Delhi District Court
Mr. Rakesh Kumar Arora vs Mr. Anil Sabharwal on 9 February, 2023
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS No. 59233 of 2016
Date of Institution : 02.07.2016
Final arguments heard : 10.01.2022
Date of Judgment : 09.02.2023
Mr. Rakesh Kumar Arora
S/o Sh. V.P. Arora,
R/o 18-B, Savitri Nagar,
New Delhi-110017 .....Plaintiff
VS.
Mr. Anil Sabharwal
S/o Late Sh. Gurbachan Singh
R/o B-616, 3rd Floor
Vasant Kunj Enclave
New Delhi-110070
Also at
Chilli n Spice
111/9, JNU Road
Kishan Garh
Vasant Kunj, New Delhi .....Defendant
JUDGMENT
1. The plaintiff has filed the present suit against the defendant for recovery of ₹ 19,00,000/- along with pendente lite and future interest.
CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 1 of 34
2. The case of the plaintiff in the plaint is as follows. It is stated in the plaint that the plaintiff came in contact with the defendant in the year 2011 when the plaintiff was looking to purchase a flat and subsequently purchased property bearing no. Second Floor, 90/5-A&B, Malviya Nagar, New Delhi 110017. Subsequently, on 10/10/2014, the father and mother of the plaintiff purchased the entire third floor with roof rights of property no. 90/5-A&B, Malviya Nagar, New Delhi 110017, from the defendant for a total consideration of ₹ 86,00,000/-. After a few months of the completion of the said transaction, the defendant in the month of December 2014 approached the plaintiff and requested for a friendly loan of ₹ 45,00,000/- for a short period of time stating that he wished to purchase property. The defendant promised to return the said money within a period of two months. Trusting the defendant and keeping in view the old friendship with the defendant and in order to help the family of the defendant, the plaintiff agreed to arrange and give amount of ₹ 45,00,000/- to the plaintiff for a short period of time. Accordingly, the plaintiff on 31/12/2014 gave ₹ 19,00,000/- in cash and two cheques of ₹ 10,50,000/- and ₹ 15,50,000/- to the defendant on 31/12/2014. At the time of receiving the cash amount of ₹ 19,00,000/-, the defendant also signed an agreement/receipt undertaking to return the amount by 28/02/2015. At the time of taking the loan, the defendant was residing with his brother at Ground Floor, 90/5-A&B, Malviya Nagar, New Delhi 110017. After handing over the CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 2 of 34 cash amount of ₹ 19,00,000/- and the cheques, the plaintiff became aware that the defendant intended to cheat the plaintiff and did not intend to refund the loan amount, upon which the plaintiff stopped the payment of one of the above-mentioned two cheques and took the original cheques back from the defendant and also sought the refund of the cash amount of ₹ 19,00,000/- which the defendant failed to return. The plaintiff made several requests to the defendant for the refund of the loan amount of ₹ 19,00,000/- as promised by the defendant, however the defendant on one pretext or the other avoided the plaintiff and refused to pay back the amount of ₹ 19,00,000/- taken as loan from the plaintiff. Rather, the defendant through his wife tried to implicate the plaintiff in false cases to pressurise the plaintiff to drop his claim. On the failure of the defendant to return the loan amount, the plaintiff served the defendant with a legal notice dated 27/04/2016 which was duly received by the defendant, however, the defendant failed to repay the amount. On this basis, the plaintiff has prayed for decree of ₹ 19,00,000/- along with pendente lite and future interest.
3. The defendant has filed the written statement in his defence. It is the case of the defendant in the written statement that there was never any loan transaction between the parties and that the plaintiff had forged and fabricated the alleged receipt over the signatures of the defendant obtained by the plaintiff on blank papers in good faith. The plaintiff had taken undue advantage of the CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 3 of 34 signatures of the defendant obtained by the plaintiff on blank papers at the time of signing the papers for sale with regard to third floor of the property bearing no. 90/5-A&B, Malviya Nagar, New Delhi 110017. No amount, much less the alleged amount of ₹ 19,00,000/- had ever been received by the defendant from the plaintiff in any manner whatsoever and no cheques as alleged had ever been issued by the plaintiff to the defendant. During the conversation of the defendant with Mr. Ved Prakash Arora, the father of the plaintiff, the latter had categorically admitted that he had filled up the blank papers signed by the defendant in the shape of loan documents and assured that he would not misuse the same. It is stated that the conversation held between the defendant and the father of the plaintiff was recorded by the defendant. It is further stated that the true state of affairs was that initially the defendant had sold and transferred the entire second floor without roof rights of the property bearing no. 90/5-A&B, Malviya Nagar, New Delhi 110017 to Mr. Kamal Sachdeva and the plaintiff herein vide sale deed dated 02/06/2011. Subsequently, the plaintiff again approached the defendant to purchase the entire third floor with roof rights of the said property and after due deliberations, the sale consideration of the third floor was fixed and settled as ₹ 1.29 Crores. However, the plaintiff's father while getting the sale deed executed and registered in his favour and in favour of his wife paid total amount of only ₹ 85,14,000/- as against the total sale consideration of ₹ 1.29 Crores. At the time of execution and registration of the sale deed, the parents of the plaintiff CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 4 of 34 categorically assured the defendant to pay the balance sale consideration of ₹ 43 Lacs within a short period and the defendant in good faith believed the parents of the plaintiff and got the sale deed executed and registered in their favour. However, as and when the defendant demanded the balance amount of ₹ 43 Lacs, the plaintiff as well as his parents threatened the defendant that they would not pay any amount to the defendant and in case the defendant ever tried to raise any demand, they would implicate the defendant in false cases and would misuse the signatures of the defendant obtained on blank papers. It is also alleged that the plaintiff molested the defendant's wife as a result of which a criminal case was also registered against the plaintiff. On this basis, the defendant has prayed for dismissal of the suit.
