Delhi District Court
Sh. Sachin Gupta vs Sh. Shiv Kumar Bansal on 31 July, 2018
IN THE COURT OF SH. SIDHARTH SHARMA
ADDITIONAL DISTRICT & SESSION JUDGE
KARKARDOOMA COURTS : DELHI.
RCA DJ No. 27/17
IN THE MATTER OF :
Sh. Sachin Gupta,
S/o. Sh. Rakesh Kumar Gupta,
At 3482, Chawri Bazar,
Delhi.
............. APPELLANT
VERSUS
Sh. Shiv Kumar Bansal,
Proprietor of M/s. Bansal and Company,
At A 14, Priyadarshini Vihar,
Delhi : 110 092.
...............RESPONDENT
Date of institution : 08.02.2017
Date of reserve of order : 30.07.2018
Date of Judgement : 31.07.2018
J U D G E M E N T :
1 This criminal appeal u/s. 96 of CPC is against the
impugned judgement and decree dated 23.12.2016 passed by Ms. Sadhika Jalan, Civil Judge, East District, Karkardooma Court, Delhi in Civil suit no. 8080/16 titled as Shiv Kumar Bansal vs. Sachin Gupta Sachin Gupta vs. Shiv Kumar Bansal RCA No. 27/17 Page no. 11 out of 11 which was the recovery suit against the appellant for a sum of Rs. 2,05,312/ alongwith future and pendentelite interest.
2. The brief facts in the plaint as stated by the plaintiff / respondent were that he was proprietor of M/s. Bansal and Company and was indulged in the business of sanitary hardware and supplied the goods to the appellant / defendant as per order placed by the appellant. The total goods were of Rs. 2,05,312/ vide invoice no. RL/2/201112 dated 15.4.2011. The appellant gave him a cheuqe bearing no. 096885 dated 18.5.2011 drawn on IDBI bank, Vaishali, Ghaziabad, UP of Rs. 50,000/ which was subsequently dishonoured in favour of the respondent company as a part payment of his liabilities and assured the plaintiff that cheque would be encashed on presentation, however, upon presentation the said cheque was dishonoured with remarks "payment stopped by drawer" vide cheque returning memo dated 13.06.2011. The plaintiff contacted the appellant to inform about the dishonoured cheque and requested for payment but defendant refused to pay the same. Thereafter, a legal notice dated 30.6.2011 was issued by the plaintiff which was received back with the endorsement 'Unclaimed / intimation delivered'. The appellant filed his Written statement alongwith the counter claim for recovery of Rs. 15,000/ stating that plaintiff had suppressed material facts and denied his liability and filed a counter claim for a sum of Rs. 15000/ alongwith damages for supplying inferior goods. It was case of the appellant that he never placed any order dated 15.11.2011 on the respondent for supplying of goods. However, in the month of April, 2011, the appellant placed an order to the respondent for Sachin Gupta vs. Shiv Kumar Bansal RCA No. 27/17 Page no. 11 out of 11 supplying some sanitary goods worth of Rs. 65000/ and paid a sum of Rs. 15,000/ in cash and further handed over a cheque of Rs. 50,000/ bearing cheque no. 096885 dated 18.5.2011 of IDBI bank subjected to delivery of goods as per order. The respondent supplied the goods to the appellant but on checking it was noticed that the goods delivered were of inferior quality and when the appellant contacted the respondent and made the complaint in this regard, the respondent expressed his apologies and showed his willingness to have the goods returned back. Therefore, on 30.05.2011, the brother of the respondent Sanjeev Bansal came and received back the goods supplied by the respondent after acknowledging the same and signing a return memo with the assurance that the balance payment of Rs. 15,000/ shall be returned. However, neither the payment of Rs. 15000/ nor the cheque issued by appellant was returned but the same was presented by the respondent in his bank which was subsequently dishonoured.
