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TMI Blog2019 (12) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... th each and every aspect of the matter and there is no scope of interference, whatsoever, in the present matter. Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to be paid by him to the plaintiff, but ultimately matter was settled for ₹ 50,000/and he had issued cheque. Defendant claimed that sum of ₹ 50,000/was paid to the plaintiff in cash in July, 2004, but he did not issue any receipt. He further stated that though plaintiff had agreed to return the cheque, but he never returned the same. 4. On the basis of the pleadings adduced on record by the respective parties, learned Court below framed following issues: 1. Whether the defendant has paid a sum of ₹ 50,000/in cash to the plaintiff in the month of July, 2004 in presence of witnesses, as alleged? OPD. 2. Whether the plaintiff is entitled for the recovery of ₹ 58,266/alongwith interest as alleged? OPP. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e result of complete misreading and misinterpretation of the evidence and material on record and against the settled position of law?" 8. Having heard learned counsel representing the parties and perused the material available on record, this Court finds no illegality and infirmity in the impugned judgments and decrees passed by learned Courts below, which otherwise appear to be based upon the proper appreciation of the evidence, be it ocular or documentary adduced on record by the respective parties. Though, during the proceedings of the case learned counsel representing the defendant made this Court to peruse evidence led on record by the respective parties, but he was unable to point out perversity, if any, in the impugned judgments an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no cheque was handed over to the plaintiff in his presence, but admitted that cheque was not filled before him. 11. Defendant while deposing as DW1 stated that amount was settled at ₹ 50,000/, but he could not make the payment as he was not getting the payment from the HP, PWD Department. He further stated that he had handed over cash of ₹ 50,000/to the plaintiff in July, 2004 in the presence of Saiyan Ram and Puran Dass. In cross-examination, this witness admitted that he was purchasing the food grains articles from the shop of the plaintiff and their accounts were settled in the year, 2004. He also admitted that he did not ask for any receipt. 12. DW2, Saiyan Ram deposed that sum of ₹ 50,000/was paid by the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medy of filing the complaint under section 138 of the Negotiable Instruments Act, Court below ought not have entertained the suit deserves out right rejection because there is no bar for a person to file civil suit for recovery of amount paid to him through cheque. Though, in the case at hand, defendant made an attempt to raise a defence that since sum of ₹ 50,000/was paid in cash, he is not liable to pay any money on account of cheque admittedly issued by him in favour of the plaintiff, but as has been taken note hereinabove, no cogent and convincing evidence ever came to be led on record on behalf of the defendant in support of his claim that he had paid sum of ₹ 50,000/in cash to the plaintiff, whereas there is presumption un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." (p.269) 18. Aforesaid exposition of law clearly suggests that High Court, while excising power under Section 100 CPC, cannot upset concurrent findings of fact unless the same are shown to be perverse. But, in the case at hand, this Court while examining the correctness and genuineness of submissions having been made by the parties, has carefully perused evidence led on record by the respective parties, perusal whereof certainly suggests that the Courts below have appreciated the evidence in its right perspective and there is no perversity, as such, in the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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