Punjab-Haryana High Court
Rajpal Singh vs M/S H Goyal Products Regd on 10 April, 2024
Neutral Citation No:=2024:PHHC:048659
2024:PHHC:048659 RSA-2127-2017 (O&M) -:1:-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-2127-2017 (O&M)
Date of Decision:-10.04.2024
Rajpal Singh
... Appellant
Versus
M/s H Goyal Products Regd.
... Respondent
-.-
CORAM: HON'BLE MRS. JUSTICE RITU TAGORE
-.-
Argued by :-
Mr. Sunny K. Singla, Advocate
for the appellant.
Mr. Aman Bansal, Advocate with
Ms. Chitra Daramwal, Advocate
for the respondent.
-.-
RITU TAGORE, J.
1. Appellant, (defendant before the learned Trial Court) has
preferred this regular second appeal against the judgment and decree dated
18.01.2017 passed by learned First Appellate Court which, reversed the
findings of the learned Trial Court dated 31.10.2015 and decreed the suit of
the respondent (plaintiff before the learned trial Court) for `44,000/- and
interest @ 7 % per annum from the date of issuance of cheque, till
realization, alongwith costs.
2. For sake of convenience, parties to the lis hereinafter, shall be
referred to by their original status in the suit.
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3. The plaintiff, M/s H.S. Goyal Products Regd. Chhanna Road,
Ahmedgarh, District Sangrur, through its partner-Vijay Kumar Goyal,
instituted a civil suit against defendant for recovery of `59,840/- i.e.
`44,000/- as principal amount and `15,800/- as interest from 07.04.2011 to
28.03.2014 @ 1% per month along with pendent lite and future interest, with
averments that it is a registered firm engaged in other businesses, also
manufactures rigid PVC pipes at Chhanna Road, Ahmedgarh.
4. It is asserted that defendant purchased PVC pipes from the firm
vide Bill No.002 dated 07.04.2011 for `44,000/- and issued cheque
No.355799 dated 07.4.2011 in the name of the firm in lieu of payment. The
cheque was presented for its encashment twice but was dis-honoured due to
'insufficient funds'. The defendant was apprised about the same and was
requested to make the payment. However, despite a legal notice and even a
complaint under Section 138 of Negotiable Instruments Act, resulting in
defendant's conviction and sentence vide judgment dated 14.03.2014, the
payment was not made. It is pleaded that defendants' failure to make the
payment constrained the plaintiff to file the extant suit.
5. Upon receiving notice, defendant appeared and filed a written
statement denying purchase of pipes from the plaintiff on 07.04.2011 or
issuing cheque in question for payment of pipes. Instead, the defendant
claimed that he was employed in the plaintiff's firm. Vijay Kumar Goyal, a
partner opened the bank account for him and retained his cheque book with
him. He issued a cheque of `4,000/-, which was misused by Vijay Kumar ,
who made alteration in it by adding a digit '4' before the amount of `4,000/-,
making it as `44,000/-. The defendant pleaded that he has appealed against
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the judgment of his conviction and sentence in a criminal complaint under
Section 138 of Negotiable Instruments Act. On grounds stated above, the
defendant pleaded that plaintiff's suit lacks merit, and should be dismissed.
6. The plaintiff filed the rejoinder, reiterating the stand and denied
the averments of the defendant. From the pleadings of the parties, learned
trial Court framed following issues:-
1. Whether the plaintiff is entitled for recovery of `59,840/-
alongwith interest at the rate of 1% per annum from the defendant
as prayed for? OPP
2. Whether the suit of plaintiff is not maintainable in the
present form? O PD
3. Whether the plaintiff has no cause of action to file the present
suit? OPD
4. Whether the plaintiff has not come to the Court with clean
hands? OPD
5. Relief.
7. The parties led the evidence as detailed in the judgment of
learned trial Court. On appraisal of evidence, learned trial Court dismissed
the suit of plaintiff. The learned Appellate Court did not agree with the
findings recorded by the learned Trial Court and reversed them, holding that
plaintiff proved its case by leading cogent and reliable evidence, while
defendant failed to rebut the same and substantiate his version by any good
evidence. As a result, decreed the suit of the plaintiff as indicated above,
which led to filing of this appeal.
