Delhi High Court
Ashok Kumar vs Subhesh Kumar on 18 December, 2018
Equivalent citations: AIRONLINE 2018 DEL 2764
Author: Valmiki J. Mehta
Bench: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 1020/2018
% 18th December, 2018
ASHOK KUMAR ..... Appellant
Through: Mr. Shyamal Kumar, Advocate
(M. No.9899885638).
versus
SUBHESH KUMAR ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No. 53221/2018(exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
C.M. No. 53220/2018 (for condonation of delay)
2. For the reasons stated in the application, delay of 160 days in re-filing the appeal is condoned subject to just exceptions.
C.M. stands disposed of.
RFA No. 1020/2018 Page 1 of 14RFA No. 1020/2018 and C.M. Nos. 53219/2018 (stay) & 53218/2018 (under Order XLI Rule 27 CPC)
3. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the Judgment of the trial court dated 21.05.2018 by which the trial court has decreed the suit filed by the respondent/plaintiff against the appellant/defendant for recovery of Rs. 10,63,000/-, being the total amount of loans granted by the respondent/plaintiff to the appellant/defendant.
4. As it will be demonstrated in terms of the discussion as given later on in this judgment, it is important to point out that the appellant/defendant who is working in the Delhi Police as a constable is a grossly dishonest person, and this has been so observed by the trial court in the impugned judgment, and the facts will further show that a person such as the appellant/defendant, working in a noble profession being the police department, has a scheming mind to ensure that every sort of false defence is set up so that the dues which are payable by the appellant/defendant are not paid back to the respondent/plaintiff.
RFA No. 1020/2018 Page 2 of 145. The facts of the case are that the respondent/plaintiff filed the subject suit pleading that from December, 2009 to March, 2011, various loans were advanced by him to the appellant/defendant. The appellant/defendant eventually issued his cheque no. 688142 for Rs.
10,63,000/- dated 29.08.2011 for repayment of the loan, and this cheque was dishonoured with remarks 'Stop Payment' vide cheque return memo dated 24.10.2011. Respondent/plaintiff is pleaded to have sent a Legal Notice dated 23.11.2011, to which it is pleaded that a false reply was given by the appellant/defendant. Thereafter, the subject suit was filed.
6. The appellant/defendant contested the suit and pleaded that the cheque which was presented by the respondent/plaintiff and which was thus dishonoured, was in fact a signed cheque lost from the cheque book of the appellant/defendant which was lying in the bag of the wife of the appellant/defendant on 28.06.2011, and this bag was lost. It was pleaded by the appellant/defendant that it is this cheque which has been misused by the respondent/plaintiff for filing the present suit. The appellant/defendant denied ever knowing the respondent/plaintiff or that a loan was taken by the RFA No. 1020/2018 Page 3 of 14 appellant/defendant from the respondent/plaintiff. It is pleaded that even the son of the appellant/defendant is in the police force and therefore, there is no need for the appellant/defendant to take any loan from the respondent/plaintiff. The suit was therefore prayed to be dismissed.
6. After pleadings were complete, the trial court framed the following issues:-
"(i) Whether the plaintiff is entitled for recovery of suit amount, as prayed for? OPP
(ii) Whether the plaintiff is entitled for the interest @ 18% p.a., as prayed for? OPP
(iii) Whether the plaintiff has not approached the court with clean hands and has suppressed the material facts and for this reason the plaint is liable to be rejected? OPD
(iv) Whether there is no privity of contract between the parties and there is no cause of action arose in favour of the plaintiff to file the present suit and is liable to be dismissed on this ground? OPD
(v) Whether the plaintiff has not filed the appropriate court fees and suit is liable to be rejected? OPD
(vi). Relief."
