Allowed

Balwinder Singh v. Joginder Pal

Punjab & Haryana HC18 Feb 2009CR/5136/2007

Case brief

AI extract

What is this about?

The High Court quashed a decree awarding recovery of Rs. 10,000. The Court held that an FIR registration and pendency of similar suits were insufficient grounds for judgment, especially when the same witnesses appeared in all dismissed cases, indicating planting, and no documentary proof of money delivery existed.

What did the court decide?

The impugned judgements and decrees of Courts below are set aside and the suit of the plaintiff/respondent is dismissed.

Balwinder Singh Vs Joginder Pal — Cheating and Forgery | Punjab & Haryana HC (2009)

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Civil Revision No. 5136 of 2007 (O&M) 1

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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-.-

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Civil Revision No. 5136 of 2007 (O&M) Date of decision : 18.02.2009

Balwinder Singh

.......Petitioner

Versus

Joginder Pal

......Respondent

Coram: Hon'ble Ms Justice Nirmaljit Kaur

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-.-

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Present: Mr. Vipin Mahajan, Advocate for the petitioner/defendant

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None for the respondent/plaintiff

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-.-

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Nirmaljit Kaur, J.(Oral)

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C.M. No. 19348 CII of 2007

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This application has been filed by the petitioner under Order 41 Rule 27 read with Section 151 C.P.C. seeking permission for placing on record certified copies of the judgements and decrees (Annexure P-1 to P- 3) by way of additional evidence.

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It is contended by the learned counsel for the applicant/petitioner that the trial Court vide judgement and decree dated 16.12.2002, decreed the suit of the plaintiff/respondent. He further contends that at the time of passing of the aforesaid judgement and decree, the judgements and decrees, which are sought to be produced on record as additional evidence, were not available and, as such, could not be produced. Though, the petitioner admitted in cross examination that the suits are pending.

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Civil Revision No. 5136 of 2007 (O&M) 2

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Having gone through the pleadings and the judgements and decrees of the Courts below, I find that the judgements and decrees, which are sought to be produced on record as additional evidence, have material bearing on the fate of the present suit. To arrive at a just and proper decision, it is necessary to allow these judgements and decrees (Annexure P-1 to P-3) to be taken on record. Further, at the time of admission of the revision petition, learned counsel appearing for the respondents did not object to the present application. Even today, learned counsel for the respondent has not come present.

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In view of the above, the present application is allowed and the judgments and decrees (Annexure P-1 to P-3) are taken on record.

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C.M. stands disposed of.

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Civil Revision No. 5136 of 2007

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This civil revision has been directed against the judgement and decree dated 16.12.2002 passed by the Additional Civil Judge (Senior Division), Gurdaspur, decreeing the suit of the respondent/plaintiff for recovery of Rs.10,000/- along with interest and the judgement and decree dated 29.05.2007 passed by the Additional District Judge (Adhoc), Fast Track Court, Gurdaspur, thereby, affirming the judgement and decree of the trial Court, while dismissing the appeal filed by the petitioner/defendant.

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Learned counsel for the petitioner has raised a law point as to whether mere registration of a FIR and the admission qua pendency of three more suits against the petitioner, is sufficient to decree the suit, especially when all those suits were dismissed by the trial Court on merits and have attained finality. In all these suits, same witnesses had appeared

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Civil Revision No. 5136 of 2007 (O&M) 3

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against the petitioner, as in the present suit. Since both the Courts have dismissed the suit of the petitioner on the ground that three more suits on the identical issues, are pending and FIRs has also been registered against him, outcome of the law point has material bearing on the conclusion of the present case. However, the law point is accordingly framed.