4. The plaintiff has filed replication to the written statement in which the plaintiff has reiterated the averments made in the plaint and has disputed the averments made in the written statement.
5. Vide order dated 01/06/2017, the following issues were framed in the suit:
"1. Whether the plaintiff is entitled for decree of ₹ 19,00,000/- along with pendente lite interest at the rate of 18% and future interest at the rate of 9% as prayed for? OPP
2. Whether the receipt dated 31/12/2014 filed by the plaintiff is false and fabricated? OPD
3. Relief"CS No. 59233 of 2016
RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 5 of 34
6. In support of his case, the plaintiff has led evidence, both oral as well as documentary. The plaintiff has examined himself as PW-1 and has tendered his affidavit in evidence Ex.PW-1/A in which he has deposed on the lines of the plaint. PW-1 was examined in chief on 12/12/2017 and his cross-examination was deferred to 19/02/2018 at the request of the ld. counsel for the defendant. None appeared on behalf of the defendant on 19/02/2018, and the opportunity to cross-examine PW-1 was closed and PW-1 was discharged.
7. The plaintiff has also examined his father Mr. Ved Prakash Arora as PW-2. He has tendered his affidavit in evidence Ex.PW-2/A. He was subjected to cross examination in part by the defendant on 28/11/2018 and 17/01/2019, and matter was put up for further cross-examination on 12/04/2019. The ld. counsel for defendant was not available on 12/04/2019 and the opportunity to cross- examine PW-2 was closed and PW-2 was discharged.
8. The defendant had filed an application to recall the orders dated 19/02/2018 and 12/04/2019 closing the right of the defendant to cross-examine PW-1 and PW-2, respectively, which was dismissed vide order dated 19/08/2019. The defendant had challenged the order dated 19/08/2019 before the Hon'ble High Court of Delhi in CM(M) No.1712/2019, and vide order dated 02/12/2019, the Hon'ble High Court permitted the defendant to cross- examine PW-1 and PW-2 subject to deposit of Rs. 5 lakhs before this Court to be kept in a fixed deposit. The relevant CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 6 of 34 portion of the order dated 02/12/2019 is extracted hereunder:
"2. The present petition challenges the impugned order dated 19th August, 2019 by which the application of the Defendant/Petitioner (hereinafter, "Defendant") under Order XVIII Rule 17 CPC has been dismissed. Cross-examination of PW-1 has been disallowed and the cross-examination of PW-2 has also been closed. Ld. counsel for the Defendant submits that there was a change of counsel and the fact that PW-1's cross-examination was concluded was not within the knowledge of his client. The cross examination of PW-2 was conducted on two occasions in detail, however, the same was inconclusive.
3. Under these circumstances, an application was moved under Order XVIII Rule 17, seeking permission to recall the orders dated 19thFebruary, 2018 and 12th April, 2019 to enable the cross- examination of Mr. Rakesh Kumar Arora and Mr. Ved Prakash Arora once again.
4. After perusing the Court record, it is clear that there have been a lot of defaults by the Defendant-Mr. Anil Sabharwal. One of the orders, of which recall was sought, is of 19thFebruary,2018 which is almost 22 months old. Further, two detailed cross-examination sessions have also been held insofar as PW-2 is concerned, and when the ld. counsel was not available on the third occasion, the right has been closed.
5. Ld. counsel for the Plaintiff opposes the prayer for reopening the cross-examination. He submits that a sum of Rs. 19 lakhs is to be paid by the Defendant, and in collateral proceedings the wife of the Defendant had in fact admitted the receipt of Rs.19 lakhs. He relies upon the cross- examination in State v. Rakesh Arora FIR No.1281/2016, wherein the wife of the Defendant CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 7 of 34 admits that the amount has been received as part of the sale consideration.
6. Considering the delay that has been caused by the Defendant, in view of the circumstances narrated above, it is directed that subject to the Defendant depositing a sum of Rs.5 lakhs before the Trial Court, which shall be kept in a fixed deposit, the Defendant is permitted to cross-examine PW-1 and PW-2,for which a specific date shall be fixed by the Trial Court. The cross-examination of both these witnesses shall be conducted on the same date. No further opportunity shall be granted for cross- examination.