3. On the pleadings of the parties issues were framed by Ld. Civl Judge.
4. Plaintiff examined the Ahlmad of the court where the case u/s. 138 Negotiable Instrument Act was pending as PW1. He examined himself as PW2.
5. Defendant examined himself as DW1. The respondent did not cross examine the appellant before Ld. Civil Judge.
6. Vide judgement dated 23.12.2016, the suit of the plaintiff was decreed alongwith pendentelite and future interest.
7. Ld. Counsel for the appellant has challenged the said Sachin Gupta vs. Shiv Kumar Bansal RCA No. 27/17 Page no. 11 out of 11 judgement/decree by way of present appeal on the grounds that the impugned judgement has been passed without going through the pleadings of the parties and without going through the evidence and documents relied upon by the parties. He has further argued that respondent had taken contradictory stand in the crossexamination in the civil suit then from the crossexamination in the in his complaint u/s. 138 Negotiable Instrument Act. He has further pointed out that appellant has no shop at Chawri Bazar and there is no person with the name of Ram Pratap as his employee with whom goods were stated to have been supplied. He has further pointed out that plaintiff has failed to produce any document / delivery receipt challan which shows that goods were supplied to the defendant no. 2. He has further pointed out that inspite of objection taken in the Written statement with the acknowledgement receipt dated 30.5.205 of the inferior goods returned by appellant to the respondent was in the hand writing of the brother of the respondent but plaintiff did not examine him either in the present suit or in the complaint u/s. 138 Negotiable Instrument Act for which adverse inference taken against the case of the plaintiff. As further pointed out the contradiction that before the MM court, the plaintiff stated in his crossexamination that he had supplied the goods at the address of the defendant upon his instructions. However, in the civil suit, he stated that one Ram Pratap employee of the appellant had come to collect the goods. Lastly, it has been argued that ld. Trial court had wrongly refused to rely upon the acknowledgement receipt issued by brother of respondent as the original was not produced by ignoring with the Sachin Gupta vs. Shiv Kumar Bansal RCA No. 27/17 Page no. 11 out of 11 original of the said acknowledgement was in the judicial file of complaint u/s. 138 Negotiable Instrument Act.
8. The respondent filed his reply wherein supporting the judgement of trial court stating that there is no illegality or infirmity in the said order and therefore, prayed for dismissal of the present appeal.
9. I have heard the arguments and have gone through the TCR as well as the impugned judgement.
10. Before coming to the present case, it has been brought to my knowledge that the appellant were convicted vide order dated 13.11.2017 for offence u/s. 138 Negotiable Instrument Act against which the appellant filed an appeal before Sh. Pulastya Pramachala, Special Judge (PC Act) CBI, East District, Karkardooma court, Delhi after hearing the parties, Ld. ASJ allowed the appeal and acquitted the appellant Sachin Gupta.
11 Thus, it is settled law that in order to rebut the presumptions, appellant could rely upon the inconsistencies or improbabilities arising out of case or evidence of the complainant. The case of plaintiff had been that he had supplied certain goods worth Rs.2,05,312/ vide a particular invoice Ex.PW1/A and cheque in question was given to him towards part payment of the consideration amount against aforesaid invoice. However, in the Written statement, appellant took plea that he did not have any liability towards plaintiff because there were some goods worth Rs.65,000/, which were returned back to the brother of plaintiff namely Mr. Sanjeev Bansal who had even signed a return memo of the goods on 30.05.2011. Appellant projected Sachin Gupta vs. Shiv Kumar Bansal RCA No. 27/17 Page no. 11 out of 11 same defence during crossexamination of plaintiff and plaintiff was crossexamined accordingly so as to discredit his claim. There was a dispute raised by appellant that he had no concern with alleged shop at Chawri Bazar, which is so mentioned in invoice Ex.PW1/A. It was admitted by plaintiff that he was running a family business of sanitary goods and during initial part of his crossexamination he further admitted that his brother Sanjeev Bansal also helped him in this family business. He also admitted that in April 2011 itself, he sold goods to the accused apart from the transaction in question. But he denied the suggestion that appellant had returned any inferior goods. plaintiff was confronted with return memo of goods allegedly written and signed by his brother Sh. Sanjeev Bansal, but plaintiff failed to take any stand in respect of handwriting and signature of his brother on the same. This memo was exhibited as Mark A. (original memo is in criminal case file between the same parties). He deposed that he could produce his brother Sanjeev Bansal before the court to identify this endorsement on Mark A. However, it is admitted situation that Mr. Sanjeev Bansal was not so produced by the plaintiff.