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8. Learned counsel for the appellant submitted that learned
Appellate Court erred in upsetting a well reasoned findings of the learned
trial Court, rendered on sound appreciation of facts and law. Learned
counsel contended that learned Appellate Court failed to appreciate the fact
that appellant was working in the plaintiff's firm, run by Vijay Kumar, a
partner (PW-1), who in his cross-examination admitted that he had helped
the defendant in opening his bank account. This material admission, learned
counsel for the appellant stated that indeed, probalised the version of the
defendant that Vijay Kumar retained his cheque book and manipulated the
cheque Ex.P4 by adding digit '4', against the amount of `4,000/-, whereas
defendant never purchased the pipes nor issued the cheque of `44,000/-
towards the payment of pipes. Learned counsel stated that learned trial Court,
basing its conclusions on evidence, categorically observed that plaintiff
failed to substantiate his case of purchase of pipes by the defendant and
issuance of cheque No.355799 (Ex.P4) thereof. It is stated that learned trial
Court rightly discarded the self-created evidence of the plaintiff with respect
to his ledger books etc. and rightly noted the absence of defendant's
signatures on the disputed bill dated 07.04.2011 (Ex.P3) as well as his
inability to afford pipes of such high value.
9. Learned counsel further stated that defendant had been acquitted
in a criminal case, filed by the plaintiff based on the cheque in question.
However, learned Appellate Court while acknowledging this fact,
conveniently brushed it aside by observing that it has no impact on the case
in hand. Learned counsel stated that acquittal of defendant was indeed a
significant factor supporting the version of the defendant and causing a huge
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blow to the plaintiff's case. It is argued that learned Appellate Court
materially erred in discarding this piece of evidence and in rejecting the
version of the defendant. It is stated that finding of learned Appellate Court
are arbitrary and contrary to the record, liable to be set aside with the
dismissal of the suit of the plaintiff. Accordingly, a prayer is made to allow
the appeal.
10. On the other hand, learned counsel for the respondent-plaintiff
submitted that learned Appellate Court has rightly appreciated the evidence.
The findings are based on the facts and law and should not be interfered
with. It is stated that defendant failed to explain why he issued the cheque
in question. This failure, on the contrary, probalize the plaintiff's version,
which is supplemented by both oral and documentary evidence, which
defendant failed to rebut. The learned counsel for the plaintiff submitted that
admission of the defendant that he made no complaint against Vijay Kumar ,
the partner of the plaintiff-firm, for the alleged misuse of his cheque by him
rather renders defendant's version unbelievable. The learned counsel further
submitted that defendant's acquittal in criminal case, has no bearing on the
case, a proposition of law rightly noted by the learned Appellate Court.
Concluding his arguments, learned counsel stated that appeal should be
dismissed, having no merits.
11. I have heard learned counsel for the parties and have gone
through the record with their valuable assistance.
12. The plaintiff brought a suit for recovery of ₹59,840/-, on the
basis of cheque bearing No.355799 dated 07.04.2011 (Ex.P4) alleged to be
executed by defendant to discharge his liability of payment of PVC pipes
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purchased by him from the plaintiff-firm. It is settled principle of law that in
order to earn the relief as prayed for, the plaintiff has to bring cogent and
reliable evidence.
13. In order to discharge the initial onus that lied upon the plaintiff,
the partner of the firm Sh. Vijay Kumar Goyal appeared as PW-1 and
reiterated the facts of the plaint and also tendered the documentary evidence
i.e. Form C as Ex.P1, Form A as Ex.P2, copy of bill No.002 as Ex.P3,
photocopy of cheque as Ex.P4, copy of balance sheet as Ex.P5, certified copy
of judgment dated 14.03.2014 as Ex.P6, certified copy of cheque as Ex.P7,
certified copy of memo as Ex.P8, certified copy of notice as Ex.P9, charge
sheet as Ex.P10, certified copy of challan as Ex.P11, photocopy of
partnership deed as Mark A, letter of authority as Mark-B.
14. On the other hand, Rajpal Singh, the defendant, appeared as
DW1 and denied having purchased PVC pipes from the plaintiff firm or
issuing a cheque of ₹44,000/- for the payment of sale price of the pipes. He
instead pleaded that Vijay Kumar, the partner of plaintiff-firm, misused the
cheque issued by him for ₹4,000/-, and converted into a sum of ₹44,000/- by
adding a digit '4' before amount of ₹4,000/-. Vijay Kumar forged the cheque
Ex P4.