7. List before the Trial Court on 6thJanuary, 2019, the date already fixed. However, on or before 4thJanuary, 2020 a sum of Rs.2.5 lakhs shall be deposited. Prior to conclusion of the cross- examination of PW-1 and PW2, a second installment of Rs.2.5 lakhs shall be deposited. Further, cross-examination of PW-1 and PW-2shall be read in evidence subject to the deposit of entire amount of Rs.5 lakhs.
8. With these observations the petition and all pending applications are disposed of. Dasti."
9. However, the defendant never deposited amount of Rs. 5 Lacs as per the order dated 02/12/2019 and did not avail of the fresh opportunity to cross-examine the PW-1 and PW-
2. The defendant filed review application being Review Petition No.273/2022 before the Hon'ble High Court for review of the order dated 02/12/2019, which was dismissed vide order dated 01/11/2022. In the result, there has been no cross-examination of PW-1 and PW-2 by the defendant pursuant to the order dated 02/12/2019.
10. In support of his case, the plaintiff has relied upon the CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 8 of 34 following documents:
1) Sale deed dated 02.06.2011 being Ex. PW-1/1 (OSR);
2) Sale deed dated 10.10.2014 being Ex. PW-1/2 (OSR);
3) Certified copy of ITR for the year 2015-16 of plaintiff being Ex. PW-1/3;
4) Cheque no. 435228 (OSR) being Ex. PW-1/4;
5) Cheque no. 411150 (OSR) being Ex. PW-1/5;
6) Receipt/agreement dated 31.12.2014 (OSR) being Ex. PW-1/6;
7) Letter dated 03.01.2015 for stop payment of cheque (OSR) being Ex. PW-1/7;
8) Office copy of legal notice dated 27.04.2016 being Ex. PW-1/9;
9) Postal receipts (colly. in two pages) being Ex. PW-1/10;
10) Copy of FIR no. 1281/16 being Mark-A;
11) Copy of internet generated copy of delivery report being Mark-B;
12) Sale deed dated 14/08/2014 being Ex.PW- 2/1;
13) Passbook of account no.45230100003026 and 4523100005003 being Ex.PW-2/2 (Colly.) (OSR);
14) Passbook of account no. 13920110011348 being Ex.PW-2/5 (OSR);
15) Certified copy of plaint filed by Syndicate bank in suit no.6974/2016 being Ex.PW-2/6;
16) Certified copy of application u/O.7 r.11 CPC filed in the said suit being Ex.PW-2/7;
17) Certified copy of application u/O.7 r.10 CPC filed in the said suit being Ex.PW-2/8;
18) Certified copy of order dated 16/02/2017 passed in the said suit being Ex.PW-2/9;
19) Copy of passbook of account no.5672500100011101 being Mark-A.
11. In support of his case, the defendant has examined himself as DW-1 and has tendered his affidavit in evidence DW-
1/A in which he has deposed along the lines of the written CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 9 of 34 statement. He was subjected to cross examination by the plaintiff.
12. It is pertinent to mention that the defendant had also filed the affidavit in evidence of his wife Smt. Gayatri Sabharwal. However, she was subsequently dropped as a witness and she never entered the witness box to testify and face cross-examination, although she was present in the court when the evidence of the defendant as DW-1 was recorded.
13. The defendant has relied upon the following documents:
1) Copy of translation of transcript of CD voice recording being Mark DW-1/1/;
2) CD containing voice recording being Mark DW-1/2;
3) Copy of agreement to sell being Mark 2/DA;
4) Copy of FIR dated 02/07/2015 being Mark A. The plaintiff has objected to the admissibility and mode and manner of proof of the aforesaid documents, which I shall deal with subsequently in the course of the judgment.
14. The learned counsel for the plaintiff has referred to the relevant pleadings and evidence in the plaintiff's support. The ld. counsel has submitted that from the receipt Ex.PW-1/6, it is clearly proved that the defendant had received amount of ₹ 19,00,000/- from the plaintiff in cash. It is submitted that the defendant has already admitted his signatures on Ex.PW-1/6. It is submitted that the plaintiff has also proved the source of funds for arranging the cash amount of ₹ 19,00,000/-. It is submitted that the plaintiff had along with the Income Tax Return Ex.PW-1/3 for the assessment year 2015-16 also filed CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 10 of 34 balance sheet showing amount of ₹ 19,00,000/- as loan to the defendant. It is submitted that the plaintiff has as PW-1 already deposed along the lines of the plaint and the testimony of the plaintiff was never challenged by the defendant in cross-examination despite opportunity given by the Hon'ble High Court. It is further submitted that the plaintiff's father PW-2 had also deposed regarding the loan and the execution of the receipt Ex.PW-1/6 to which he was a witness. It is further submitted that the wife of the defendant had in her cross-examination before the Ld. Mahila Court (Mark DW-1/7 and Mark DW-1/8) admitted that her husband i.e. the defendant had received amount of ₹ 19 lacs in cash from the plaintiff. It is submitted that although, the defendant had filed the affidavit in evidence of his wife, however, she was dropped as a witness and never called to face cross-examination, although she was appearing on various dates along with the defendant and was also present at the time of recording of evidence of the defendant as DW-1. It is submitted that an adverse inference would be drawn against the defendant in view of this. It is further submitted that the defendant has failed to discharge the onus to prove his defence that the Ex.PW-1/6 was forged and fabricated. It is submitted that the electronic record which is being relied upon by the defendant, being CD containing voice recording being Mark DW-1/2 and copy of translation of transcript of CD voice recording being Mark DW-1/1, is not accompanied by any certificate under section 65-B of the Indian Evidence Act, and as such, is inadmissible in evidence. It CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 11 of 34 is submitted that, even otherwise, there was nothing in the transcript Mark DW-1/1 which would show any admission by the plaintiff's father. It is submitted that on the basis of the evidence on record, the plaintiff has successfully proved his case and is entitled to decree.
