Mukesh Kumar Sharma vs Girish Chander
2018 Latest Caselaw 6952 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 946/2018

%                                                26th November, 2018

MUKESH KUMAR SHARMA                                    ..... Appellant
                          Through:       Mr. G.S. Sharma and Mr. V.K.
                                         Sharma, Advocates (Mobile
                                         No. 9911140170).

                          versus
GIRISH CHANDER                                         ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 48445/2018 (for exemption)

1. Exemption allowed, subject to just exceptions.

C.M. stands disposed of.

RFA 946/2018 and C.M. Appl. No. 48444/2018 (for stay)

2. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit

impugning the Judgment of the trial court dated 15.10.2018 by which

the trial court has decreed the suit for recovery of money filed by the

respondent/plaintiff and has passed a decree for a sum of Rs.

7,00,000/- with interest at 9% per annum. The suit has been decreed

on account of loan having been given by the respondent/plaintiff to the

appellant/defendant, and which loan was secured by cheques of the

appellant/defendant which were dishonoured on presentation with the

first noting that 'contact the drawer' and the second noting that the

appellant/defendant had closed his bank account.

3. The facts of the case are that the respondent/plaintiff

filed the subject suit pleading that he gave to the appellant/defendant a

total loan amount of Rs. 7,00,000/- on three occasions. First time the

loan was given of Rs. 3,00,000/-, and which was secured by the

appellant/defendant by his two cheques of Rs. 1,00,000/- and

Rs.2,00,000/- dated 28.05.2010 bearing nos. 255027 and 255026.

The cheques were drawn on State Bank of India (SBI), Shakurpur,

Delhi. Second time the loan was given on 20.07.2010 of Rs.

2,00,000/- and which was again secured by a cheque dated 20.07.2010

bearing no. 254981 of the same bank SBI. Third time loan of Rs.

2,00,000/- was given on 29.07.2010 which was secured by a cheque

bearing no. 254982 of the same bank SBI. When these cheques were

first presented by the respondent/plaintiff the same were dishonoured

with the remarks 'contact the drawer/drawee bank and please present

again' with the Cheque Returning Memo dated 30.11.2010.

Subsequently, when the cheques bearing nos. 254982 and 254981

were re-presented they were returned back with the remarks 'no such

account'. After serving a Legal Notice dated 12.01.2011 upon the

appellant/defendant, the subject suit for recovery of Rs. 7,00,000/- was

filed.

4. Appellant/defendant contested the suit by filing written

statement and pleaded that the suit is false and frivolous. It was

pleaded that parties were well known to each other and the

appellant/defendant never took any loan from the respondent/plaintiff.

It was pleaded that the respondent/plaintiff was in fact operating a

committee (private chit fund) and the cheques which were given were

given towards the payment of committee amount by the

appellant/defendant. It was pleaded that since the subject four

cheques of the appellant/defendant were stated to become

outdated/expired, hence the appellant/defendant got four other cheques

issued from his brother Sh. Dinesh Kumar Sharma which were given

to respondent/plaintiff but the respondent/plaintiff however did not

return the expired cheques. It was pleaded that the respondent/plaintiff

has misused the four cheques which were substituted by the four other

cheques, and therefore the suit was prayed to be dismissed because the

respondent/plaintiff is pleaded not to have returned the subject

cheques despite repeated requests of the appellant/defendant.

5. The following issues were framed in the suit, and parties

led evidence, and which aspects are recorded in paras 5 to 10 of the

impugned judgment and which paras read as under:-

5. From the pleadings and consent of the parties, following issues were framed on 06.03.2017:-

(i) Whether the plaintiff is entitled to a decree of Rs. 7,00,000/-? OPP.

(ii) Whether the plaintiff is entitled to interest, if any, and if so, at what rate? OPP.

(iii) Whether the plaintiff has got no cause of action for filing the present suit? OPD.

(iv) Whether the suit of the plaintiff has not been valued properly for the purposes of court fees and jurisdiction? OPD.

(v) Relief.

