Proprietor Rajendra Kumar Sundrani, S/o Late Shri Dhuriyamal Sundrani, R/o Gobra Nayapara, District – v. Girish Agrawal S/o Late
Case Details
1 Judgment reserved on 18.11.2024 Judgment pronounced on 18.02.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No 137 of 2008 1. 2. 1. 2. 3. 4. Sanjay Parboiling Industries, Through : Proprietor Rajendra Kumar Sundrani, S/o Late Shri Dhuriyamal Sundrani, R/o Gobra Nayapara, District – Raipur, CG Rajendra Kumar Sundrani, aged about 48 years, S/o Late Shri Dhuriyamal Sundrani, R/o Sindhi Colony, Gobra Nayapara, Rajim, District, Raipur, CG Appellants/defendants Versus Girish Agrawal S/o Late Shri Pradeep Agrawal, aged about 23 years, Akhil Agrawal, S/o Late Shri Pradeep Agrawal, aged kabout 22 years, Ankit Agrawal, S/o Late Shri Pradeep Agrawal, Aged about 21 years,
Legal Reasoning
Smt. Mamta Agrawal, Wd/o Shri Pradeep Agrawal, aged about 43 years All respondents are residents of Devendra Nagar, Tahsil and District Raipur, CG Respondents/plaintiffs For appellants : Ms. Palak Singh Thakur Advocate on behalf of Shri Prateek Sharma Advocate For Respondents : None though served through paper publication Hon’ble Shri Justice Sachin Singh Rajput C A V Judgment The parties herein would be referred to as per their status before the trial Court. 2. This is the first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short “CPC”) filed by the defendants being aggrieved by the judgment and decree dated 08.05.2008 passed by the Additional District Judge, Raipur, CG in Civil Suit No. 4-B/2006 directing them to pay the recovery amount of Rs. 1,50,000/- with 6% interest from the date of institution of suit. 2 3. The admitted facts of the case are that defendant No.2 runs the business of rice mill in the name of defendant No.1 and as the original plaintiff Pradeep Agrawal was engaged in the brokerage of food grain and had business terms with defendant No.2 as such, the relations between them were quite intimate. 4. As per the plaint averments, on account of business relations between defendant No.2 and the original plaintiff Pradeep Agrawal, they had mutual acquaintance with each other. On 10.03.1999 defendant No.2 had demanded Rs. 4,50,000/- as loan from the original plaintiff for business purpose and for that he had also assured him to pay interest at the rate of 18%. As the amount demanded was not in the account of the original plaintiff Pradeep Agrawal at Indian Overseas Bank, Gurunanak Chowk, Raipur, after depositing the same he gave three account payee cheques - all in the name of defendant No.1 i.e. for Rs. 1,00,000/- (Cheque No. 598503) and Rs. 50,000/- (cheque No. 00676785) and another cheque for Rs. 3,00,000/- from the account of his wife being operated in the same Bank. On repeated demands by the original plaintiff Pradeep Agrawal for return of money with interest, the defendant No. 2 on 23.10.2000 gave one account payee cheque No. 242125 for Rs. 1,95,585/- from the account of defendant No.1 which was being operated at Nagrik Sahkari Bank Limited, GE Road, Sharda Chowk, Raipur, in the name of Pradeep Agrawal towards the loan repayment with interest. On the same day i.e. 23.10.2000 defendant No.2 gave another account payee cheque No. 242129 for Rs. 3,91,170/- from the same bank account of defendant No.1 in the name of Mamta Agrawal for repayment of loan with interest. On 23.10.2000 itself Pradeep Agrawal presented those cheques in his bank account at Indian Overseas Bank, Raipur for realization but on account of insufficient balance in the account of defendant No.1, the cheques got dishonoured, and the intimation to that effect was given and received by Pradeep Agrawal from the Bank on 24.10.2000. On this, the original plaintiff sent an intimation to this effect by registered post to defendant No.2 through his advocate demanding back the amount of 1,95,585/- within 15 days from the date of receipt of such information, but the defendants failed to pay back the amount within the stipulated period, nor did they offer their say in the matter. 3 5. Subsequently, the original plaintiff filed a complaint before the Judicial Magistrate First Class, Raipur under Section 138 of the Negotiable Instruments Act, 1881 (NI Act for short) which has also been decided. As the cause of action arose on 24.10.2000, the suit was well within limitation and therefore relief of recovery of the loan amount with interest was claimed. 