15. The learned counsel for the defendant has referred to the relevant pleadings and evidence in the defendant's support. It is submitted that the plaintiff has filed the suit with an ulterior motive by taking advantage of the signatures of the defendant taken on blank papers. It is submitted that from the evidence on record, the defendant has proved that the receipt being Ex.PW-1/6 was a forged and fabricated document. It is submitted that during the conversation with the plaintiff's father, it was admitted by the latter that he had filled up the blank papers signed by the defendant in the shape of a loan document and assured that he would not misuse the same. In this regard, the ld. counsel for the defendant has referred to copy of translation of transcript of CD voice recording being Mark DW-1/1 and CD containing voice recording being Mark DW-1/2. It is submitted that the parents of the plaintiff had entered into sale transaction with the defendant for the third floor for sale consideration of ₹ 1.29 crores but had paid sale deed amount of ₹ 86 lacs only and had not paid the remaining amount of ₹ 43 lacs. It is submitted that the present suit has been filed only to usurp the remaining amount of ₹ 43 lacs. It is further submitted that receipt Ex.PW-1/6 contained signatures of two witnesses namely the CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 12 of 34 plaintiff's father Mr. Ved Prakash Arora and Mr. Manish Kumar s/o. Ram Kishan. It is submitted that the evidence of the plaintiff's father (PW-2) cannot be considered as he is an interested witness. It is submitted that the plaintiff has not called the second witness Mr. Manish Kumar to testify as the Ex.PW-1/6 was a forged and fabricated document. It is submitted that an adverse inference would be drawn that the Ex.PW-1/6 was a forged and fabricated document as the plaintiff had failed to summon Mr. Manish Kumar to testify. It is submitted that the suit deserves dismissal.
16. I have considered the submissions of the learned counsel for the parties and I have also perused the record including the pleadings and the evidence.
17. My issue-wise findings are as follows:
Issue No. 1. Whether the plaintiff is entitled for the decree of ₹ 19 lakh along with pendant delighting interest at the rate of 18% and future interest at the rate of 9% as prayed for? OPP Issue No. 2. Whether the receipt dated 31/12/2014 filed by the plaintiff is false and fabricated? OPD
18. Both these issues are taken up together for discussion.
19. The plaintiff has examined himself as PW-1 and has tendered his affidavit in evidence Ex.PW-1/A in which he has reiterated his case as set out in the plaint. The plaintiff has deposed that he had given friendly loan to the defendant on 31/12/2014 in the form of cash of Rs. 19 lacs and two cheques both dated 03/01/2015 for Rs. 15,50,000/- and Rs. 10,50,000/-, respectively. He has further deposed CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 13 of 34 that he had given the cash of Rs. 19 lacs from the cash available with him and the cash received from his parents. He has also deposed that at the time of receiving the cash amount of Rs. 19 lacs, the defendant had signed the agreement/receipt undertaking Ex.PW-1/6 to return the amount by 28/02/2015. It is further deposed that subsequently, when the plaintiff learnt that the defendant did not intend to return the amount, he stopped the payment of one cheque and took the two original cheques back from the defendant and sought refund of the cash of ₹ 19 lacs which the defendant refused. As already mentioned, the defendant failed to cross-examine PW-1 despite opportunity and the opportunity to cross-examine was closed. Subsequently, the Hon'ble High Court permitted the defendant to cross-examine PW-1 subject to the condition of deposit of ₹ 5 lacs. However, the defendant did not avail of this fresh opportunity to cross- examine PW-1. As a result, the testimony of PW-1 was never challenged by the defendant in cross-examination.
20. In order to prove the source of funds for arranging the loan amount of ₹ 19,00,000/-, the plaintiff has relied upon Ex.PW-2/1 being sale deed dated 14/08/2014 in respect of a property at Mubarakpur, Kotla (now known as South Extension, Part-I) which was sold by the parents of the plaintiff as vendors. Ex.PW-2/1 shows that part sale consideration of ₹ 59,52,000/- was received in cash. The plaintiff has also relied upon the bank statements and passbooks of his parents being Ex.PW-2/2, Ex.PW-2/4 and CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 14 of 34 Mark-A to show that cash amounts were also withdrawn from the accounts to be given to the plaintiff. The plaintiff has also relied upon his Income Tax Return Ex.PW-1/3 for the assessment year 2015-16 along with balance sheet showing that amount of ₹ 19,00,000/- was given as loan to the defendant.
