a building on rent at Palarivattom to start an accountancy school and also that he is in search of energetic young people like the plaintiff to associate with him in his business which he intends to start in Kerala. After discussions, the defendant promised to appoint the plaintiff as the working partner and manager of the accountancy school on a monthly salary of Rs.25,000/-. During the last week of January, 2011, the defendant told the plaintiff that if he is ready and willing to pay a sum of Rs.3,50,000/- to the defendant, he will appoint the plaintiff as a manager of the accountancy school on a monthly salary of Rs.25,000/-. Though initially the plaintiff was reluctant to accept the above proposal made by the defendant, later on agreed to pay a sum of Rs.3,50,000/- to the defendant. On 10.6.2011, the defendant contacted the plaintiff and told that he immediately requires a sum of Rs.5,00,000/- and also that he will refund Rs.1,50,000/- within one month. Accordingly, the plaintiff transferred a sum of Rs.5,00,000/- into the account of the defendant through the plaintiff's bank namely, State Bank of India. From the said amount, the defendant repaid a sum of Rs.1,26,000/- to the plaintiff in instalments. The defendant promised to pay the entire balance amount on the date of opening the Accountancy school on 17.8.2011 which is the 1 st day of Malayalam New year. From the said amount, the defendant repaid a sum of Rs.1,26,000/- to the plaintiff in instalments. The defendant promised to pay the entire balance amount on the date of opening the Accountancy school on 17.8.2011 which is the 1 st day of Malayalam New year. On 16.8.2011, the defendant informed the plaintiff that due to some unforeseen contingencies, the accountancy school could not be started and that the school will be opened by 10 th October 2011. He also instructed the plaintiff to look after the works being undertaken in the office at Palarivattom and agreed to contact the plaintiff on 7 th October, 2011. Thereafter he learnt that the defendant defaulted huge amount towards arrears of rent and that the defendant had not even contacted the building owner for quite long time. Thereafter, the plaintiff realised that he was cheated by the defendant. It was in the above context that he filed the suit for realising the balance amount of Rs.3,74,000/-. 3. The defendant filed a written statement contending that he had never met the plaintiff in August 2010 as introduced by Mr.Poly Varghese. He also denied having offered business partnership to the plaintiff and the post of manager of the accountancy school. According to the defendant, he, along with three other persons, entered into a partnership deed on 23.1.2011 for running a Manual and Computerized Accountancy and Management Training Institute under the name and style “SPAN Worldwide”. After the execution of the partnership deed, two partners unofficially retired and two others were inducted as partners and a memorandum of understanding (MOU) was executed between the defendant, Poly Varghese Vazhappilly and two others. Mr.Poly Varghese assured to invest 30% of the share capital and accordingly Poly Varghese transferred a sum of Rs.5,00,000/- through his relative, the plaintiff on 13.6.2011 to the bank account of the defendant. On the same day, the defendant issued a security cheque drawn on HDFC bank, Chalakkudy branch in the name of Poly Varghese. The said arrangement was only to secure the money invested by Poly Varghese. As instructed by Poly Varghese, the plaintiff was engaged for the purpose of renovating and furnishing the entire premises obtained by the defendant for starting the business and a cheque for Rs.75,000/- was issued to the plaintiff on 16.6.2011. Subsequently Rs.50,000/- was also given to the plaintiff for carrying out additional works in the premises. As instructed by Poly Varghese, the plaintiff was engaged for the purpose of renovating and furnishing the entire premises obtained by the defendant for starting the business and a cheque for Rs.75,000/- was issued to the plaintiff on 16.6.2011. Subsequently Rs.50,000/- was also given to the plaintiff for carrying out additional works in the premises. In the meanwhile, there arose some dispute within the partners and Mr.Poly Varghese was willing to discontinue the partnership. Subsequently the accounts of Poly Varghese was settled and the security cheque issued by the plaintiff was returned to him on 13.6.2011. The defendant never borrowed any amount from the plaintiff as alleged and he never offered any employment to him. Therefore, the defendant prayed for dismissing the suit. 4. The trial court framed three issues. The evidence in the case consists of the oral testimonies of PWs1 and 2 and DWs1 and 2, Exts.A1, B1, B2 and X1 to X4. After evaluating the evidence on record, the trial court decreed the suit. Being aggrieved by the above judgment and decree of the trial court, the defendant preferred this appeal. 5. Now the points that arise for consideration is the following : 1. Whether the defendant received a sum of Rs.5,00,000/- from the plaintiff after promising to make him a partner and Manager in the proposed Accountancy school, on a monthly salary of Rs.25,000/-? 2. Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal ? 6. The specific case of the plaintiff is that the defendant received a sum of Rs.5,00,000/- from him after promising to make him a partner and manager in the accountancy school to be opened by the defendant and to pay a monthly salary of Rs.25,000/-. However, the specific case of the defendant is that he had no direct dealings with the plaintiff. But according to him, he entered into a partnership arrangement with one Poly Varghese and two others and towards the share capital payable by Poly Varghese, Rs. 5,00,000/- was paid by him through the plaintiff, who is a close relative of Poly Varghese. 