Himachal Pradesh High Court
The State Of H.P. & Anr vs Sh. Krishan Gopal Butail & Ors on 13 March, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 258 of 2020 Decided on: March 13, 2023
----------------------------------------------------------------------------- The State of H.P. & Anr. .........Appellants .
Versus Sh. Krishan Gopal Butail & Ors. ....Respondents
----------------------------------------------------------------------------- Coram Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting?1 Yes.
-----------------------------------------------------------------------------
For the appellants Rajan Kahol and Mr. Vishal Panwar,
Additional Advocates General and
Rahul Thakur, Deputy Advocate
General, for the appellants.
For the respondents: Mr. Mukul Sood, Advocate, for
r respondent No.1.
Mr. Y.P.Sood, Advocate, for respondent
Nos. 2 and 3.
----------------------------------------------------------------------------- Sandeep Sharma, Judge(oral):
Instant Regular Second Appeal filed under Section 100 CPC, lays challenge to judgment and decree dated 31.10.2019 passed by learned Additional District Judge-III, Kangra at Dharamshala, HP, in Civil Appeal No.22-
P/XIII/2014, affirming the judgment and decree dated 31.08.2012 passed by learned Civil Judge(Senior Division) Palampur, District Kangra, Himachal Pradesh, in Civil Suit No.127 of 2009, whereby suit for recovery having been filed by respondent-plaintiff (hereinafter referred to as the plaintiff), came to be decreed for sum of Rs. 5,15,458/-. 1 Whether the reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 2
2. Precisely, the facts of the case, as emerge from the record are that the plaintiff filed a suit for recovery of Rs. 9,05,971/- alongwith interest at the rate of 10.5% per .
annum from the date of filing of the suit till realization of the suit amount against the defendants, averring therein that he is the owner in possession of the land bearing Khasra No.1025/6 and 1030/8, situated in Mohal Badrana, Mouza Paprola, Tehsil Baijnath, District Kangra, H.P. Plaintiff alleged that on 7.5.1999, defendant/respondent No.2, Ajay Butail lodged a false report, as a consequence of which, FIR No.49/1999, under Sections 379 and 447 of IPC was registered against him at Police Station, Baijnath. During the course of investigation, SHO police station, Baijnath (appellant/ defendant No.2) took into possession cheque No.650633, dated 26.6.2000 for sum of Rs.3,42,767/- issued in favour of the plaintiff by Palampur Co-operative Tea Factory, as cost of wood supplied by him to the said factory alongwith 1300 quintals fuel wood from his house. Plaintiff averred that though in aforesaid FIR, he was tried by Judicial Magistrate First Class, Baijnath, but was finally acquitted of the charges framed under Sections 379 and 447 of IPC vide judgment dated 3.5.2004, passed in Criminal Case No.122/II/2000 and the case property i.e. 1300 quintals fuel wood and cheque ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 3 amount was ordered to be released to the rightful owner. Plaintiff averred that on 20.09.2004, he moved an application under Section 452 Cr.P.C., praying therein to release the case property in his favour. Defendant Nos. 3 and 4 also filed .
similar application, seeking release of fuel wood, however learned Additional Chief Judicial Magistrate, Baijnath vide order dated 11.1.2007 declared plaintiff to be rightful owner of the cheque amount and fuel wood and application of defendants No.3 and 4 was dismissed. Defendants No.3 and 4 challenged the order dated 11.01.2007 before learned Sessions Judge, Kangra at Dharamshala, however learned Sessions Judge, Kangra vide judgment dated 20.5.2008 passed in Criminal Appeal No.2-b/x/2007 dismissed the appeal. Since no appeal was further filed against aforesaid order passed by learned Sessions Judge, order dated 11.1.2007 passed by learned Additional Chief Judicial Magistrate came to be upheld. After disposal of appeal by learned Sessions Judge, plaintiff filed an application before learned Judicial Magistrate First Class, Baijnath for implementation of orders dated 11.1.2007 and 22.5.2008. Learned Judicial Magistrate First Class, Baijnath vide order dated 5.6.2008 directed SHO Police Station, Baijnath to release the amount of Rs.3, 42, 767/- and 1300 quintals fuel wood to him. However, on 15.09.2008, SHO Police Station, Baijnath vide receipt dated 15.09.2008 got ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 4 possession of 322 quintal of fuel wood out of 1300 quintal of fuel wood delivered to him that too in rotten, spoiled, damaged, wet and drenched in water. SHO, Police Station, Baijnath vide receipt dated 6.6.2008 paid a sum of Rs. 3, 42,767/ to the .