6. Denying the plaint averments, it has been averred by the defendants in their written statement that defendant No.2 never demanded loan amount of Rs. 4,50,000/- from the original plaintiff Pradeep Agrawal, much less the interest at the rate of 18%. He has categorically denied that defendant No.2 had taken Rs. 1,50,000/- from Pradeep Agrawal and Rs 3,00,000/- from his wife Mamta Agrawal in any manner whatsoever. He has also denied that he had ever given the cheques for Rs. 1,95,585/- to Pradeep Agrawal and Rs. 3,91,170/- to his wife Mamta Agrawal towards repayment of loan amount, and such statement given by them has been characterized as false and fabricated. It is stated that as the defendants were not concerned with any loan amount allegedly taken by them from the original plaintiff, they did not choose to reply to the notice issued by the original plaintiff for dishonour of cheques. They have stated that a false criminal case has been foisted against them by the plaintiffs, who in fact are not entitled to get anything from them, and therefore, the suit filed by the plaintiffs may be dismissed. Additional pleading has been taken by the defendants that for last 10 years there was a close friendship between the defendant No.2 and Pradeep Agrawal as the original plaintiff used to engage himself in brokerage of rice in the business of defendant No.2 being run by him in the name of defendant No.1. It is stated that the original plaintiff nurturing a mala fide intention presented three forged cheques on 10.03.1999 by filling up the vouchers in his own handwriting, for a total sum of Rs. 4,50,000/- for realization in the account of defendant No.1. It is stated that in normal course of business transaction, the defendant No.1 after putting signature on the cheques used to keep the remaining portion thereof blank, and this was well within the knowledge of the original plaintiff who taking undue advantage of this, stole the cheques from the rice mill, and deposited the same in the bank account of the defendants on 11.03.1999 after writing the 4 desired amount, which eventually got dishonoured. For that, the original plaintiff unsuccessfully filed a criminal case. It is stated that the present suit was also filed after three years, and therefore also the same may be dismissed by imposing cost on the plaintiff. 7. On the basis of the pleadings of the respective parties, the trial Court framed the following issues in the matter: (I) Whether defendant No.2 on 11.03.1999 took loan of Rs. 4,50000/- (Four lakhs fifty thousand) from the plaintiff? (ii) Whether defendant No.2 agreed to pay interest at the rate of 18% per annum? (iii) Whether the plaintiff is entitled to receive Rs. 1,95,585 and interest of Rs. 34,915/- totalling to Rs. 2,30,500/-? (iv) Whether the defendants are entitled to get the compensation of Rs. 10,000? (v) Relief and cost? 8. Plaintiffs examined 04 witnesses in support of their case whereas the defendants examined 02 witnesses in support of their case. 9. Learned court below by the impugned judgment and decree directed the defendants to repay the loan amount to the plaintiffs with 6% interest. Hence this appeal. 10. Counsel for defendants submits that the trial Court has committed an error of law and fact in decreeing the suit of the plaintiffs and the findings so recorded are not based on just and proper appreciation of the evidence on record. She submits that in the complaint filed before the Judicial Magistrate First Class under Section 138 of the NI Act, the defendant has been acquitted. She submits that the cheques were stolen by the respondent/plaintiff from the rice mill of the defendants which were misused by him and therefore, the decree of recovery of loan amount with interest, is liable to be set aside. 11. Heard counsel for the appellants/defendants and perused the record. 12. Learned trial Court on the basis of evidence brought on record held the issue No.1 to be positive; issue No.2 as not proved; issue No.3 as partly proved; issue No. 4 as not proved, and as regards issue No. 5, the suit has been decreed. 