7. At the time of evidence, the plaintiff admitted that Mr. Poly Varghese is the husband of his cousin. In this case, the defendant admits that the plaintiff has transferred a sum of Rs. 5,00,000/- into his account. 5,00,000/- was paid by him through the plaintiff, who is a close relative of Poly Varghese. 7. At the time of evidence, the plaintiff admitted that Mr. Poly Varghese is the husband of his cousin. In this case, the defendant admits that the plaintiff has transferred a sum of Rs. 5,00,000/- into his account. He also admits that he had paid a sum of Rs. 1,26,000/- to the plaintiff. However, the specific case of the defendant is that the above Rs. 1,26,000/- was entrusted with the plaintiff for conducting the interior work of the rented building taken by him for conducting business and not towards repayment of the amount received. At the time of evidence, the plaintiff had no case that the amount transferred by him to the account of the defendant was the amount received by him from Poly Varghese. Moreover, when during the cross-examination of the plaintiff as PW1, a specific suggestion was put to him to the effect that the money transferred by him to the defendant was the one entrusted with him by Mr. Poly Varghese, he stoutly denied the same. 8. According to the plaintiff, the amount which was transferred into the account of the defendant was the amount received by him from his provident fund, gratuity, from his father as well as from his wife. However, he could not produce any evidence to prove the above claim that the amount came into his account was from his provident fund, gratuity, from his father and his wife. However, when at the instance of the defendant, DW 1, the Manager, State Bank of India, North Puthiya Road branch was examined, it is revealed that the above claim of the plaintiff is false. According to DW1, an account was opened in the name of the plaintiff on 10.05.2011. According to DW1, on the date of opening of the account itself, a sum of Rs. 25,00,000/- was transferred into the account of the plaintiff from the account of Mr.Poly Varghese. Exhibit X1 is the extract of the above account produced by him. He further deposed that Mr. Poly Vargese had NRI account with his bank and Exhibit X3 is the statement of the above account. Poly Varghese had a housing loan account in the said bank and Exhibit X4 is the statement of the above account. According to DW1, on 10.05.2011, a sum of Rs. He further deposed that Mr. Poly Vargese had NRI account with his bank and Exhibit X3 is the statement of the above account. Poly Varghese had a housing loan account in the said bank and Exhibit X4 is the statement of the above account. According to DW1, on 10.05.2011, a sum of Rs. 25,00,000/- was sanctioned to Poly Varghese in Exhibit X4 loan account and on the same day, the above Rs 25,00,000 was transferred into Exhibit X3 account of Poly Varghese and thereafter, on the very same day the above Rs. 25,00,000 was transferred into the account of the plaintiff namely Exhibit X1. It was from the above Rs. 25,00,000/- transferred by Mr. Poly Varghese into the account of the plaintiff, on 13.06.2011 the plaintiff transferred Rs.5,00,000/- into the account of the defendant. 9. As I have noted above, during the cross examination of the plaintiff as PW1, he categorically denied the suggestion put to him by the learned counsel for the defendant that the amount transferred by him to the defendant is the amount transferred to his account by Poly Varghese. The above evidence of PW1 is proved to be false in the light of the evidence of DW1 and Exts.X1 to X4. 10. From the evidence of PW1, it is revealed that his place of residence is Manjumal while State Bank of India, North Puthiya road branch is about 30 kilometers away from his place of residence. When he was asked about the reason for opening an account at North Puthiya road branch about 30 kilometers away from his place of residence, his answer was that it was for the purpose of availing agricultural loan from the bank. During the cross examination, the plaintiff claimed that he had availed agricultural loan of Rs.3,00,000/- from the said bank in the year 2011. However, when DW 1 was examined, he deposed that the plaintiff availed only a loan of Rs. 1,00,000/-as agricultural loan and that too was only on 28.04.2016. Therefore, the answer given by the plaintiff that he had opened an account with State Bank of India, North Puthiya road Branch on 10.05.2011 for the purpose of availing agricultural loan was also proved to be incorrect. 1,00,000/-as agricultural loan and that too was only on 28.04.2016. Therefore, the answer given by the plaintiff that he had opened an account with State Bank of India, North Puthiya road Branch on 10.05.2011 for the purpose of availing agricultural loan was also proved to be incorrect. The fact that the plaintiff opened an account at a distant place and on the same day a sum of Rs.25,00,000/- was transferred by Poly Varghese and out of which Rs.5,00,000/- was transferred to the account of the defendant are circumstances probabilising the case of the defendant. 