12 In his subsequent crossexamination, plaintiff deposed that he could identify handwriting of his brother, still he could not say whether signature appearing on Ex.PW1/X1 pertained to his brother or not. This time, he denied that his father and brother were working with him in his business. Thus, it is apparent that plaintiff contradicted his previous statement in the later part of his crossexamination. plaintiff further went on to say that the goods vide invoice Ex.PW1/A Sachin Gupta vs. Shiv Kumar Bansal RCA No. 27/17 Page no. 11 out of 11 were taken by Mr. Ram Pratap from his shop. He further deposed that said Ram Pratap had never taken any good from his shop prior to transaction in question. Appellant took stand that the said Ram Pratap was not his employee and plaintiff denied this suggestion. It was admitted by plaintiff that there had been prior transactions with appellant and he deposed that he could bring acknowledgement of delivery of goods given by accused, but he did not produce so. 13 Ld. Counsel for the plaintiff and Civil Judge has taken the stand that onus was upon the defendant to call Sanjeev Bansal to prove his handwriting and the signatures on the returning memo but Ld. Counsel for appellant submitted that it was for plaintiff to rebut the contentions made in Written statement by producing his brother before the court.
14 It is to be seen that Sanjeev Bansal is the real brother of the plaintiff and as per the version of plaintiff he was helping him in the family business. The plaintiff himself had stated before the Ld. MM that he could produce his brother Sanjeev Bansal before the court but neither he examined him in the present case nor in the complaint u/s. 138 Negotiable Instrument Act. Mr. Sanjeev Bansal was the material witness of the plaintiff so as to dispel. The plea taken by appellant in his defence in his Written statement that he had returned the goods worth Rs. 65000/ to brother of the plaintiff who had signed on returning memo on 30.5.11.
15 Govind Raju v. State (2012) 4 SCC 722, Supreme Court dealt with the principles of adverse inference and observed that Sachin Gupta vs. Shiv Kumar Bansal RCA No. 27/17 Page no. 11 out of 11 withholding material witnesses, who could have stated precisely and cogently the events as they occurred, could amount to a ground for raising adverse inference. Same court in the case of Thakaji Hiraji v. Thakore Kubersing, 2001 (6) SCC 145, explained that "material witness is one, who would unfold the genesis of the incident or an essential part of the prosecution case."
16 It is seen that the material witness Sanjeev Bansal was under better control of the plaintiff and the onus laid upon the plaintiff to prove his case and dispel the defence taken by the defendant. Plaintiff himself had admitted that he could identify the handwriting of his brother Sanjeev Bansal but he neither admitted nor admitted the contents of the Written statement to be in the handwriting of his brother Sajeev Bansal which creates adverse inference against the plaintiff. 17 Most importantly, plaintiff relied upon Ex.CW1/1 to claim that he delivered goods worth Rs.2,05,312/ to the appellant. In his plaint or affidavit he had not explained that where did he deliver such goods to the appellant. During his crossexamination, he kept denying the suggestion that no goods used to be delivered at Chawri Bazar as mentioned in the invoice. However, during later part of his cross examination only, he came up with plea that Mr. Ram Pratap had taken goods from his shop. Such plea was taken only after the appellant pointed out that his shop was situated in Vaishali, Ghaziabad and to deliver the goods at this shop Form38 was required. This Form38 may connote to the requirement under provision of Sales Tax/Vat for inter state delivery of the goods. Since plaintiff was not having any such Sachin Gupta vs. Shiv Kumar Bansal RCA No. 27/17 Page no. 11 out of 11 form, therefore, there was no way out for him, but to claim that such goods were lifted from his shop only.