21. PW-2 who is the father of the plaintiff has deposed that he had assisted the plaintiff by giving cash amounts to be given to the defendant towards the loan. PW-2 has deposed that the cash was generated from the sale proceeds of sale of a property at Mubarakpur, Kotla which was sold vide sale deed dated 14/08/2014 Ex.PW-2/1. PW-2 was a witness to the receipt/agreement dated 31/12/2014 Ex.PW- 1/6 and he has deposed that the defendant had executed the Ex.PW-1/6 at the time of the loan transaction. PW-2 has denied the suggestion that the Ex.PW-1/6 was got fraudulently executed by getting signatures on blank papers. PW-2 was cross-examined on 28/11/2018 and 17/01/2019 and his testimony remains unshaken in the cross-examination. As already mentioned, the defendant failed to further cross-examine PW-2 despite opportunity and the opportunity to cross-examine was closed. Subsequently, the Hon'ble High Court permitted the defendant to further cross-examine PW-2 subject to the condition of deposit of Rs. 5 lacs. However, the defendant did not avail of this fresh opportunity to further cross- examine PW-2. The testimony of PW-2 remains unshaken in cross-examination.
CS No. 59233 of 2016RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 15 of 34
22. The defendant (DW-1) was confronted with the certified copy of the record of cross-examination of his wife Mrs. Gayatri Sabharwal in CR Case 2031126/2016 entitled State v. Rakesh Arora (FIR No. 1281/2015- Malviya Nagar), being Mark DW-1/7 and Mark DW-1/8. This was a criminal case in which the plaintiff herein was the accused and the defendant's wife was the complainant. In her cross-examination in the said case, the defendant's wife had deposed as under:
"It is wrong to suggest that my husband ever approached the accused for friendly loan of Rs.45 lakhs for a period of two months which was granted. It is correct that the accused had issued two cheques, one of Rs.10,50,000/- and other of Rs.15,50,000/-on 31.12.2014 (vol. on 05.01.2015 accused approached me and asked me to return the above-said cheques with an assurance that he will get RD done in my favour in the bank. He took the cheques back but never got the money deposited in my account. He be-fooled me by saying that within few house the amount will be transferred in my RD account but it was never done). It is wrong to suggest that on 31.12.2014 alongwith the above said two cheques, a sum of Rs.19 lakhs was also given as loan in cash to my husband. (Vol. The said payment of Rs.19 lakhs was received by my husband as part payment of the sale consideration and this was part of cash component). I do not remember whether I was present with my husband or not when the said two cheques were handed over to him and cash was received by him. I do not know if the accused had filed any case against my husband for recovery of Rs.19 lakhs or not."
(Emphasis supplied by me)
23. Thus, it was admitted by the defendant's wife that the plaintiff had issued two cheques, one for Rs. 10,50,000/-
CS No. 59233 of 2016RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 16 of 34 and another for Rs. 15,50,000/- on 31/12/2014, and that payment of Rs. 19 lacs was also given as cash. Although, it is stated by the defendant's wife that the payment was received as part payment of sale consideration in respect of the sale of third floor of the Malviya Nagar property, however the factum of payment of Rs. 19 lacs in cash is admitted. In the present case, the defendant had filed the affidavits in evidence of both himself as DW-1 as well as of his wife. The defendant's wife was present in court on the date when the evidence of the defendant as DW-1 was recorded. However, the wife of the defendant refused to enter the witness box, despite being present in Court and was dropped as a witness the same day. I would draw an adverse inference against the defendant in such circumstances that the defendant's wife was deliberately not brought into the witness box to be confronted with the record of her cross-examination being Mark DW-1/7 and Mark DW-1/8. I would draw the adverse inference that the cross-examination of the defendant's wife would have resulted in adverse results for the defendant and as such she was avoided to be brought to the witness box for cross- examination.
24. In the receipt Ex.PW-1/6 it is stated that the defendant had received amount of ₹ 19,00,000/- from the plaintiff in cash as loan apart from two cheques. The defendant has admitted his signature on Ex.PW-1/6. This signature of the defendant runs across two revenue stamps of Rs. 1/- each. PW-2 is a witness to Ex.PW-1/6 and he has deposed CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 17 of 34 regarding the execution of Ex.PW-1/6 by the defendant. The contents of Ex.PW-1/6 are extracted hereunder:
"RECEIPT I, Anil Sabharwal, S/o Late Sh. Gurbachan singh, R/o 90/5, A&B, Malviya Nagar, New Delhi- 110017 has received an amount of Rs.45,00,000 (Rupees Fourty Five Lakh only) in the following manner.
1. 19,00,000/- (Rupees Fifteen Lakh only) by cash.
2. 10,50,000/- (Rupees Nine Lakh and fifty Thousand only) by cheque no. 411150 dated 04/01/2015 drawn on UCO Bank, Sheikh Sarai-I, New Delhi.
3. 15,50,000/- (Rupees Fifteen Lakh and Fifty Thousxand Only) By Cheque No. 435228 dated 03/01/2015 drawn on Andhra Bank, Malviya Nagar, New Delhi.