7. The trial court has decreed the suit by giving various reasons as immediately given hereinafter, and I am in complete agreement with them. The dishonoured Cheque dated 29.08.2011 has been proved as Ex.PW1/5. The cheque returning memo for the RFA No. 1020/2018 Page 4 of 14 subject cheque has been proved as Ex.PW1/6. There is no dispute, and it is not even disputed by the appellant/defendant, that the cheque bears the signatures of the appellant/defendant. The trial court rightly notes that whereas the case of the appellant/defendant in the written statement was that the bag containing the entire cheque book of the appellant/defendant was lost by his wife on 28.06.2011, however, when we refer to the FIR filed by the wife with the police on 28.06.2011/Ex. Mark DW2/A, this complaint only shows that two blank cheques were signed (out of the entire cheque book) which were said to be lost from the bag/purse belonging to the wife of the appellant/defendant. Even the police complaint filed by the appellant/defendant later on is dated 21.12.2011/Ex.DW1/B, and the same was filed after the appellant/defendant received a Notice dated 25.11.2011 (Ex.PW1/7) under Section 138 of the Negotiable Instruments Act, 1881, and even in this complaint it is stated that the cheque book was lost. In the complaint filed by the appellant/defendant to the bank to stop the payment of the cheque, it is written that the entire cheque book was lost in the bag of the wife of the appellant/defendant and out of the entire cheque book only one RFA No. 1020/2018 Page 5 of 14 cheque was signed. Therefore, there is clearly difference in the stands which are found in the complaint to the bank, and to the police station made by the appellant/defendant and his wife, and in the pleadings of the appellant/defendant in his written statement. In fact this court would also like to again note that in the FIR proved as Ex. Mark DW2/A, the wife of the appellant/defendant only reported that the two blank cheques of Axis Bank were lost as they had fallen down, and not the entire cheque book, along with the bag of the wife of the appellant/defendant and that there are thus clear contradictions in the complaints of the appellant/defendant and his wife made to the police and the bank. The trial court has further noted that when the officer from the bank was summoned as PW-2 by the respondent/plaintiff, and as per his deposition it was seen that the stop payment instructions issued by the appellant/defendant were not only with respect to one cheque or one cheque book containing the subject dishonoured cheque, but that the appellant/defendant had in fact issued instructions for stopping of payment of various cheques which were issued by the appellant/defendant contained in as many as three cheque books and total of sixty cheques. The three cheque books which were pleaded by RFA No. 1020/2018 Page 6 of 14 the appellant/defendant for stopping payment (and these three cheque books contained a total of 60 cheques) were having cheques as serial nos. 386181-200, 604381-400 and 688141-160. This document has been proved as Ex.DW1/A and which is an internal letter written by the Axis Bank to its another Branch and the computer-generated letter proved by PW-2 was EX. PW-2/A. The trial court has also further rightly noted that though the case of the appellant/defendant was that he never had any relations with the respondent/plaintiff i.e. he never knew the respondent/plaintiff and the respondent/plaintiff as a complete stranger had misused the subject cheque, however, in the photograph Mark X2 of a family function, the wife of the appellant/defendant was found at point A and this photograph also shows the presence of the appellant/defendant. In fact it is conceded on behalf of the wife of the appellant/defendant that she knew the respondent/plaintiff through her Bhabhi (sister-in-law). DW-2/wife of the appellant/defendant admitted she had attended the marriage of respondent/plaintiff and also of his sister as shown in the photograph filed. The trial court has also further noted that the appellant/defendant was trying to be over smart because when a question was put that RFA No. 1020/2018 Page 7 of 14 whether he had received any phone call from his wife on 28 th and 29th June, 2011, the appellant/defendant only answered that his wife verbally told him about the loss of the bag and the trial court has further noted that whereas the appellant/defendant remembers the phone number of his son but the appellant/defendant does not remember the phone number of his own wife and that too when the appellant/defendant is employed as a constable in the police. The trial court has also rightly noted that the case of appellant/defendant as per his deposition is that he would not require a loan for medical purposes as the appellant/defendant was covered under the CGHS Scheme, but it was not even the case of the respondent/plaintiff that the appellant/defendant had taken the loan for some medical purposes and also such a case was not made out by the appellant/defendant as per his written statement. The relevant observations made by the trial court against the appellant/defendant are while dealing with issue nos.