6. In order to prove his case, the plaintiff examined three witnesses, in total, the details of whom are here as under:-

PW1 - Sh. Girish Chander i.e. the plaintiff himself; PW2 - Sh. Rajender Prasad, Clerk in State Bank of India, Shakurpur Branch, Delhi.

PW3 - Ramesh Prakash, Sr. Manager in Canara Bank, Sector-5, Rohini Branch, Delhi.

7. The plaintiff appeared in the witness box as PW1 and tendered his affidavit in evidence as Ex. PW1/A which is on the identical lines as per the plaint. PW1 also relied upon various documents i.e. Exs. PW1/1 to PW1/12 and Marks A & B. Documents Exs. PW1/1 to PW1/4 are the cheques bearing nos. 254981, 254982, 255027 and 255026 respectively issued by the defendant in favour of the deponent; Ex. PW1/5 (colly) are the cheque deposit receipts dated 26.11.2010 and 14.12.2010; Exs. PW1/6 to PW1/11 are the computer generated bank returning memos and Ex. PW1/12 (colly) are the postal receipts regarding issuance of legal notice to the defendant. Mark A is the copy of legal notice dated 12.01.2011 and Mark B (colly) are the copies of GPA, Receipt, Affidavit and Deed of Will. Documents exhibited as Exs. PW1/6 to PW1/11 were objected to by the learned Counsel for the defendant.

PW1 was duly cross examined.

8. PW2 Sh. Rajender Prasad, Clerk in State Bank of India, brought the summoned record i.e. copy of cheques bearing nos. 254981 dated 20.07.2010, 254982 dated 29.07.2010, 255026 dated 28.05.2010 and 255027 dated 28.05.2010 amounting to Rs. 2,00,000/-, 2,00,000/-, 2,00,000/- and 1,00,000/- respectively, which are already exhibited as Exs. PW1/1 to PW1/4. He deposed that all these cheques are drawn on from account bearing no. CA30396375725 of Sh. Mukesh Kumar Sharma. PW2 also brought the computer generated copies of cheque return memos in respect of the above mentioned cheques showing the reason of dishonour at points A & B. The same are exhibited as Exs. PW2/1 and PW2/2.

9. PW3 Sh. Ramesh Prakash, Sr. Manager in Canara Bank, also brought the summoned record i.e. the certified copy of statement of account for the period of 01.01.2010 to 30.11.2010 in respect of the account bearing no. 2590101002390 of Girish Chander. Same are exhibited as Ex. PW3/1 (containing 4 pages) showing the relevant entries at points A to E.

10. On the other hand, the defendant examined himself as DW1 and tendered his affidavit as Ex. DW1/A in evidence. DW1 also relied upon the documents i.e. Ex. PW1/D1 to PW1/D4 which were got exhibited during the cross examination of PW1.

DW1 was duly cross examined."

