Arun Jain vs M/S Dashmesh Cranes Services & Ors
2023 Latest Caselaw 3818 P&H

                                                    Neutral Citation No:=2023:PHHC:051836




CRM-A-45-MA-2014(O&M)                                                      1
                                                            2023:PHHC:051836



212         IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH

                                         CRM-A-45-MA-2014(O&M)
                                         Date of decision: 12.04.2023

ARUN JAIN
                                                            ........Applicant

                         VERSUS

M/S DASHMESH CRANES SERVICES AND OTHERS
                                     .......Respondents

CORAM: HON'BLE MR. JUSTICE VIKRAM AGGARWAL

Present:    Mr. Sachin Jain, Advocate for
            Mr. Ranjit Saini, Advocate
            for the applicant-appellant.

            Dr. Deepali Verma, Advocate
            for Ms. Deipa Singh, Advocate
            for respondents No.1 to 3.

            Ms. Surender Singh, Asstt. Advocate General, Haryana.

           ****

VIKRAM AGGARWAL, J (ORAL)

CRM-A-45-MA-2014

Challenge in the present application is to the judgment dated

29.09.2010 vide which the complaint filed by the appellant under Section

138 of the Negotiable Instrument Act (for short the Act) was dismissed.

The appellant filed a complaint under Section 138 of the Act

alleging that in discharge of his legal liability, the respondents had issued

two cheques that is for Rs.1,00,000/- and Rs.9,00,000/- each in favour of

the complainant. However, both cheques were dishonoured leading to the

filing of the complaint under Section 138 of the Act. After preliminary

evidence, the respondents were summoned. Notice of acquisition was

1 of 4

Neutral Citation No:=2023:PHHC:051836

2023:PHHC:051836

served upon them. Evidence was thereafter led by the complainant.

Statement under Section 313 Cr.P.C. was recorded. In defence also, certain

evidence was led.

The trial Court dismissed the complaint and while dismissing

the same, directed the petitioner to refund the sum of Rs.2.71 lacs to the

respondent-complainant with simple interest @ 6% per annum from the

date of receiving the notice dated 26.04.2008 within a period of 15 days

failing which the interest would be enhanced to 12 % per annum.

Aggrieved by the said judgment, the present appeal was

preferred.

I have heard learned counsel for the parties.

Learned counsel for the appellant submits that the appellant is

limiting his claim only to the direction of the trial Court with regard to

refund of the sum of Rs.2.71 lacs along with interest which, in criminal

proceedings could not have been done.

Learned counsel for the respondent has opposed the arguments

advanced by learned counsel for the appellant and has submitted that the

trial Court was justified in ordering the refund of the amount.

I have considered the submissions made by learned counsel for

the parties.

When the appeal was instituted before this Court, the counsel

for the appellant had confined his claim only with regard to the direction

regarding the refund of the amount of Rs.2.71 lacs along with interest. It

finds so mentioned in the order dated 04.03.2014.

Admittedly, the complaint under Section 138 of the Act was

2 of 4

Neutral Citation No:=2023:PHHC:051836

2023:PHHC:051836

filed by the present appellant. After trial, the same was dismissed.

However, while dismissing the complaint the trial Court held is under:

"As a sequel of above mentioned findings and discussions, I am satisfied that the complainant has miserably failed to prove its case against the accused person. Hence, I hereby acquit the accused facing trial of the charges levelled against them for commission of offence, punishable under Section 138 of Negotiable Instrument Act. Their bail and surety bonds stand discharged.

Since, it is admitted fact that accused has given Rs.2.71 lacs as part payment for the machine/crane, hence, complainant is liable to return the same alongwith simple interest at the rate of 6% per annum from the date of receiving the notice dated 26.04.2008 served by the accused to the complainant. Let the said amount be paid within a period of fifteen days, failing which complainant shall be liable to pay the above said amount with interest @ 12% per annum from the date of expiry of fifteen days till the payment. File be considered to record room after due compliance."

In the considered opinion of this Court, there is no provison

under which the complainant could have been directed to refund the amount

paid to him by the respondents accused and if any amount was due towards

them, it would have been open for them to claim the same from the

complainant in accordance with law. The trial Court clearly fell in error by

passing the aforesaid directions regarding refund of the amount which was

clearly beyond the scope of criminal proceedings.

In view of the aforementioned facts and circumstances, while

3 of 4

Neutral Citation No:=2023:PHHC:051836

2023:PHHC:051836

upholding the judgment of the trial Court with regard to dismissal of the

complaint, the direction with regard to refund of the sum of Rs.2.71 lacs

along with interest the set aside, the same being illegally and arbitrary.

Petition is accordingly disposed of.

                                              (VIKRAM AGGARWAL)
12.04.2023                                          JUDGE
himanshu


             Whether speaking/reasoned        :      Yes/No

             Whether reportable               :      Yes/No

Neutral Citation No:=2023:PHHC:051836

4 of 4