This loan amount will be refunded to Mr. Rakesh Kumar Arora S/o Sh. V.P. Arora, R/o 180-B, Savitri Nagar, N.D. 17, on or before 28th Feb 2015."
25. I would hold that from the evidence on record as discussed above, the plaintiff has been able to discharge the primary onus to prove his case. The onus shifted to the defendant to prove his defence that the signatures of the defendant had been taken on blank papers and the Ex.PW-1/6 was prepared as a forged and fabricated document and that there was actually no loan transaction.
26. The defendant has sought to prove his defence through an audio recording of a conversation alleged to have taken place between the plaintiff's father and the defendant over telephone. The defendant has filed a CD Mark DW-1/2 and a transcript Mark DW-1/1. The plaintiff has denied both CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 18 of 34 these documents and has also challenged the admissibility of these documents on the basis that these documents do not comply with the requirements of Section 65-B of the Indian Evidence Act.
27. It would be appropriate to refer to the relevant case laws on the point of secondary evidence in respect of electronic records under Section 65-B Evidence Act. It has been held in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, by the Hon'ble Supreme Court, as under:
"14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;CS No. 59233 of 2016
RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 19 of 34
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 20 of 34 made to Section 45-A--opinion of Examiner of Electronic Evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India.
19. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.
20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
21. In State (NCT of Delhi) v. Navjot Sandhu [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] a two-Judge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerised records of the calls pertaining to the cellphones, it was held at para 150 as follows : (SCC p. 714) "150. According to Section 63, "secondary evidence"
means and includes, among other things, 'copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies'. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed [Ed. : Reference is CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 21 of 34 to State v. Mohd. Afzal, (2003) 71 DRJ 178] at para
276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service- providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub- section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65."
It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section 65-B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65-B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65, of an electronic record.
22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] , does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 22 of 34 shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
23. The appellant admittedly has not produced any certificate in terms of Section 65-B in respect of the CDs, Exts. P-4, P-8, P-9, P-10, P-12, P-13, P-15, P-20 and P-22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.
24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence [Ed. : The words "under Section 62 of the Evidence Act", directed to be deleted in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1] [under Section 62 of the Evidence Act], the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act." (Emphasis supplied by me)
28. It has been held in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, by the Hon'ble Supreme Court, as under:
"32. Coming back to Section 65-B of the Evidence Act, sub- section (1) needs to be analysed. The sub-section begins with a non obstante clause, and then goes on to mention information contained in an electronic record produced by a computer, which is, by a deeming fiction, then made a "document". This deeming fiction only takes effect if the CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 23 of 34 further conditions mentioned in the section are satisfied in relation to both the information and the computer in question; and if such conditions are met, the "document"
shall then be admissible in any proceedings. The words "... without further proof or production of the original ..." make it clear that once the deeming fiction is given effect by the fulfilment of the conditions mentioned in the section, the "deemed document" now becomes admissible in evidence without further proof or production of the original as evidence of any contents of the original, or of any fact stated therein of which direct evidence would be admissible.
33. The non obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65-B, which is a special provision in this behalf -- Sections 62 to 65 being irrelevant for this purpose. However, Section 65-B(1) clearly differentiates between the "original" document -- which would be the original "electronic record" contained in the "computer" in which the original information is first stored -- and the computer output containing such information, which then may be treated as evidence of the contents of the "original" document. All this necessarily shows that Section 65-B differentiates between the original information contained in the "computer" itself and copies made therefrom -- the former being primary evidence, and the latter being secondary evidence.
34. Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where "the computer", as defined, happens to be a part of a "computer system" or "computer network" (as defined in the Information Technology Act, 2000) and it becomes impossible to physically bring such network or system to the court, then the only means of proving information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). This being the case, it is necessary to clarify what is contained in the last sentence in para 24 of Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] which reads as "... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act ...". This may more appropriately be read without the words "under Section 62 CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 24 of 34 of the Evidence Act,...". With this minor clarification, the law stated in para 24 of Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 :
(2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] does not need to be revisited."
(Emphasis supplied by me)
29. It has been held in Mohd. Arif alias Ashfaq v. State (NCT of Delhi), 2022 SCC OnLine SC 1509, by the Hon'ble Supreme Court, as under:
"22. The last decision on the point is a three Judge bench decision of this Court in Arjun Panditrao Khotkar10 which was rendered on a reference to a larger bench because of the observations in Shafi Mohammad14. The bench concluded in Arjun Panditrao10 as under:--
"73. The reference is thus answered by stating that:
73.1. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, as clarified by us hereinabove, is the law declared by this Court on Section 65-B of the Evidence Act. The judgment in Tomaso Bruno v. State of U.P., (2015) 7 SCC 178, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 and the judgment dated 3-4-2018 reported as Shafhi Mohd. v. State of H.P., (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
73.2. The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). The last sentence in para 24 in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 which reads as "... if an electronic record as such is used as primary evidence under Section 62 of the Evidence CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 25 of 34 Act ..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,...".
With this clarification, the law stated in para 24 of Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 does not need to be revisited.