6. Trial court, in my opinion, has rightly decreed the suit by

arriving at the conclusions that the dishonoured cheques were proved

as Ex.PW1/1 to PW1/4, and the deposit receipts and the bank

returning memos were proved as Ex.PW1/5 (colly), Ex.PW1/6 to

Ex.PW1/11 and Ex.PW1/12 (colly). Trial court has held that the

cheques were admittedly of the appellant/defendant, and had the

signatures of the appellant/defendant. Trial court has further observed

that it is not possible to believe that if the subject cheques were

expired, and were substituted by four cheques given by the brother of

the appellant/defendant Sh. Dinesh Kumar Sharma, then there was no

reason why on the respondent/plaintiff not returning the cheques, the

appellant/defendant did not issue a legal notice or filed a complaint

against the respondent/plaintiff for not returning the subject cheques

which were substituted by the four other cheques. Additionally, this

Court would like to observe that leave aside issue of sending of a legal

notice by the appellant/defendant to respondent/plaintiff or even filing

a criminal complaint against the respondent/plaintiff, not even a

simple letter has been sent by the appellant/defendant to the

respondent/plaintiff for return of the four subject cheques. Trial court

has further observed that appellant/defendant only conveniently

claimed that the cheques were given by the appellant/defendant

towards a committee, but neither any names of the alleged committee

members were stated by the appellant/defendant nor a single member

of the alleged committee was produced on behalf of the

appellant/defendant to depose that the respondent/plaintiff was

running any committee. Trial court has further observed that

appellant/defendant has in fact not even brought into the witness box

his own brother who is said to have given substituted cheques in place

of the four subject cheques. Trial court has also relied upon legal

notice which was filed and proved by the respondent/plaintiff as

Ex.PW1/12 (colly.) with the copy of the notice being marked as Mark

PW1-A, and which was not replied to by the appellant/defendant.

7. I do not find any illegality or perversity in the aforesaid

findings and conclusions of the trial court which are based upon

evidence on record. Once the cheques are admittedly of the bank of

the appellant/defendant, they do bear the signatures of the

appellant/defendant, the same were dishonoured on presentation on

two occasions, with on one occasion the instruction being that to refer

to the appellant/defendant/drawer. The appellant/defendant was served

a legal notice for payment but he did not reply to the same nor did he

make the payment, the appellant/defendant also led no evidence of any

other alleged committee member or of his own real brother for that

matter, consequently the trial court has rightly decreed the suit for

recovery of moneys.

8. Learned counsel for the appellant/defendant firstly argued

that the respondent/plaintiff has failed to prove that he had the means

to advance the loan of Rs. 7,00,000/- to appellant/defendant. In my

opinion however this argument has to be rejected because Section 118

of the Negotiable Instruments Act, 1881 provides that a cheque when

issued is presumed to have been given for consideration. Therefore, it

does not lie in the mouth of the appellant/defendant to argue that no

loan was given by the respondent/plaintiff to the appellant/defendant,

because onus of proof was on the appellant/defendant that he did not

receive any loan, and in this regard once the aforesaid facts and

conclusions have been arrived at by the trial court, it has been rightly

so held by the trial court, that the appellant/defendant had received

loan from the respondent/plaintiff which was secured by the subject

four cheques.

9. Learned counsel for the appellant/defendant then argued

that the subject cheques were substituted by four cheques of the

brother of the appellant/defendant, but in this regard, and as already

discussed above, trial court has rightly held that if really the subject

four cheques were secured by four substituted cheques of the brother

of the appellant/defendant then there was no reason why either a legal

notice or a criminal complaint or for that matter even a simple letter

was not issued by the appellant/defendant to the respondent/plaintiff to

return the subject four cheques which were outdated and were

allegedly substituted by four cheques of the brother of the

appellant/defendant, Sh. Dinesh Kumar Sharma. Also, Sh. Dinesh

Kumar Sharma, the real brother of the appellant/defendant, has not

even come to the witness box to depose in favour of the

appellant/defendant with respect to the case which has been put up by

the appellant/defendant.

10. Learned counsel for the appellant/defendant finally

argued that the trial court has erred in placing reliance upon the legal

notice because the legal notice proved is only a copy of the legal

notice and not the original legal notice. This argument of the

appellant/defendant is also misconceived because a person who sends

a legal notice does not have the original legal notice with him and

would only have a copy thereof, and the copy of the legal notice has

been exhibited in this case. Reference in this regard is invited to

Section 65 of the Evidence Act, 1872 which provides that secondary

evidence of a document is admissible when the original is in power

and possession of the person against whom the document is sought to

be proved. In any case even if Section 65 of the Evidence Act is not

referred to, since however and admittedly the postal receipts have

been proved and exhibited by the respondent/plaintiff, onus shifted

upon the appellant/defendant to show that if the appellant/defendant

did not receive the subject Legal Notice dated 12.01.2011, then what

was the document which was received under the postal receipts which

were proved and exhibited by the respondent/plaintiff as Ex.PW1/12

(colly), and this the appellant/defendant failed to do.

11. No other ground or issue is urged before this Court

except as discussed above.

12. There is no merit in the appeal and the same is hereby

dismissed.

NOVEMBER 26, 2018                             VALMIKI J. MEHTA, J
AK