15. It is settled position of law that plea of fraud needs to be proved
akin to a criminal charge, beyond reasonable doubt, even when taken in civil
proceedings. The general principle of proof of preponderance of probability
required in civil cases is not applicable when plea of fraud is set up. It is
well establish rule of procedure that who takes up the plea of fraud, bears the
burden of proof and must fully discharge it by cogent and reliable evidence
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in support thereof. When version of defendant is tested on these settled legal
principles, it failed to pass the test, for the following reasons:-
1). The defendant has admitted issuance of a
cheque No.355799 dated 07.04.2011 in favour of
plaintiff-firm. However, offered no explanation for
issuing a cheque of `4,000/- in favor of plaintiff-
firm. The Appellate Court has rightly noted this
infirmity in the version of the defendant.
2). The defendant also admitted that he filed no
complaint against Vijay Kumar, partner of the
plaintiff-firm for manipulating and forging the
cheque Ex P4. Had there been manipulation or
forging of the cheque as claimed, there was no
occasion for the defendant to remain silent. This
inaction on part of the defendant made his version
unbelievable and improbable. The learned Appellate
Court noticed the same while concluding against
defending and in favor of the plaintiff, finding his
version more probable.
3). Defendant took the plea that plaintiff added
the digit '4' to the amount of `4,000/- in the cheque
Ex P4 but failed to explain how the word 'four' was
added in the letters, to make 'forty four thousand'.
Evidently, defendant did not examine any
handwriting expert or evidence of the officials of the
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bank, where cheque was presented and dis-honoured
for insufficient funds, to support his claim of
tampering of the cheque Ex P4. This was a material
piece of evidence for the defendant to substantiate
his version. However, for reasons best known to the
defendant, he did not present such an evidence. This
material deficiency was rightly noticed by the
learned Appellate Court, in the case of the defendant,
adversely affecting his version. The admission of
Vijay Kumar Goyal (PW-1) for having helped the
defendant in opening his bank account has not
helped the defendant in proving that the cheque in
question Ex.P4 was ever tampered by Vijay Kumar
as alleged by him.
16. The plaintiff presented sufficient evidence i.e. bill of purchase,
copy of balance sheet to show that firm sold PVC pipes to defendant and
entries regarding sale were recorded in business records kept in their regular
course of their business. The self-made entries carried by any business entity
in ordinary course of their business can be relied upon, unless rebutted by the
adverse party. The defendant failed to rebut the same by leading any
evidence or to establish they were prepared later on. The observations of
learned Trial Court that they are self-creating and therefore not worthy of
reliance, was not a correct approach. Furthermore, the conclusion so drawn
by the learned Trial Court were not supported by any evidence or
circumstance to suspect the entries.
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17. To suspect the plaintiff's version the observations by the learned
Trial Court that bill (Ex.P3) did not bear signatures of defendant is
unwarranted. Firstly, this conclusion lacks evidence, supporting the
customary practice of buyers signatures. Secondly, no such plea was raised
by the defendant in this regard.
18. Furthermore the acquittal of the defendant in criminal case filed
by the plaintiff on the basis of cheque (EX.P4) under Section 138 of
Negotiable Instruments Act is concerned, the observations of the learned
Appellate Court that judgment passed by criminal Court is not binding on the
civil Court cannot be considered flawed. In this regard reliance can be
placed in Seth Ramdayal Jat vs. Laxmi Prasad, 2009(11), SCC 545,
wherein has been observed as follow:-
"It is now almost well settled that save and except for
Section 43 of the Evidence Act which refers to Sections
40, 41 and 42 thereof, a judgment of a criminal Court
shall not be admissible in a civil suit. What, however,
would be admissible is the admission made by a party in
a previous proceeding."
19. Having considered the entire evidence on record, I am of the
view that findings recorded by learned Appellate Court are factually and
legally valid and are upheld.
20. No other plea was raised.
21. Accordingly, present appeal fails and is hereby dismissed with
no order as to costs.
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22. Since the main case has been decided, pending miscellaneous
application(s), if any, are also disposed of accordingly.
( RITU TAGORE)
10.04.2024 JUDGE
Gaurav Sorot
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
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