73.3. The general directions issued in para 64 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67-C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.
73.4. Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67-C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the metadata to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justices' Conference in April 2016."
23. It must now be taken to have been settled that the decision of this Court in Anvar P.V.9 as clarified in Arjun Panditrao10 is the law declared on Section 65B of the Evidence Act."
(Emphasis supplied by me)
30. From the aforesaid survey of the law, it can be deduced that compliance with the provisions of Section 65-B of the Evidence Act is mandatory for the admissibility of secondary evidence of electronic record. In the present case, it is admitted by the defendant as DW-1 during his cross-examination that the recording of conversation between the defendant and the plaintiff's father had taken CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 26 of 34 place over his mobile phone on different dates. Thus, the original record was contained in the defendant's mobile phone as per the defendant's own case. This mobile phone was never produced before the court. The defendant has also stated in his cross-examination that he did not have the mobile phone device now as it was an old device and the same got destroyed as it fell in the water. The audio recording contained in the CD is really a copy of the information stored in the mobile phone. Thus, it was incumbent upon the defendant to comply with the conditions laid down in section 65-B Evidence Act. However, there is no certificate filed under section 65-B. Hence, I would hold that the CD Mark DW-1/2 containing the alleged audio recording would be inadmissible in evidence. Consequently, even the transcript Mark DW-1/1 purporting to be the transcript of translation of audio recording Mark DW-1/2 CD would also not be admissible in evidence.
31. The defendant as DW-1 has stated in his cross-examination that he knows Mr. Mahender Kumar, whose signatures are there as a witness on Ex.PW-1/6. DW-1 states in his cross- examination that DW-1 had signed two blank papers when he had signed the document Ex.PW-1/2 at the time of the sale registry. DW-1 has further stated in his cross- examination that he became aware that the plaintiff had got blank papers signed from him by deceiving him when Mr. Mahender Kumar who was the witness in Ex.PW-1/6, had informed him that the plaintiff had got blank papers signed CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 27 of 34 by him. DW-1 has further deposed that he could not call Mr. Mahender Kumar as a witness. He has further deposed that he did not inform his advocate about the incident of when Mr. Mahender Kumar had told him about the blank papers having got signed from him by the plaintiff. DW-1 has further stated that apart from Mr. Mahender Kumar, the plaintiff's father informed the defendant about the blank signed papers. DW-1 has further stated that he did not inform the lawyer as he had himself confronted the plaintiff's father and he had stated that he wanted no confrontation and would tear the receipt which was got signed. DW-1 further states that he did not inform his lawyer about Mr. Mahender Kumar even after filing of the case as he did not pay attention to it. He further states that he did not file any police complaint against the plaintiff or his father. The defendant has nowhere stated in his written statement or his affidavit in evidence that it was Mr. Mahender Kumar who had informed him as alleged by him in his cross-examination. I find it hard to believe that the defendant could have simply omitted to have stated in his written statement or his affidavit in evidence such important facts in case these had actually taken place. It appears that the defendant has sought to improve his case during the course of cross-examination. Thus, the version of the defendant that his signatures were taken on blank papers does not inspire confidence.
32. In so far as the plea taken by the defendant that he had sold the third floor of the Malviya Nagar property to the CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 28 of 34 plaintiff's parents for sum of ₹ 1.29 crores and that only part-payment of ₹ 86 lacs had been made and the balance payment was still to be paid, I find the said plea to be highly doubtful. The sale deed dated 10/10/2014 for the third floor being Ex.PW-1/2, which is a registered document, clearly shows that the sale consideration was ₹ 86,00,000/- only. In light of Ex.PW-1/2 which is a registered document and to which the defendant is a party, the defendant would be estopped from claiming anything contrary to the terms of Ex.PW-1/2. Even otherwise, it seems highly improbable that the defendant would have proceeded to execute the sale deed and have it registered also, when as per the defendant the real sale consideration was ₹ 1.29 crores. In the ordinary course of things, any seller would not execute and register the sale deed when according to the seller the sale deed actually does not mention the real sale consideration but mentions something less, and when the balance of the real sale consideration has not actually been paid.
33. During the cross-examination of PW-2, the defendant had sought to confront PW-2 with a copy of a document Mark PW-2/DA purporting to be an agreement to sell between the defendant and the plaintiff's father in respect of the third floor of the Malviya Nagar Property. Mark PW-2/DA purports to show that the real sale consideration was ₹ 1.29 Crores. This was objected to by the plaintiff's counsel on the ground that the original was not produced by the defendant. During his cross-examination on 16/07/2022, CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 29 of 34 the defendant (DW-1) first stated that he could not produce the original of Mark PW-2/DA, and later stated that he could bring the original on the next date of hearing. On the next date of his cross-examination on 05/08/2022, however, the defendant failed to produce the original of Mark PW-2/DA. In the absence of the original document, I would hold that Mark PW-2/DA was not admissible in evidence as there was no foundation laid for leading secondary evidence. Further, I find the said document to be doubtful as there is not a whisper about the said document in the defendant's written statement or affidavit in evidence. The defendant has also admitted that he had not filed any case for recovery of the alleged balance amount against the parents of the plaintiff. In any case, in the face of the sale deed Ex.PW-1/2 which clearly mentions the sale consideration for the third-floor property as ₹ 86 lacs, I would reject Mark PW-2/DA.