11. Exhibit B1 is the memorandum of understanding entered into by the defendant along with Mr. Poly Varghese and two others. From Exhibit B1 it can be seen that they have mutually agreed to carry on the business of Manual and Computerized Accountancy and Management Training Institute and the initial registered capital of the company was fixed at Rs. 30,00,000/-. Out of which, Mr. Poly Varghese agreed to pay 30% while the defendant’s contribution is 10%. Exhibit B2 is the cheque for Rs.5,00,000/- dated 13.06.2011 drawn on HDFC Bank issued by the defendant in favour of Mr. Poly Varghese. The case of the defendant is that, Ext. B2 cheque was issued to Mr. Poly Varghese as security for Rs. 5,00,000/- paid by Poly Varghese through the plaintiff to him. According to him, subsequently, the relationship with Poly Varghese got strained, the claims of Poly Varghese were settled and thereafter, Exhibit B2 cheque leaf was returned to the defendant. 12. The date of Exhibit B1 is 2.6.2011. In the impugned judgment, the trial court assumed that the date on which the plaintiff transferred Rs.5,00,000/- into the account of the defendant was on 10.05.2002, even before the formation of Exhibit B1 MoU. However, the above finding of the trial court is incorrect as the date of transfer of Rs. 5,00,000/- by the plaintiff to the account to the defendant was on 13.06.2011, after the creation of Exhibit B1 and not before Exhibit B1. It was in the above context that the trial court disbelieved the case of the defendant that the above Rs. 5,00,000/- was transferred into his account in pursuance to the execution of Exhibit B1. 13. As per the pleadings in the plaint, the defendant was not a close friend of Mr. Poly Varghese. It was in the above context that the trial court disbelieved the case of the defendant that the above Rs. 5,00,000/- was transferred into his account in pursuance to the execution of Exhibit B1. 13. As per the pleadings in the plaint, the defendant was not a close friend of Mr. Poly Varghese. However, at the time of evidence, his version was to the effect that the defendant is a close friend of Mr. Poly Varghese. At the time of evidence, the plaintiff admitted that his basic qualification is only pre-degree and that he has not passed B.Com. In the above circumstances, his claim that the defendant promised to appoint him as manager in the accountancy school of the defendant was highlighted as an improbable claim by the learned counsel for the defendant. The case of the plaintiff that the defendant promised a salary of Rs. 25,000/- per month to such a person in the year 2011 was also highlighted by the learned counsel, to disbelieve the case of the plaintiff. 14. During the cross examination PW1 he admitted that he had received Rs. 1,26,000/- from the defendant. According to him, the said amount was received by him in several installments. When it was suggested that the above Rs. 1,26,000/- was given by the defendant to him for the purpose of the interior work of the rented building taken by the defendant at Palarivattom, he stoutly denied the said suggestion. Though the plaintiff claimed that the defendant promised to give the job of manager in the accountancy school to be opened by him, he could not produce any documents to prove it. Though the plaintiff claimed that he had worked in some companies as Site manager, he has not produced any documents in that respect also. Though from the evidence of DW 1 and from the documents produced by him, it is revealed an amount of Rs.25,00,000/- was transferred by Poly Varghese to the account of the plaintiff, he has not offered any explanation as to why Mr. Poly Varghese has transferred so much amount into his account on 10.05.2011. The conduct of the plaintiff in stoutly denying the transfer of the money into his account by Poly Varghese speaks volumes, in the light of the defendant’s case that the actual transaction was with Poly Varghese and not with the plaintiff. Poly Varghese has transferred so much amount into his account on 10.05.2011. The conduct of the plaintiff in stoutly denying the transfer of the money into his account by Poly Varghese speaks volumes, in the light of the defendant’s case that the actual transaction was with Poly Varghese and not with the plaintiff. As I have already noted above, the reason given by the plaintiff to open an account in a far off place was also found to be incorrect. 15. The cumulative effect of the aforesaid circumstances are sufficient to conclude that, the case put up by the defendant that the above Rs. 5,00,000/- was transferred by the plaintiff into his account at the instance of Mr. Poly Varghese is the probable one. It will further go to show that the contention of the plaintiff that he had advanced Rs. 5,00,000/- to the defendant as he promised the job of Exhibit B1 MoU and Ext.B2 cheque also substantiates the above conclusion. Mr. Poly Varghese has not came up with any case that the amount due to him from the defendant was not repaid. In the above circumstance, the suit filed by the plaintiff claiming that the defendant owes a sum of Rs.3,74,000/- to him is unsustainable and liable to be dismissed. Therefore, it can be seen that the trial court has failed to appreciate the evidence on record in the correct perspective, and as such, this appeal is liable to be allowed and the impugned judgment and decree of the trial court is liable to be set aside and the suit O.S. No. 943 of 2011 is liable to be dismissed. Points answered accordingly. 16. In the result, this appeal is allowed. The impugned judgment and decree of the trial court are set aside. OS No. 943 of 2011 on the file of the Sub Court, Ernakulam is dismissed with costs. All pending interlocutory applications in the appeal will stand dismissed.