Punjab-Haryana High Court
Gurbachan Singh vs Kirtan Singh Throu P.A. Kulwinder Singh on 11 January, 2024
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
112 RSA-982-2019 (O&M)
Date of Decision: 11.01.2024.
Gurbachan Singh ...Appellant.
Versus
Kirtan Singh ....Respondent.
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CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
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Present: Mr. P.K.S. Phoolka, Advocate
for the appellant.
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Sukhvinder Kaur, J.
The instant Regular Second Appeal has been filed against the
concurrent findings recorded by both the Courts below.
2. Brief facts of the case as per plaint are that plaintiff filed a suit
for recovery alleging that defendant is relative of the plaintiff and was
working as Assistant Manager in State Bank of India. Plaintiff was working
as an LIC agent. In the year 2009, defendant told the plaintiff that he could
arrange a job for his wife as there were vacancies of peons in their bank and
demanded Rs.2,00,000/- for this purpose. It was decided that Rs.50,000/-
would be given in advance and remaining amount would be paid only after
getting of the job by wife of plaintiff. The defendant had assured the
plaintiff that the said job would be arranged by 16.05.2011 and if he could
not do so then he would return the money. On this assurance given by the
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defendant, the plaintiff paid Rs.50,000/- to the defendant on 08.04.2009 in
presence of his wife. When the defendant could not arrange the job for wife
of plaintiff, then plaintiff demanded back the amount given by him for this
purpose. Defendant issued a cheque bearing No.950989 dated 16.05.2011
out of his account with State Bank of India in favour of the plaintiff but
when this cheque was presented for encashment, the same was dishonoured
with the remarks 'account closed'. Upon this plaintiff, again approached the
defendant who assured him that he would soon make the payment to him
but in vain. The plaintiff filed a complaint with the police in which
compromise was effected between the parties and the defendant had
promised to pay the amount by 10.11.2013, but no payment was made by
the defendant.
3. The suit of the plaintiff was decreed by the trial Court, vide
judgment and decree dated 30.01.2018. The appeal preferred before the First
Appellate Court was dismissed, vide judgment dated 07.09.2018 and
judgment of the trial Court was upheld. Hence, the present Regular Second
Appeal.
4. Learned counsel for the appellant/defendant has contended that
both the Courts below have not appreciated the evidence led by the
appellant/defendant in right perspective. The respondent/plaintiff neither
filed any complaint under Section 138 of Negotiable Instruments Act, 1881
nor any notice on the basis of the above said cheque was issued. So
apparently, the present suit has been filed by the respondent/plaintiff by
misusing the said cheque, as amount of said cheque was paid in cash by the
appellant/defendant to respondent/plaintiff on 10.11.2013. The respondent/
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plaintiff did not return the cheque by saying that he had misplaced it. He has
submitted that respondent/plaintiff also could not prove that he had paid any
money to the appellant/ defendant for getting job for his wife.
5. I have heard learned counsel for the appellant and gone through
the records thoroughly.
6. There is concurrent findings of both the Courts below that the
plaintiff is entitled to recovery of Rs.50,000/- from the defendant alongwith
interest @ 6% per annum from the date of filing of the suit till date of
repayment. The case of the plaintiff is that he had given Rs.50,000/- to
defendant to get job for his wife, whereas plea of defendant is that he had
taken a loan of Rs.40,000/- from the plaintiff in discharge of which liability,
the cheque in question (Ex.P-1) was issued to him. It has been proved on
record that the said cheque was dishonoured by the bank due to closure of
account of the defendant. The defendant had taken the specific plea that he
had returned the money to the plaintiff but did not obtain any receipt from
him and plaintiff told him that he had misplaced the cheque.
7. In this case, the alleged payment was made by the defendant to
the plaintiff, when the cheque issued by the defendant had already been
dishonoured and the matter had also gone to the police. In such
circumstances, every prudent man would get receipt of the payment made
by him. so this oral version of appellant/ defendant does not inspire
confidence that he had made the payment to the plaintiff on 10.11.2013 in
the presence of his wife. Even the said oral evidence adduced by the
defendant is not reliable. In the written statement, it has been pleaded by the
defendant that the money was returned in presence of Tota Singh and there
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is nothing in the written statement about presence of DW2 Jaswant Singh at
that time. If the plaintiff did not opt to file a complaint under Section 138 of
Negotiable Instruments Act, 1881, when the said cheque was dishonoured,
then it has no adverse bearing on the case of the plaintiff as it was for the
plaintiff to chose which proceedings he wanted to initiate against the
defendant.
8. For the reasons recorded above, the present Regular Second
Appeal must fail as it does not raise any question of law much less
substantial question of law.
9. Appeal stands dismissed.
10. All pending applications, if any, also stand disposed of
accordingly.
(SUKHVINDER KAUR)
JUDGE
11.01.2024.
komal
Whether speaking/ reasoned : Yes/ No
Whether Reportable : Yes/ No
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