13. Original plaintiff Pradeep Agrawal (PW-3) has stated that defendant No.2 runs a business in the name and style of Sanjay Parboiling Industries, situated at Gobra, Navapara, Tehsil Aghanpur, District Raipur, CG and showing the need of Rs. 4,50,000/- he asked for 5 the said amount with interest at the rate of 18% per annum. As that much amount was not there in his Overseas Bank Account, on 10.03.1999 he deposited an amount of Rs. 1,50,000/- in his account whereas in the bank account of his wife in the same bank he took Rs. 3,00,000/- from her and deposited the same in her account. It is stated that he gave Rs. 1,00,000/- through account payee Cheque No. 598503 and Rs. 50,000/- through cheque No. 00676785 to the defendant No.2. Another account payee cheque for Rs. 3,00,000/- was given to defendant No.2 on behalf of his wife in favour of defendant No.1. He has stated that on demand being made by him of the loan amount and the interest thereon, on 23.10.2000 defendant No.2 gave an account payee cheque No. 242125 drawn at Nagrik Sahkari Bank Limited, GE Road Sharda Chowk, Raipur for Rs. 1,95,585/- pertaining to the account of defendant No.1. According to him, the second account payee cheque No. 242129 drawn at the same bank was given to him for Rs. 3,91,170/- in the name of his wife Mamta Agrawal, and all the three cheques so given on behalf of defendant No.2 were towards the loan and the interest thereon. He has stated that on 23.10.2000 he presented all the three cheques in the Indian Overseas Bank, Raipur for realization from the bank account of defendant No.1 at Nagrik Sahkari Bank Limited, Raipur, but they got dishonoured for there being insufficient balance, and the information for that was given to him by the Bank on the next day i.e. 24.10.2000, which is the part of record. He has further stated that on 02.11.2000 he sent an intimation to this effect by registered post to defendant No.2 through his advocate demanding the cheque amount within 15 days from the date of receipt of such information, but the defendants failed to pay back the amount within the stipulated period, nor did they give their reply in the matter. Subsequently, on 26.12.2002 he filed a complaint before the Judicial Magistrate First Class, Raipur under Section 138 of the NI Act. He has stated that he is entitled to get Rs. 2,30,500/- including interest. Thereafter, he was subjected to lengthy cross examination regarding the issue of cheques and the defendants tried to dislodge his testimony by asking lengthy questions. 14. PW-1 namely Vinayak Laxman Mohadikar, Assistant Manager, Indian Overseas Bank, Gurunanak Chowk, Raipur has stated that he brought two cheques with him – Nos. 598503 for Rs. 1,00,000/- and No. 0676785 for Rs. 50,000/- which were issued by the 6 original plaintiff – one was from the Hindu Joint Family and the other was from his own bank account, which were realized from both the accounts of the original plaintiff on 11.03.1999, which is evident from Ex. P-1 and P-2. Ashok Sharma (PW-2) – the Clerk in Nagrik Sahkari Bank, Raipur has stated that he has brought with him the certified copy of deposit slip of the Bank with regard to the cheque presented in his Bank for realization, which is Ex. P-7. In cross examination, he has stated that according to Ex. P-7, an amount of Rs. 4,50,000/- was deposited in the Indian Overseas Bank on 11.03.1999 for realization. Ulhas Athle (PW-4) – the Hand Writing Expert, has stated that he compared the signatures on the documents of Ex. D-1 and D-2 and gave his report Ex. P-17 which says the disputed writing marked as D-3 is not written by the person who wrote the comparative writings marked as S-1 to S-7. 15. Sunanda Dhenge (DW-1) is also the Hand Writing Expert who has stated that the recital mentioned in the back side of Ex.P-7 and the one mentioned in the front side of Ex. P-13 is written by the same person. Rajendra Kumar Sundrani (DW-2) has stated that the plaintiff himself forged three cheques on 10.03.1999 and by hatching a conspiracy he deposited the same in the bank account of defendant No.1 at Nagrik Sahkari Bank, Raipur and he filled the voucher in his own handwriting. Three cheques mentioned the amount of Rs. 1,00,000/-, Rs. 50,000/- and Rs. 3,00,000/- totalling to Rs. 4,50,000/-. Out of these three cheques, two were allegedly written in the name of defendant No.1 by the plaintiff himself and the one by his wife Mamta Agrawal. He has stated that an amount of Rs. 1,50,000 and Rs. 3,00,150/- was withdrawn by the plaintiff by stealing two cheques from his office on 11.03.1999. He has stated that he did not take any loan on behalf of defendant No.1 either from the plaintiff or from his wife Mamta Agrawal on 10.3.1999 or on any other date. He has stated that two stolen cheques were filled up by the plaintiff and deposited in his bank account and also in the account of his wife Mamta Agrawal which ultimately were dishonoured for insufficient balance in the account of defendant No.2. He has stated that notice regarding dishonour of these cheques was sent to the defendant No.1 through his advocate on 31.10.2000 