1,3 and 4 and the relevant portion of the impugned judgment in this regard reads as under:-
"xxx xxx xxx The plaintiff has examined himself as PW-1 and has filed his evidence by way of affidavit which is Ex. PW-1/A. Plaintiff has also examined PW-2 Shri Harsh Sharma from Axis Bank, Khan Market, Delhi. Defendant has RFA No. 1020/2018 Page 8 of 14 examined himself as DW-1 and Smt. Rekha as DW-2. DW-2 is wife of DW-1. No other witness has been examined in this case. Parties have also relied upon some documents in support of their contentions. The certified copy of the cheque dated 29.08.2011 bearing no. 688142 in the sum of Rs. 10,63,000/- is on record which is Ex. PW-1/5. Said cheque is in the name of plaintiff and bears the signatures of Ashok Kumar. The certified copy of the cheque returning memo of the bank pertaining to the said cheque is Ex. PW-1/6 and it is dated 24.10.2011. Reason mentioned is 'payment stopped by drawer'. It is relevant to note that in the written statement, in para 3 of preliminary objections it is mentioned that any how plaintiff got the cheque book and misused its one cheque leaf by filling up the name of plaintiff and amount of Rs. 10,63,000/-. It is most important to note that it is not alleged by the defendant that the plaintiff has forged the signatures of the defendant on the cheque. It means that the said cheque in question bears the signatures of defendant. In WS it is mentioned that cheque book was lost on 28.06.2013 by wife of defendant and complaint was lodged on same day in PS Jahangir Puri, Delhi. It is relevant to note that the cheque in question is dated 29.08.2011 and the cheque returning memo is dated 24.10.2011. It means that the cheque book containing the cheque in question was lost after about two years from the date of dishonour of the cheque. Bank returning memo is dated 24.10.2011 and the alleged loss of cheque book is 28.06.2013. It is beyond imagination. Even if we assume that blank cheque was later on filled up by the plaintiff by putting the current date after the loss of cheque by the defendant, then also it is not possible that the said cheque was presented and dishonoured about two years prior to its loss. Further, in the chief examination of PW-2 Shri Harsh Sharma it is mentioned that he is officer in Axis Bank, Khan Market branch. PW-2 deposed that he has brought the computer generated letter Ex. PW-2/A of the stop payment advise for account no. 120010100221337 dated 29.06.2011 by which the defendant Ashok Kumar stopped cheque no. 688141 to 688160 without giving any reason. He also deposed that he has also brought the statement of account of defendant Ex. PW-2/B dated 28.06.2011 to 01.06.2012 which shows that the defendant also stopped the other cheque books without giving any reason.
The defendant examined himself as DW-1 and stated in his affidavit Ex. DW-1/1 that he is a CGHS beneficiary and entitled for free medical treatment as per Government policy and hence for that purpose he do not need to avail any loan from plaintiff or anyone else. It is relevant to note that in the entire plaint it is not mentioned that defendant took the loan for his medical treatment, from the plaintiff. In WS also it is not so mentioned regarding the medical treatment. In cross-examination DW-1 admitted that the cheque no. 688142 belongs to him and is signed by him. He also RFA No. 1020/2018 Page 9 of 14 admitted that he has not mentioned in WS and in his affidavit Ex.DW-1/1 that contents of cheque, date, amount and name of drawee is not filled up by him. In further cross-examination DW-1 stated that he is in Delhi Police since 1986 and resides in Government Police Quarters which falls within the jurisdiction of PS Jahangir Puri, Delhi for last about 6 to 7 years. He stated that he maintains