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The allegations in the suit was that the petitioner/defendant took Rs.10,000/- from the plaintiff and assured him to arrange VISA for Libia, but he neither arranged for the VISA, nor returned Rs.10,000/-. It was further alleged in the suit that the petitioner/defendant has retained with him the original passport of the plaintiff/respondent. To that effect, a case under section 420 of the Indian Penal Code was also registered against the petitioner/defendant. The plaintiff examined two witnesses i.e. Robin Masih as PW1 and Seema as PW2. The plaintiff also stepped into the witness box as PW 3. While decreeing the suit of the plaintiff/respondent, the trial Court has basically taken into consideration three grounds; firstly , Robin Masih (PW1) and Seema (PW2) had fully supported the case of the plaintiff; Secondly, FIR under Section 420 IPC had been registered against the petitioner/defendant, and thirdly , three more cases having almost similar allegations as in the present suit, were also pending against the petitioner and lastly, held that there is no reason to falsely implicate the petitioner/ defendant.

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Having heard the learned counsel for the petitioner at and also having perused the pleadings, I find that it is a fit case, warranting interference by this Court in the impugned judgements and decrees passed by both the Courts below. One of the allegations in the suit was that the

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Civil Revision No. 5136 of 2007 (O&M) 4

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petitioner/ defendant did not return the original passport of the plaintiff/ respondent. It is an admitted position that no witness from the office of the the Regional Passport was ever produced by the plaintiff so as to prove that a passport, in question, had ever been issued to him. A very feeble attempt was made to show the existence of the passport in question by mentioning its number in the plaint. There was no other evidence on the record to corroborate that the number of the passport in question as mentioned in the plaint was of a passport belonging to the plaintiff or someone else. In the absence of any such evidence, this very allegation appears to be untenable and, as such, unsustainable in the eyes of law. The second ground on which both the Courts below have gone to hold the petitioner/defendant guilty, was that FIR under Section 420 IPC was registered against the petitioner/defendant on the basis of very same allegation. Learned counsel for the petitioner has placed on the record of this case a certified copy of the judgement and decree dated 29.08.2008 passed by the Additional Chief Judicial Magistrate, Gurdaspur, vide which, the petitioner has since been acquitted. The aforesaid judgement and decree is taken on record and marked as 'A'. Even if the aforesaid judgement and decree is not taken on record, the fact remains that the plaintiff was required to stand on his own legs to prove his case in the suit. No documentary evidence has been produced on record either in the form of receipt, pronote or acknowledgement for the alleged delivery of Rs.10,000/- by the plaintiff to the petitioner. A mere registration of a FIR against the petitioner does not prove the allegations. The third ground on which both the Courts below held the petitioner/defendant responsible was that three separate similar

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Civil Revision No. 5136 of 2007 (O&M) 5

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suits for recovery against the petitioner were also pending. The pendency of various suits is not sufficient ground to hold the petitioner/defendant liable in the present case. Each and every case has to be examined and decided independently. Even otherwise, the said suits have since been dismissed. A number of judgements and decrees Annexures P1 to P3, have been placed on record vide civil miscellaneous No 19348 CII of 2007.

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On a careful examination of the aforesaid judgements and decrees (Annexures P-1 to P-3), it transpires that in all the four different suits filed by the different plaintiffs, namely, Balbir Masih, Joginder Pal, Sat Pal and Kundan Masih, the plaintiffs had examined the very same two witnesses, i.e. Robin Masih (PW1) and Seema (PW2), as in the present case. Obviously, these two witnesses cannot be chance witnesses and, are planted witnesses. Hence, their evidence cannot be considered to be trustworthy.

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Thus, it is accordingly held that the registration of FIR and the admission regarding pendency of the three suits, in itself, is not a sufficient ground to hold the petitioner guilty, especially when all those suits stood dismissed subsequently in which the two independent witnesses examined, were same.

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Resultantly, the present civil revision petition stands accepted. The impugned judgements and decrees passed by both the Courts below are hereby set aside and the suit of the plaintiff/respondent is accordingly dismissed.

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[Nirmaljit Kaur] Judge

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February 18, 2009 mohan

Balwinder Singh v. Joginder Pal

Case brief

What is this about?

What did the court decide?

Balwinder Singh v. Joginder Pal

Case brief

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What did the court decide?

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