Ms. Neeru Narula vs M/S. Dhand Enterprises
2008 Latest Caselaw 1918 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of Order : 31.10.2008

+                           RFA 88/2002

     MS. NEERU NARULA                        ..... Appellant
               Through:     Mr.Ashok Bhasin, Sr. Adv. with
                            Mr.Shantanu Rastogi, Adv. and
                            Mr.A.K.Sham, Adv. with
                            Appellant in person.

                            versus

     M/s.Dhand Enterprises
     (Through Pawan Kumar Dhand, sole proprietor)..Respondent
                Through:   Mr.Naresh Bakshi, Adv. and
                           Mr.Tushar Bakshi, Adv. with
                           Proprietor of the respondent in person.


     CORAM:
     HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
     HON'BLE MR. JUSTICE S.L.BHAYANA


1.   Whether reporters of local papers may be allowed
     to see the judgment?

2.   To be referred to the Reporter or not?

3.   Whether judgment should be reported in Digest?




: PRADEEP NANDRAJOG, J.(Oral)

1.         The appeal was admitted on 29.10.2002.               On an

application filed seeking early hearing the hearing of the appeal

was expedited.

2.         Trial Court record has been requisitioned.

3.         Heard learned counsel for the parties.

                                                               Page 1 of 7
 4.          The appellant was the defendant.         She has lost the

battle. The suit filed by the respondent, who was the plaintiff,

has been decreed in sum of Rs.3,90,000/- with interest @18%

per annum from 8.1.1997 till 4.1.2002 when judgment and

decree was pronounced.        Costs have also been awarded in

favour of the respondent.

5.          The respondent was maintaining a current account

No.14048 with the Union Bank of India, Branch at G-237,

Narayan Vihar, New Delhi-110028.           Undisputably out of the

cheque book issued by the bank to the respondent cheque

No.062361    was   utilized   for    withdrawing    Rs.3,90,000/-    on

8.1.1997.

6.          The dispute between the parties is whether the

appellant withdrew the money or whether the respondent did

so.

7.          The cheque Ex.PW-1/1 is drawn on self and is dated

7.1.1997.

8.          Case of the respondent is that he drew the cheque on

self and went to the bank to withdraw the money on 7.1.1997

but since there was no money in the account he could not

withdraw the requisite sum.         That he knew the appellant and

hence at the rear of the cheque made an endorsement: "Please

deliver this amount to Mrs.Neeru Narula.           Her signatures are


                                                              Page 2 of 7
 attested below."

9.         Beneath the said endorsement he attested the

signatures of Neeru Narula by making her sign at point 'D' at the

rear of Ex.PW-1/1 and there-under penned his signatures in

token of the certification.   That armed with the said authority

Mrs.Neeru Narula, the appellant, withdrew Rs.3,90,000/- but did

not pay over the same to him and hence the suit.

10.        The appellant defended the cause initiated by

pleading that she was requested by the respondent to withdraw

the money in cash on 7.1.1997 and that the endorsement at the

reverse of the cheque were made on 7.1.1997. She went to the

bank to withdraw money but there being no cash she came back

and handed over the cheque to the respondent who encashed

the same on 8.1.1997.

11.        Needless to state, the fate of the cause before the

Court would have been decided on whether the respondent

proved that the appellant withdrew the money under the cheque

in question; and if he did so the appellant would have failed

inasmuch as it was not her case that after she withdrew the

money she handed over the same to the respondent.

12.        Parties examined themselves as their witnesses, and

needless to state, reiterated their respective versions.

13.        The Manager of the bank, Shri A.K.Budhiraja, was


                                                           Page 3 of 7
 examined as PW-1. He stated that he was functioning as the

Manager of the bank on 8.1.1997 and that on 8.1.1997 at about

11.00 A.M. he personally handed over the money to the

appellant when the cheque was presented for encashment.

14.        In view of the testimony of PW-1, learned Trial Judge

has held that the same establishes that the appellant was the

person who received the money when the cheque was

presented for encashment on 8.1.1997 and since it was not the

case of the appellant that she had handed over the money to

the respondent, view taken is that the suit has to be decreed.

15.        Learned counsel for the appellant has drawn our

attention to the cheque Ex.PW-1/1. As noted above, the cheque

was drawn on self.       It has an endorsement at the rear

authorizing   the   appellant   to   receive   the     money.        The

endorsement    attests   her    signatures.     Just    beneath       the

endorsement are the signatures of the appellant at the point

mark 'D' and there-under are the signatures of the respondent.

16.        We note that at the rear of the cheque two more

signatures of the respondent are to be found. The same have

been circled with a blue pencil.       We do not find any other

signatures of the appellant Neeru Narula at the rear of the

cheque.

17.        Anyone who has visited a bank and has withdrawn


                                                                Page 4 of 7
 money on a cheque drawn on self would be aware of the

procedure to be followed.     The same is that the cheque is

handed over at the counter to the clerk in whose custody the

ledgers are kept.     The clerk hands over a token and obtains

signatures at the rear of the cheque. This signature is taken so

that the teller can cross check the said signatures with the

signatures of the person who hands over the token when money

is paid by the teller and signatures are obtained for a second

time at the rear of the cheque in token of receipt of money by

the token holder.

18.       Mr.A.K.Budhiraja was examined on this aspect of the

matter as to how the appellant received the money without

there being any evidence of her presenting the cheque and

receiving a token much less any evidence of her receiving the

payment and acknowledging the same when token was returned

and money was handed over to her. He answered: "In case of

big payment and when the parties are well known to the bank

we normally oblige the party by giving the payment to the party

in the cabin.       No receipt of payment was received from

Mrs.Neeru Narula and it was not required. It is correct that we

obtain the signatures at the time of payment on the back of the

bearer cheque."

19.       We are afraid, the learned Trial Judge could not have


                                                        Page 5 of 7
 decreed the suit in view of the afore-noted evidence.      Merely

because Mr.A.K.Bhardwaj stated that he paid the money to the

appellant is of little assistance to the respondent. Our reason

for so stating is that the testimony of Mr.A.K.Bhardwaj is

contrary to the procedures of the bank to be followed; indeed he

admitted during cross-examination that the signatures of the

person who receives the money on presenting a bearer cheque

are obtained when payment is made.          It is settled law that

where the learned Trial Judge omits to consider material

evidence or probablizes evidence on wrong principles of the

Appellate Court is obliged to take corrective action.

20.        The admission of PW-1 is fatal to his statement that

without obtaining signatures of Mrs.Neeru Narula money was

paid to her. His version gets further diluted when we notice two

signatures of the respondent at the rear of the cheque.        The

explanation of the respondent that he went to receive money on

7.1.1997 and at that point of time appended his signatures at

the rear of the cheque is hardly convincing, for if this was so,

only one signature of the respondent would have found

appended at the rear of the cheque. We also note that on the

cheque there is only one stamp of the bank while acknowledging

receipt of the cheque.

21.        The appeal is allowed.      Impugned judgment and


                                                          Page 6 of 7
 decree dated 4.1.2002 is set aside.

22.       The suit filed by the respondent is dismissed with

costs against the respondent and in favour of the appellant. The

appellant would be entitled to costs in the appeal. Surety bond

furnished by the appellant stands discharged.




                                PRADEEP NANDRAJOG, J.

S.L.BHAYANA, J. OCTOBER 31, 2008 dk