18 In that present suit, plaintiff during his crossexamination had claimed that he had supplied goods to said Ram Pratap prior to present transaction as well and he had taken his signature during prior transactions as well. But he could not produce the same. Such stand was taken by plaintiff on 11.09.2015. At that time also, same appellant had suggested him that such Ram Pratap was not his employee. Thereafter, when plaintiff was crossexamined in this proceeding on 19.04.2016, apparently he had become wiser. In view of having knowledge of stand taken by appellant that Ram Pratap was not his employee, during his crossexamination dated 19.04.2016 before MM, he came up with contradictory plea that Ram Pratap had never taken any goods from his shop prior to transaction in question. This plea was taken because plaintiff could not have produced any record of receipt of goods by Mr. Ram Pratap on behalf of appellant during any of the prior transactions. Appellant was not required to lead any evidence to say that Ram Pratap was not his employee because no one is expected to lead negative evidence. It was onus of the plaintiff to prove that the goods vide receipt Ex.PW1/A were actually delivered to Mr. Ram Pratap, who had been working for the appellant and this could have been shown by producing similar kind of receipt of delivery of goods by Mr. Ram Pratap in the past admitted transactions between the parties. 19 Therefore, the contradictory stand taken by plaintiff from the one taken during criminal litigation, was to get rid of the Sachin Gupta vs. Shiv Kumar Bansal RCA No. 27/17 Page no. 11 out of 11 requirement to prove that Mr. Ram Pratap had been acting for appellant during prior transactions also. It is true that the previous statement recorded in civil litigation was not confronted to the plaintiff during his crossexamination in the present proceedings. However, when this is undisputed fact that this civil litigation was going on between the parties in respect of same transaction, then certified copy of such statement becomes admissible in the evidence and same can be looked into for limited purpose to analyze that what was the stand taken by plaintiff in respect of same fact during different point of time. Therefore, I have referred to aforesaid contradictions in respect of same fact and the improvements made by plaintiff during his crossexamination in the present proceedings. Such contradictions and improvements have an effect to create a doubt over the credibility of statement given by the plaintiff.
20 Thus, I find that plaintiff even could not prove that actually any goods were delivered to appellant vide receipt Ex.PW1/A. Appellant had referred to a different transaction worth Rs.65,000/ and claimed that Rs.15,000/ was paid in cash while a cheque of Rs.50,000/ was given. Since the goods were of inferior quality, therefore, same were returned back vide Ex.PW1/X1. I have already observed that this document Ex.PW1/X1 could not be successfully challenged by the plaintiff.
21 In these circumstances, I find that the appellant was successful in projecting a probable defence so as to show absence of liability towards cheque in question, on the basis of contradictions and Sachin Gupta vs. Shiv Kumar Bansal RCA No. 27/17 Page no. 11 out of 11 inconsistencies arising out of plaintiff's evidence. 22 Therefore, in view of the above discussion, I am of the opinion that plaintiff has not able to prove its case regarding the recovery of the amount of Rs. 2,05,312/ alongwith future and pendentelite interest as the delivery of goods to the appellant could not be proved. Accordingly, appeal is allowed and the impugned judgement and decree dated are set aside. The suit of the plaintiff/respondent fails with no order to be cost. TCR be sent back alongwith copy of the Digitally signed judgment. by SIDDHARTH SIDDHARTH SHARMA Announced in the open court SHARMA Date: 2018.07.31 on 31st July, 2018. 16:27:57 +0530 (SIDHARTH SHARMA) ADDITIONAL DISTRICT JUDGE (EAST) KARKARDOOMA COURTS : DELHI.
Sachin Gupta vs. Shiv Kumar Bansal
RCA No. 27/17 Page no. 11 out of 11