only one bank account with Axis Bank, Khan Market Branch. He stated that he do not know whether his wife is having her own bank account or not. It is strange to note that the defendant who is employed in Delhi Police is not aware whether his wife is having her own bank account or not. He stated that he is having cordial relations with his wife. He stated that he do not remember as to how many cheques were issued by him to different persons between January, 2011 to January, 2012. He stated that he was in Delhi on 28th and 29th June, 2011. He stated that his son Alok is in Delhi Police since 2006 and posted at Mukherjee Nagar. He further deposed that he do not know the plaintiff Subhesh. He further stated in cross-examination that Sanjay, Ranjay and Raju are his brother-in-laws. He stated that Sanjay was residing on ground floor of the plaintiff's premises. He denied the suggestion that plaintiff gave Rs. 10,63,000/- between December, 2009 to March, 2011 to him in parts or that he promised to return the same within two or three months. He also stated in cross-examination that his wife carries mobile phone and he do not remember whether he received any phone call from his wife on 28 and 29 June, 2011 on his mobile phone. He stated that his wife verbally told him regarding the loss of bag, however, he do not know whether she had lodged any complaint or any report in police station. He admitted that he has lodged a complaint Mark DW-1/B in police station and the same is on record. He stated that the receiving of complaint Mark DW-1/B is of 21.12.2011 which is reflected at Point A. I have perused the said document and the said date is mentioned on it. It is a photocopy. The defendant has not examined any police official to prove the said document as per law. It is addressed to SHO, PS Jahangir Puri, Delhi. It is in Hindi and hand written. DW-1 further deposed in cross-examination that he cannot tell about the date of 10.12.2013 which is reflected at Point B on the said document. He denied the suggestion that document Mark DW-1/B is forged and manipulated. He further deposed that after complaint Mark DW-1/B he filed one complaint case against the plaintiff regarding cheating but the same was rejected by the Court due to some reason and he do not remember when it was filed and when it was rejected and he do not have any record of such complaint case. He further deposed that he had purchased one laptop, payment of which has been made through cheque and he do not remember when it was purchased by him. Defendant was also shown some photographs on record during cross-examination and he was asked whether he has any family relation with plaintiff as reflected in the RFA No. 1020/2018 Page 10 of 14 photographs which shows his family at Point A. Defendant answered that he do not have any family relation with the plaintiff or his family and volunteered that his wife or children may be having relations. Another question was put to defendant i.e. whether in the photograph Mark X-2 he is also standing in the family function of the plaintiff at Point A. Defendant answered that "I do not know from where this photograph has been procured". He deposed that in police complaint Mark DW-1/B he has mentioned that his signed blank cheque was misplaced. Witness was confronted with the said complaint and then the witness admitted that it is not so mentioned in the complaint Mark DW-1/B. Witness stated that he do not remember his mobile number and that of his wife. He stated that his son's mobile number is 9953442656. It is very strange to note that defendant is not aware of his own mobile number and that too when he is employed in Delhi Police. He denied the suggestion that he has raised the false defence of loss of cheque in connivance with his wife.