plaintiff, which was received by him under protest. Plaintiff further averred that since investigating Officer had deposited the cheque amount with State Bank of India in the name of SHO, Police Station, Baijnath, he ought to have been paid interest with effect from 26.6.2000 to 6.6.2008 on the aforesaid amount. He also claimed that since entire quantity of fuel wood i.e. 1300 quintal was not released in his favour, he is entitled to be compensated qua the remaining quantity of 978 quintal at the rate of Rs. 360 per quintal, at the prevalent rate. Plaintiff claimed that amount of Rs. 3,42,767/- remained deposited in the name of SHO, Police Station, Baijnath for a period of eight years and as such, he is entitled to interest qua aforesaid period. He averred that had he deposited the aforesaid amount in fixed deposit, he would have got Rs. 7, 80, 738/-on maturity and as such, defendant Nos. 1 and 2 are liable to pay sum of Rs. 4, 37,971/- to him. Plaintiff served defendants with legal notice on 9.1.2009, wherein appellant/ defendant Nos.1 and 2 admitted the entire case, except payment of interest.
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3. Aforesaid claim put forth by the plaintiff came to be resisted by appellant/defendant Nos.1 and 2 by filing written statement, wherein facts, as have been noticed hereinabove, have been duly admitted. Appellant/defendant .
Nos.1 and 2 admitted that they had taken cheque in question as case property and for safe custody deposited the same in the bank account of SHO, Baijnath. However, they claimed that cheque was deposited in current account and as such, no interest was paid by the bank. Appellant/defendant Nos.1 and 2 further averred in the written statement that 1300 quintal fuel wood taken into possession was handed over to defendant No.3 on supurdari. While fairly admitting factum with regard to acquittal of the plaintiff of charges by learned Judicial Magistrate First Class, Baijnath vide judgment dated 3.5.2004, defendant also admitted that direction was also issued to get the case property released to the rightful owner. They also admitted that 322 quintals fuel wood was only returned to the plaintiff, however they claimed that fuel wood was handed over to defendant No.3 for safe custody and as such, it was the duty of defendant No.3 to preserve the case property during the trial.
4. Defendants No.3 and 4 though admitted the entire facts, as narrated hereinabove, but denied plaintiff to be owner in possession of the suit land. They claimed that suit is owned ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 6 and possessed by them. They also denied factum with regard to their having lodged false case against the plaintiff. However, admitted that during the course of investigation, investigating officer had taken into possession cheque No.650633, dated .
26.6.2000 for sum of Rs. 3,42,767/-. Defendants No.3 and 4 claimed that fuel wood was illegally felled by the plaintiff from their land and sold to the Palampur Co-operative Tea factory. They also claimed that 1300 quintals fuel wood taken into possession by the Investigating Officer was illegally felled by the plaintiff from their land. While admitting factum with regard to finality attached to the order and judgment passed by trial Court and the Court of learned Sessions Judge, defendants No.2 and 3 claimed that they were not aware of the fact that State had not filed any appeal against the judgment and had they been aware of the fact that no appeal has been filed against the judgment dated 3.5.2004, they would have taken legal recourse against the said judgment as per law. Defendants No.3 and 4 claimed that fuel wood was not weighed at the time of handing over on supardari and even the fuel wood was never removed by defendant No.3 from the premises of the plaintiff and the same remained on the land of the plaintiff only. They categorically denied that fuel wood was reduced in quantity to 322 quintals and the plaintiff is entitled ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 7 to recover the price of the fuel wood amounting to Rs.3,52,080/- from them.
5. On the basis of aforesaid pleadings adduced on record by the respective parties, learned trial Court framed .
the following issues:
"1. Whether the plaintiff is entitled for the recovery of Rs. 9, 05,971/- alongwith interest, as prayed for?
