Om Prakash vs Prem Jewellers
2010 Latest Caselaw 5125 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment : 11.11.2010

+                        RSA No. 170/2001

OM PRAKASH                                     ...........Appellant
                         Through:    Mr.M.S.Rohilla, Advocate.

                   Versus

PREM JEWELLERS                                 ..........Respondent
                         Through:    Mr.Dhanesh Relan, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                             Yes

INDERMEET KAUR, J. (Oral)

1. This second appeal has impugned the judgment and decree

dated 10.04.2001 which had endorsed the finding of the Trial Judge

dated 08.08.2000 thereby dismissing the suit of the plaintiff, Sh.

Om Prakash.

2. Plaintiff had filed a suit for recovery of Rs. 38,4000/- against

three defendants of which Rs. 20,000/- had been claimed as the

principal amount; Rs. 14,400/- was the interest which was w.e.f

20.04.1993 to 19.04.1996 @ 24 % per annum; Rs. 4000/- had been

claimed as notice charges. The case of the plaintiff was that he

had advanced a loan of Rs. 20,000/- vide cheque no. 202196 dated

20.04.1993 to defendant no.1 through defendant no. 2 and on the

asking of defendant no. 3. Amount was repayable with interest @

24% per annum. Defendants utilized the amount for their

business. The defendants failed to pay back the loan to the

plaintiff. Hence, the present suit was filed.

3. Defendants denied the liability. It was stated that on

16.04.1993, plaintiff had taken a cash loan of Rs. 20,000/- from

defendant no. 3 on assurance of its re-payment within 2/3 days. A

cheque for Rs. 20,000/- in refund of the loan was according given

by the plaintiff to defendant no. 3; this was a blank bearer cheque.

Defendant no. 3 had a liability towards Sh. Anil Khattar; in

consideration thereof he gave this bearer cheque of Rs. 20,000/- to

his friend Sh. Anil Khattar. On the same day i.e. on 19.04.1993,

Sh. Anil Khattar purchased one gold chain and one ring for a sum

of Rs. 20,000/- from the shop of Defendant no. 2 (proprietor of

Defendant no. 1, M/s. Prem Jewellers); Rs. 330.80/- which was in

excess was paid by Sh. Anil Khattar for clearance of the said bill;

the balance was paid by this cheque of Rs. 20,000/- .

4. Trial Judge had framed five issue which interalia reads as

follows:-

1. Whether the plaintiff advanced loan of Rs. 20,000/- to defendant no. 1 through defendant no. 2 at the instance of defendant no. 3? OPP.

2. Whether the plaintiff issued a cheque for Rs. 20,000/- in favour of defendant No. 3 who delivered the said cheque to Sh. Anil Khattar who in turn purchased gold chain and gold ring from defendant no. 2 for a sum of Rs. 20,330/- and paisa 80 and paid Rs. 330.80 in cash and the qheque for Rs. 20,000/- issued by plaintiff to defendant no. 3 against the said purchase? OPD.

3. To what amount, if any, the plaintiff is entitled? OPP.

4. Whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP.

5. Relief.

5. Two witnesses were examined on behalf of the plaintiff;

cheque was proved as Ex. PW 1/1. Four witnesses had come into

the witness box on behalf of the defendants; the ledger accounts of

Sh. Anil Khattar were proved in the version of DW-1; they are Ex.

DW 1/3 and Ex. DW 1/4. Defendant no. 3 had come into the

witness box as DW-2. He had reiterated the averment on oath. Sh.

Anil Khattar has come into witness box as DW-4.

6. The Trial Judge on the basis of this oral and documentary

evidence held that the version of the defendants appears to be

more natural and trustworthy. The case of the plaintiff was

disbelieved. It was dismissed. The impugned judgment dated

10.04.2001 had endorsed this finding of the Trial Judge.

7. This is a second appeal. It was admitted on 30.04.2004. On

28.10.2010 the following substantial question of law was

formulated:-

1. Whether the findings in the impugned judgment dated 10.04.2001 qua the interpretation of the document Ex. PW-1/1 is a perverse finding. If so, its effect?

8. On behalf of the appellant, it has been urged that the

findings in the impugned judgment are perverse and call for

interference. It has been pointed out that issue no. 2 was the

crucial issue of which the onus has been placed upon the

defendant. The defendants have failed to discharge this onus.

Attention has been drawn to the cross examination of DW 1

wherein he has stated that the cheque in question was a crossed

cheque; it has been pointed out that this is contrary to the version

set up by the defendants who have stated that this was a bearer

cheque; futher DW-1 in his cross examination has stated that the

cheque in question bore the signatures of Mr. Anil Khattar which is

not the case of the parties; admittedly this cheque had been issued

by the plaintiff, Sh. Om Prakash. Attention has also been drawn to

the version of DW-2 wherein he has stated that the plaintiff had

demanded a sum of Rs.20,000/- saying that he was in dire need of

money; it is difficult to imagine that DW-2 could have arranged

such an amount when he himself owed money to Anil Khattar

which was the next part of his deposition. It is pointed out that

DW-4 has for the first time stated that the cheque did not have a

date. These versions are contrary and conflicting; the Trial Judge

relying upon these versions has committed a perversity. Counsel

for the appellant has placed reliance upon a judgment of the

Supreme Court reported in AIR 2010 SC 2685 Bharatha Matha &

Anr. Vs. R.Vijaya Renganathan & Ors. to support his submission

that where a decision is arrived at on no evidence or evidence

which is thoroughly unreliable and no reasonable person would

act upon it, the said judgment would be perverse. Ratio is

applicable to the instant case.