11. DW-2 Smt. Rekha filed her evidence by affidavit Ex. DW-2/1 wherein it is stated by her in para 2 that on 28.06.2011 while on the way to Jahangir Puri, she lost her Nokia mobile, one diary and two blank signed cheques and some documents kept in a plastic from her handbag. She stated that on 29.06.2011 she visited Axis Bank, Khan Market and requested for stop payment. It is strange to note that DW-1 who is husband of DW-2 has stated in his affidavit that cheque no. 688142 is a part of cheque book which was lost by his wife on 28.06.2011. He has not stated that two cheques were lost by his wife. In cross-examination DW-2 Smt. Rekha stated that she has one bank account in Bank of Baroda, Jahangir Puri branch. She stated that her Bhabhi and plaintiff were neighbours and hence she knows the plaintiff as they used to meet the plaintiff as and when they visited the house of her Bhabhi. She stated that on 28.06.2011 she left her house at about 5:30 PM and she was on foot and going to repair the laptop from Sunny Finance, Adarsh Nagar, Delhi. She again stated that she was going to pay the installment of laptop at Sunny Finance and she did not deposit the said installment. In the written statement, the alleged facts regarding Sunny Finance are not mentioned. She further stated in cross-examination that she had mentioned the cheque number of one lost cheque in her NCR on 28.06.2011, however, she has not mentioned the cheque number of another cheque which was lost on the said date. She admitted that she was present in the marriage of plaintiff. This statement falsifies the averment of defendant that the defendant is not having any relation with the plaintiff. DW-2 also stated that in photograph no. 5, she is also present alongwith her husband in the Rasm performed in the marriage of the sister of plaintiff. The witness was also shown the certified copies of the one complaint case no. CC 609/1/13 which was under Section 138 N.I. Act, RFA No. 1020/2018 Page 11 of 14 titled as Subhesh Kumar Vs. Ashok Kumar. Witness admitted the copy of chief examination and cross-examination dated 29.08.2014 and 25.11.2014 which is Ex. DW-2/P1. Said chief examination and cross-examination is of Ms. Rekha Devi W/o Shri Ashok Kumar recorded in said complaint case under Section 138 N.I. Act. In said cross-examination, Rekha Devi stated that her Bhabhi Indu Devi was a tenant under the complainant. Complainant is Subhesh Kumar. DW-2 also stated in her cross-examination that she lodged the NCR at the instance of her husband after discussing the same on his mobile phone. From the detailed evidence as discussed above and also in the light of entire facts and circumstances of the case it is clear that the defendant has based his defence on falsehood. He was having the relations with plaintiff which is proved from record. From the preponderance of probabilities it is clear that the defendant issued the cheque in question to the plaintiff for discharge of his liability. The suit is within limitation. The defendant had tried to manipulate the loss of cheque in question by lodging police complaint. Said complaint is not proved on record. No police official from concerned police station was examined to prove it. Defendant wants to escape the liability. Defendant is also working in Delhi police as per the material on record. Defendant has failed to discharge his onus on Issue no.(iii) and
(iv) under consideration. Defendant himself has not approached the court with clean hands. There is cause of action between plaintiff and defendant. In view of the above detailed facts and circumstances and reasons given and observations made, the plaintiff is entitled for recovery of suit amount of Rs.10,63,000/- (Rupees Ten Lacs and Sixty Three Thousand Only) as prayed for. Accordingly, the Issue no. (i) is decided in favour of the plaintiff and the Issue no. (iii) and (iv) are decided against the defendant. Said three Issues stands disposed off accordingly.
(Underlining Added)
8. In my opinion, therefore the trial court was completely justified in arriving at a conclusion that the defence of the appellant/defendant is based on complete falsehood and therefore, the suit had to be decreed in favour of the respondents/plaintiff. In fact, in my opinion, the appellant/defendant is lucky that the trial court has RFA No. 1020/2018 Page 12 of 14 only awarded interest at 8% per annum whereas if a cheque is dishonoured, then the drawee/payee, being the respondent/plaintiff in this case, as per Section 80 of the Negotiable Instruments Act is entitled to interest at 18% per annum.
9. In view of the aforesaid discussion, the appeal is dismissed with costs of Rs. 50,000/-, and these costs shall be deposited by the appellant/defendant with the website www.bharatkeveer.gov.in within a period of four weeks from today. Receipt of deposit of costs will be filed within one week thereafter. In case, the receipt of deposit is not filed in this Court within five weeks, the Registry will list the matter in the Court for taking appropriate action against the appellant/defendant.
10. In the facts of the present case, this court also deems it fit that a copy of the judgment be sent to the Commissioner of Police, Delhi and the Commissioner of Police will take note that a person such as the appellant/defendant exists in the police force, and who is using his intelligence not for the benefit of his official duty/purposes as a police constable, but to falsely dispute and deny repayment of just dues.
RFA No. 1020/2018 Page 13 of 1411. The appeal is accordingly dismissed and disposed of with the aforesaid observations.
DECEMBER 18, 2018 VALMIKI J. MEHTA, J
Ne
RFA No. 1020/2018 Page 14 of 14