... OPP
2. Whether suit of the plaintiff is within time?
..OPP
3. Whether case property i.e. 322 out of 1300 quintal fuel wood by the supurdar was returned to the plaintiff in bad condition and also in rotten condition, as alleged?
r OPD 3 & 4
4. Whether plaintiff is entitled for interest on the suit amount from defendants No.1 and 2 as alleged?
OPP
5. Whether the suit is not maintainable in the present form?
OPD
6. Whether the plaintiff had cut the trees from the land of defendants No.3 and 4 and remove the same?
OPD 3 & 4.
7. Relief."
6. Subsequently, on the basis of the pleadings as well as evidence led on record by the respective parties, learned trial Court vide judgment dated 31.08.2012, decreed the suit of the plaintiff for sum of Rs. 5, 15, 458/-. Since appellant/defendant No.1 came to be saddled with liability to ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 8 pay aforesaid decreetal amount, it filed appeal before learned Additional District Judge-III, Kangra at Dharamshala, but same was also dismissed vide judgment dated 31.10.2019. In the aforesaid background, appellants have approached this .
Court, in the instant proceedings, praying therein to set-aside the judgment and decree passed by Court below and dismiss the suit for recovery having been filed by the plaintiff.
7. Though, vide order dated 3.11.2020, this Court after having issued notice to the respondent-plaintiff, stayed the operation of impugned judgment and decree passed by learned Additional District Judge, Kangra at Dharamshala, subject to deposit of entire decreetal amount, within a period of eight weeks, but since at the time of admission of appeal, learned Advocate General was unable to point out substantial question of law, if any, arises for consideration and as such, matter was ordered to be listed today for final disposal at admission stage.
8. Mr. Vishal Panwar, learned Additional Advocate General while making this Court to peruse evidence adduced on record by the respective parties vis-à-vis reasoning assigned in the impugned judgment and decree passed by learned Additional District Judge, Kangra, states that court below has failed to appreciate the evidence in its right perspective, as a consequence of which, findings to the detriment of the ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 9 appellants have come to fore. He submitted that when it was pleaded by the defendants that cheque taken into possession by the police during investigation was deposited in the current account and no interest thereupon was earned by the .
department, there was no occasion, if any, for Court below to award interest over the cheque amount for the period it remained deposited with the bank. Learned Additional Advocate General further states that since it is not in dispute that 1300 quintals of fuel wood was given on supurdari to defendant No.3 and out of which, only 322 quintals fuel wood could be recovered, there was no occasion, if any, for the Court below to saddle the appellant-defendant with liability to pay sum of Rs. 3, 52,080/- on account of loss of fuel wood, rather such amount ought to have been recovered from defendant No.3, to whom1300 quintals of fuel wood was given on Supurdari.
9. Mr. Mukul Sood, learned counsel representing the respondent-plaintiff submitted that there is no illegality and infirmity in the impugned judgment and decree passed by learned Additional District Judge, Kangra and same being based upon proper appreciation of the facts as well as evidence deserves no interference. He further submitted that otherwise also, no substantial question of law arises for consideration of this Court and as such, present appeal filed by the ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 10 appellant/defendant otherwise deserves dismissal at its threshold. He further submitted that there is no error or illegality committed by Court below while returning the finings qua question of facts. While making this Court to peruse .
provision under Section 100 CPC, he states that otherwise also Court while exercising power under section 100 CPC is estopped from going to the question of facts, rather jurisdiction, if any, under this provision can be exercised if substantial question of law arises for determination. Since learned Additional Advocate General has not been able to point out perversity, if any, in the impugned judgment, appeal having been filed by the appellant-defendant deserves dismissal.