demanding the cheque amount with a warning that in failure thereof the complaint under Section 138 of NI Act would be filed against him. He has stated that 7 after receiving the said notice he with one of his friends went to the house of the plaintiff, where he told him that as he was in need of money, he did the said act, but he also assured him that he will not take any civil or criminal action against him and therefore on his assurance, he (defendant No.2) did not respond to the notice sent by the plaintiff. He has further stated that for dishonour of the cheque the plaintiff had filed a criminal case No. 74/2001 before the JMFC Raipur and after being found guilty he was sentenced to RI for six months and fine of Rs. 5000/-. Against the said judgment, the defendant No.2 preferred a criminal appeal No. 143/2004 which was decided by the Additional Sessions Judge, Raipur on 01.03.2005 and he was acquitted of the charge levelled against him. Thereafter, the plaintiff filed a suit after three years for recovery of the amount which is liable to be dismissed and the plaintiff should be directed to pay compensation. In cross examination, he has stated that the cheques were kept in the drawer of the table where he used to work and that 8-10 signed blank cheques were kept in the drawer of the table and out of that 5-6 blank cheques were stolen and he had no information as to on what date they were stolen. After notice was received, he came to know that the cheques were stolen but he did not lodge any report for that, nor did he inform the bank about the same. 16. The points which are required to be determined by this Court are as under:- (i) Whether an amount of Rs. 4,50,000/- was given as loan by the plaintiff to the defendants? (ii) Whether defendant No.1 gave the above said cheques to the plaintiff in lieu of the return of loan amount? 17. As mentioned earlier, the original plaintiff in his statement has stated in the line of pleadings taken in the plaint. From his statement, it is evident that two cheques were given by him – one from the account of Joint Hindu Family and the other of his wife’s account, and the same were deposited in the account of the defendant No.1 and an amount of Rs. 04,50,000/- was received in its account on 11.03.1999, and this well proven fact could not be dislodged by the defendants by adducing evidence to the contrary. This fact is also fortified by the statement of Vinayak Laxman Mahadikar (PW-2) and Ashok Sharma (PW-2). Original plaintiff (PW-3) in his statement has clearly stated that the amount of Rs. 04,50,000/- was given as loan to the defendants. The loan was advanced through cheques 8 and the amount was credited in the account of defendant No.1. Since the defendants have not been in a position to prove to the contrary, it can safely be inferred that the defendants had taken a loan from the plaintiffs and did not ever pay the same back, and the finding to this effect recorded by the Court below does not appear to be unjust or off the record. Being so, the point No.1 is held to be positive. 18. Thus from the evidence of the witnesses as discussed earlier, it is established that the cheques given by the defendants were dishonored. Learned counsel for the defendants tried to persuade this Court that the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 was dismissed by the competent Court, therefore, it can safely be held that the cheques were not given in lieu of the loan amount. This Court keeping in mind the settled legal position that the finding of a criminal court is not binding on the civil Court, does not countenance this submission of the counsel for the defendants and therefore the same is liable to be turned down. Dealing with identical question, it has been held by the Supreme Court in the matter of Syed Askari Hadi Ali Augustine Imam and another v. State (Delhi Admn.) and another reported in (2009) 5 SCC 528 as under:- “25…Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court… 19. Thus as the plaintiffs have been able to duly prove their case by leading cogent and prudent evidence, the findings recorded by learned trial Court cannot be said to be contrary to the evidence on record and therefore, point No.2 is also decided as positive. 20. In the result, the appeal being devoid of substance is liable to be and is hereby dismissed. Appellant to bear the cost of appeal. Decree be drawn accordingly. Sd/- (Sachin Singh Rajput) Judge AVANISH JYOTISHI Digitally signed by AVANISH JYOTISHI Date: 2025.02.19 12:00:59 +0530 Jyotishi