9. Arguments have been countered by the learned counsel for

the respondent.

10. It is stated that this court is sitting in second appeal and

cannot re-appreciate facts; it is not the third fact finding court. It

is pointed out that the findings of the impugned judgment are in no

manner perverse and call for no interference.

11. Perusal of the record shows that both the courts below had

given concurrent findings. The defence of the defendants had been

substantiated in the version of four witnesses who had adduced

oral evidence and the documentary evidence which comprises of

DW 1/1 to DW 1/4. Defendant no. 2, Sh. Ved Prakash, the

proprietor of M/s Prem Jewellers has come into the witness box as

DW-1. He had deposed that the cheque in question was given to

him by Sh. Anil Khattar for the payment of his bill which was of Rs.

20,000/- which was raised by him for the purchase of a gold ring

and a chain by Sh. Anil Khattar. Anil Khattar had come into the

witness box as DW-4 to corroborate this version. The entries in his

ledger book had been proved as Ex. DW 1/3 and DW 1/4.

Defendant no. 3, Sh. Rajeshwar Sandhi, has come into the witness

box as DW-2. He had deposed that on 16.04.1993, he had given a

loan of Rs. 20,000/-. to the plaintiff in cash which was returned by

the plaintiff vide the cheque in question i.e. PW-1/1; this was on

19.04.1993; cheque did not have any name or endorsement on it.

DW-4 deposed that Rajeshwar Sandhi (DW-2) had taken a loan of

Rs. 20,000/- from him. On 19.04.1993, DW-4 approached DW-2 for

money as he was in need of it; DW-2 gave him a cheque of Rs.

20,000/-; on 19.04.1993 DW-4 purchased one gold ring and one

chain from the shop of defendant no. 2 and in lieu of that payment,

he had given that Ex. PW 1/1 to defendant no. 2 (DW-1) which was

of Rs. 20,000/-; balance amount of Rs. 330.80/- was paid in cash.

12. Both the courts below had correctly appreciated the oral and

the documentary evidence. Relevant extract of the impugned

judgment reads as follows:-

" 11. No doubt by the testimony of PW-1 the cheque dt. 20.4.93 for Rs.20,000/- favouring of M/s Prem Jeweller for the Account No.10987 drawn by Om Parkash has been proved and the same has been proved as Ex.PW-1/1 and encashment of cheque is not in dispute by the respondent M/s. Prem Jeweller. What has been disputed is the loan advanced by the appellant to the respondent. In order to prove the loan by the appellant-plaintiff to the respondent-defendant No.1 no other document has been proved and at the same time it has come on record from the testimony of the appellant himself that previously the appellant and respondent No.1 were not known to each other. It is very difficult to understand as to how the loan has been advanced to the unknown person if that person is not known to the party previously. At the

same time, ld. counsel for the appellant submitted that the presumption goes in favour of the plaintiff in respect of issuing the cheque regarding consideration thereof. No doubt this presumption is perfectly available and valid and a cheque issued in favour of any person is to be presumed that it was issued for some consideration. But consideration is not in dispute and that too has been pleaded and proved by the respondent in his pleading and on evidence also and corroborating document have also been proved on record to prove with preponderance of evidence for the said cheque had been given to the respondent No.1 by one A.K. Khattar for the purchase of golden ornament i.e. ring and a chain and the corresponding entry in the account book and issuance of the bill, documents relating to sales tax and income tax and concerned entry relevant for transaction which is very much on record, corroborate the plea taken by the respondent to successfully rebut the case of the appellant in all respect and in those circumstances in the absence of any corroborating document for advancing a loan it is really very difficult to believe the story of the appellant that he had advanced a loan of Rs.20,000/- to respondent No.1 and on the other hand the plea taken by the respondent No.3 and successfully proved on record by documentary as well as oral evidence on record, I find that the ld. Trial Court was perfectly justified in believing the evidence led by the respondents in support of their pleadings and on evidence there was no reason to discard their testimony as unreliable since on cross-examination nothing contradictory has been pointed out and at the same time there was no reason found on record to disbelieve the testimony of DW-1 Rajiv Saxena, DW-4 A.K. Khattar, who handed over the cheque to the respondent No.1 and DW-2 Rajeshwar Sandhi, who had given that cheque to A.K. Khattar and in view of these facts proved on record, I find no justification to interfere the impugned judgment and decree passed by the ld. Commercial Civil Judge, and , accordingly, I find no merit or substance in the appeal.

13. In no manner can it be said that these findings of the two

courts below were perverse.

Perverse- has been defined as a verdict which is not only

against the weight of evidence but is altogether against the

evidence.

14. In (2009) 10 Supreme Court Cases 206 Arulvelu And Another

Vs. State , the Supreme Court on the meaning and the scope of a

„perverse finding‟ had inter alia held as follows:-

"A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."

15. It is clearly not the case, as is apparent from the record, that

the impugned judgment had taken into account evidence not

adduced by the parties or had ignored or misread the documentary

evidence. Hands of this court are tied; it cannot re-examine facts.

Appeal has no merit; it is dismissed.

INDERMEET KAUR, J.

NOVEMBER 11 , 2010 Ss/rb/nandan