10. Having heard learned counsel representing the parties and perused material available on record vis-à-vis reasoning assigned in the impugned judgment and decree passed by learned Additional District Judge, Kangra, this Court finds no force in the submissions of learned Additional Advocate General, as have been noticed hereinabove. As has been noticed hereinabove, there is no denial of the fact that plaintiff was acquitted of the charges framed against him under Sections 379 and 447 of IPC in FIR No.49/1999. It is also not in dispute that in aforesaid FIR, appellant/defendant No.2 had taken into his custody cheque No.650633, dated ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 11 26.6.2000 for sum of Rs. 3,42, 767/- and same was deposited by him in the bank account of SHO, police Station, Baijnath at State Bank of India, Palampur. Similarly, it is not in dispute that in aforesaid FIR, appellant/defendant had taken into .
possession 1300 quintals fuel wood from the possession of the plaintiff and handed over the same on supardari basis to defendant No.3 for safe custody. It is not in dispute that after acquittal of plaintiff in aforesaid criminal case, learned Judicial Magistrate First Class, Baijnath vide order date 11.01.2007 allowed the application filed by plaintiff under Section 452 Cr.P.C., for release of case property and directed the appellant/defendant to return the amount of cheque and 1300 quintals fuel wood given on supardari to defendant No.3, Sh. Ajay Butail. Though, aforesaid order was taken into appeal by defendant Nos. 3 and 4 in the Court of learned Sessions Judge, Kangra, but same was dismissed. It is also admitted that only 322 quintal fuel wood that too in rotten, spoiled, damaged, wet condition was delivered to the plaintiff on 15.09.2008 and such, fact has been duly admitted by defendant Nos. 1 and 2. It has been also admitted that on 6.6.2008, sum of Rs. 3, 42, 767/- was given to the plaintiff Sh. Krishan Gopal Butail without any interest and SHO, police Station, Baijnath has deposited the cheque No.650633, dated 26.6.2000 for sum of Rs. 3,42,767/- in current account of ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 12 SHO, police Station, Baijnath. Both the facts, as have been recorded hereinabove, have been duly admitted by defendant Nos. 1 and 2 in the written statement as well as while making their deposition before the trial Court.
.
11. Plaintiff by way of suit claimed the price of 978 quintals fuel wood at the rate of 360/- per quintal and the amount of interest at the rate of 10.5% on the amount of Rs. 3,42,767/- w.e.f. 26.6.2000 to 6.6.2008 when cheque remained deposited with the bank at Palampur. In the case at hand, plaintiff with a view to substantiate his pleas, as have been taken note hereinabove, successfully proved on record that he was rightful owner of 1300 quintals wood as was held by learned Additional Chief Judicial Magistrate, Baijnath while acquitting him of the charges framed against him under Section 379 and 447 of IPC. He successfully proved on record that after his being acquitted, he filed an application under section 452 Cr.P.C, for release of case property, which was allowed. Even at that stage defendants No.3 and 4 contested the application filed by the plaintiff and also filed separate application under Section 452 Cr.P.C. for release of case property, but Court below though allowed the application for release of case property filed by the plaintiff, but dismissed the application filed by defendants No.3 and 4. Though, pattern of cross-examination, if conducted upon the plaintiff's witnesses ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 13 is perused, attempt was made by appellant/ defendant and defendants No.3 and 4 to carve out a case that case property i.e. fuel wood was illegally and unauthorizedly cut from the land belonging to them, but such fact, if any, is of no .
consequence and relevance in the present case, especially when plaintiff stands acquitted of the charges framed against him under Sections 379 and 447 of IPC. Moreover, appellants/defendants No.1 and 2 and defendants No.3 and 4 never laid challenge, if any, to the judgment of acquittal passed by learned Additional Chief Judicial Magistrate, rather they contested the application filed by the plaintiff under Section 452 Cr.P.C for the release of case property but same was also dismissed. Though, defendant Nos. 3 and 4 filed appeal against the order passed by learned Additional Chief Judicial Magistrate, Baijnath thereby dismissing their application under Section 452 Cr.P.C for release of case property, but same was also dismissed. Since it is not in dispute that in FIR No.49/1999, cheque amount of Rs.3,42,767/- alongwith 1300 quintals fuel wood was kept as case property by the police and learned Additional Chief Judicial Magistrate, had ordered to refund/release aforesaid case property, no illegality can be said to have been committed by the Court below while decreeing the suit, having been filed by the plaintiff.
