A PIL judge disposed of a writ petition for cheque bounce. The court held that disputed factual issues requiring recording of oral evidence cannot be adjudicated in this court. The petitioner was given liberty to file a suit for recovery.
Liberty to file a suit against recovery before the civil court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 2
Case :- WRIT - C No. - 7917 of 2018
Petitioner :- Dharmveer Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Jitendra Singh Counsel for Respondent :- C.S.C.
Hon'ble Ram Surat Ram (Maurya),J.
Earlier the matter was adjourned on 28.2.2018 in order to enable the to produce Cheque Book as well as other papers relating to account. Now, a supplementary affidavit annexing copy of cheque Book, ATM Card and other papers has been filed.
The counsel for the respondents pointed out that at the time of sanctioning of loan a Saving bank account of the debtor is opened in the bank and the amount of loan is transferred in the Saving Bank account. Cheque book and others papers are supplied to the debtor to withdraw his loan amount. In that connection Saving Bank Account No.50200004502800 in the name of the petitioner was opened in the bank and cheque book has been also issued to operate the account.
So far as the controversy according to the petitioner is regarding Cheque Nos. 2, 3 and 4 which has been taken from him by Mukesh Kumar who was an employee of the bank and who has assisted the petitioner in opening the bank account and in obtaining loan and he has, in fact, withdrew the amount. The petitioner has also filed a copy of F.I.R. in the matter in which police has investigated and submitted a charge sheet against Mukesh Kumar. Mukesh Kumar admitted his liability and issued two cheques of total amount of Rs.7,70,000/- to the petitioner. The petitioner deposited the cheques for encashment in the bank but it could not be encashed. Therefore, the petitioner filed a Criminal Complaint No.2108 of 2017 against Mukesh Kumar in which the Magistrate by his order dated registered Complaint Case No.565 of 2017 under Section 138 of Negotiable Instruments Act against Mukesh Kumar and issued summons to Mukesh Kumar. in the meantime, Mukesh Kumar had left the service of the bank. Since Mukeh Kumar was an employee of the HDFC Bank at the relevant time as such HDFC is vicariously liable for the misconduct committed by Mukesh Kumar. In view of the above fact, the petitioner is not liable to pay the amount encashed through cheque nos. 2, 3 and 4.
I have considered the arguments of the parties. It is highly disputed questions of fact as to whether the amount was withdrawn by Mukesh Kumar or by the petitioner. It is admitted from the cheque book filed by the petitioner that amount was transferred in Savings Bank account opened in the bank.
So far as filing of criminal case is concerned, at present merely charge sheet has been filed or summoning order has been passed, which is not a final verdict denying or accepting the case of the petitioner or absolving Mukesh Kumar from his liablilty to repay the amount.
In the circumstances highly disputed issues are involved which cannot be adjudicated upon by this Court as for adjudication recording of oral evidence is also required which is not possible before this Court.
The writ petition is disposed of giving liberty to the petitioner to file a suit against recovery before the civil court. However, it is directed that in case the suit is filed it shall be decided on its own evidence without being influenced by the observations made by this court hereinabove.
Order Date :- 8.3.2018 mt
2 issues framed by the court
Whether this court can adjudicate liability regarding disputed facts and requirement of recording oral evidence in a cheque dispute filed in criminal court.
Whether the writ petition against cheque dishonour involving disputed facts of withdrawal of funds can be decided without recording evidence.
Dharmveer Singh
State Of U.P.
Ram Surat Ram
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