34. The defendant was known to the plaintiff and his family since 2011. There were also previous sale transactions between the parties. In this scenario, it is not unbelievable that some friendly relations had developed between the parties. The plaintiff has proved the source of funds and his capacity to give loan in cash of Rs.19,00,000/-. The evidence of the plaintiff as PW-1 is unchallenged and the defendant even failed to test the testimony of PW-1 in cross-examination, despite the second opportunity having been given by the Hon'ble High Court. PW-2 who is father of the plaintiff has also deposed in support of the case of CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 30 of 34 the plaintiff. He is a witness to Ex. PW-1/6 which is the receipt made by the defendant. I have perused the evidence of PW-2 and his evidence has not been shaken in cross- examination. The submission of the defendant that merely because PW-2 was the father of the plaintiff, as such his evidence was to be discarded cannot be accepted. Merely because the witness is a close relative of the plaintiff, that by itself is not a ground to discard his evidence when otherwise his testimony appears believable. The evidence in the form of certified copies of the cross-examination of the defendant's wife in the criminal case is also clinching. Clear admission has been made by the defendant's wife in her cross-examination in the criminal case that the defendant had received ₹ 19,00,000/- in cash. It may be that the reason for the receipt of ₹ 19,00,000/- in cash is stated by her to be something else, however, the fact remains that she has categorically admitted that the defendant received ₹ 19,00,000/- in cash as well as two cheques, which cheques were returned to the plaintiff on his asking. This is very material to the present case. Another very important aspect is that whereas the defendant had filed the affidavit in evidence of his wife in the present suit, subsequently she was dropped as a witness even though she was present when the evidence of the defendant as DW-1 was recorded. It is on 05.08.2022 that DW-1 was confronted with the certified copies of the cross-examination of the defendant's witness in the criminal case arising out of FIR No. 1281/2015. The defendant's wife was also present at that time when the CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 31 of 34 evidence of DW-1 was recorded. After DW-1 was cross- examined and discharged, the defendant's wife refused to enter the witness box and the defendant made a statement that he was dropping his wife as a witness. An adverse inference would be drawn in the aforesaid circumstances against the defendant. In so far as receipt Ex. PW-1/6 is concerned, it was the case of the defendant that the same had been got signed by him on blank papers and was manipulated subsequently. In so far as the signature of the defendant on the receipt is concerned, the same is admitted by defendant. The signature of the defendant runs across two revenue stamps on the receipt and is not merely on the paper only. The defendant has been unable to explain that when his stand was that his signatures were taken on blank papers, how his signatures could run across revenue stamp papers. This also renders the defence taken by the defendant to be highly doubtful. The defendant has submitted that the case of the plaintiff should fail as the second witness to the receipt PW-1/6 was not cross- examined. In view of the evidence which is already on record, I do not find that the failure to examine the second witness to Ex.PW-1/6 could be fatal to the case of the plaintiff. The plaintiff has otherwise been able to prove his case on the basis of the evidence already on record. In so far as the electronic record which was put forth by the defendant in his support, I have already held that the same was inadmissible in evidence for want of compliance with provisions of section 65-B of the Indian Evidence Act. Even otherwise, as a matter of caution, I have gone CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 32 of 34 through the transcript Mark DW-1/1. The Ld. Counsel for the defendant has been unable to show how the transcript Mark DW-1/1 contains any admission by the plaintiff's father of having fabricated Ex. PW-1/6 by taking signatures on blank papers. The transcript Mark DW-1/1 appears to be very vague and no conclusion can be drawn from the same. It is well settled that in a civil suit, parties are required to prove their case on a balance of probabilities. On the evidence on record, I would hold that on a balance of probabilities, the plaintiff has been able to prove that he had given amount of Rs. 19 lacs to the defendant in cash as loan and the defendant had executed the receipt Ex.PW-1/6. The defendant has failed to prove that the receipt Ex.PW-1/6 had been got signed from the defendant by fraud and that the receipt Ex.PW-1/6 was forged and fabricated. The defendant has failed to repay the loan amount despite the notice dated 27.04.2016 Ex.PW-1/10. In the result, I would hold that the plaintiff is entitled for decree for sum of Rs. 19,00,000/-. The plaintiff would also be entitled to pendente lite and future interest on the aforesaid amount which I would compute @ 9% p.a. Both the Issues 1 and 2 are decided in favour of the plaintiff and against the defendant.
35. Accordingly, decree is passed in favour of the plaintiff and against the defendant for sum of Rs. 19,00,000/- along with interest @ 9% p.a. from the date of filing of the suit till actual realisation. Costs are decreed in favour of the plaintiff. Pleader's fees is computed as Rs.15,000/-. Let the CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 33 of 34 decree-sheet be drawn up accordingly.
File be consigned to record room.
Judgment pronounced in open Court.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/09.02.2023 CS No. 59233 of 2016 RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 34 of 34