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12. Though, it has been claimed on behalf of the appellant/defendant that no interest was earned by them qua the cheque amount deposited in the bank account of SHO, police Station, Palampur, but since it is not in dispute that .
sum of Rs. 3, 42, 767/- was paid to the plaintiff by Palampur Co-operative factory on account of his having sold 1300 quintals fuel wood, coupled with the fact that petitioner was acquitted of the charges framed against him under Section 379 and 447 of IPC, plaintiff has been rightly held entitled for interest to the tune of Rs. 1, 63, 378/-. Had plaintiff deposited aforesaid cheque amount in his bank account, he would have earned interest on the same. Though, cheque amounting to Rs. 3, 42,767/- was taken into possession by SHO, police Station, Baijnath on 26.6.2000, but admittedly same was returned to him on 6.6.2008 and as such, he is entitled to interest w.e.f.26.6.2000 to 6.6.2008. Similarly, since it is not in dispute that 1300 quintals fuel wood was kept as case property by appellant/defendant No.1, it was his duty to get the same refunded/released to the plaintiff after passing of order of refund of case property by learned Additional Chief Judicial Magistrate, Baijnath, which has attained finality. Though, defendants have taken plea that since 1300 quintals of fuel wood was given on supardari to defendant Nos. 3 and 4, Court below ought to have saddled the liability to pay ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 15 compensation qua shortfall, if any, of the fuel wood against defendants No.3 and 4, but bare perusal of order passed by learned Additional Chief Judicial Magistrate, itself suggests that direction was issued to SHO, police Station, Baijnath to .
get possession of fuel wood given on supardari to the plaintiff. Moreover, this Court finds that at no point of time, Court below, if any, had ordered SHO, police Station, Baijnath to give the case property on supardari to third party, rather it was duty of SHO, police Station, Baijnath to keep the same in safe custody. When it is not in dispute that 1300 quintal fuel wood was taken into possession by SHO, police Station, Baijnath and after acquittal of plaintiff only 322 quintal of fuel wood was returned to the plaintiff, Court below rightly directed appellant/defendant No.1 to pay sum of Rs. 3, 52,080/- at the rate 360/- per quintal prevalent at that time. SHO, Baijnath being servant of the Sate had seized the case property i.e. money as well as fuel wood on behalf of the State and as such, it is otherwise liable to refund/return the same after acquittal of the accused, especially when same was ordered to be refunded/returned by the competent court of law. For the loss, if any, caused to the case property, plaintiff is well within its right to claim damages from the State. Since, it has come on record that 1300 quintals fuel wood was handed over to defendant No. 3 on supardari, it is always open for SHO, ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 16 appellant/defendant No.2, if legally permissible, to initiate proceedings against defendant no.3 for not making available entire quantity of fuel wood, which was given to him on supardari basis.
.
13. After having perused the entire evidence, be it ocular or documentary, adduced on record by the respective parties, this Court finds no illegality and infirmity in the impugned judgment and decree passed by learned Additional District Judge, which appears to be based upon proper appreciation of facts as well as law. During proceedings of the case, learned Additional Advocate General has not been able to point out any perversity, if any, in the impugned judgment, compelling this Court to infer mis-appreciation and misinterpretation of the evidence led on record, rather this Court finds that no question of law muchless substantial arises for determination in the instant case
14. Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, wherein it has been held as under:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 17 and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings .
recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
(p.269)
15. Aforesaid exposition of law clearly suggests that High Court, while excising power under Section 100 CPC, cannot upset concurrent findings of fact unless the same are shown to be perverse. In the case at hand, this Court while examining the correctness and genuineness of submissions having been made by the parties, has carefully perused evidence led on record by the respective parties, perusal whereof certainly suggests that the Courts below have appreciated the evidence in its right perspective and there is no perversity, as such, in the impugned judgments and decrees passed by both the Courts below. Moreover, learned counsel representing the appellants was unable to point out perversity, if any, in the impugned judgments and decrees passed by both the Courts below and as such, same do not call for any interference.
16. Consequently, in view of the detailed discussion made hereinabove, this Court sees no illegality and infirmity in the impugned judgments and decrees passed by courts below, which otherwise appear to be based upon proper appreciation of evidence and as such, same are upheld. The present appeal fails ::: Downloaded on - 16/03/2023 20:32:19 :::CIS 18 and same is accordingly dismissed. Interim directions, if any, are vacated. All miscellaneous applications are disposed of.
(Sandeep Sharma) .
Judge
March 13, 2023
(shankar)
r to
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