IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 94 of 2011 Sri Krishan Kumar, son of late Sri Kasturi Lal, resident of No. 11, Rest Camp East-II, Dehradun. … Appellant-Defendant. Versus Sri Bharat Singh, son of Sri Hari Singh, resident of Village Bhagwantpur, P.O. Khas, District Dehradun. … Respondent-plaintiff. Mr. Neeraj Garg, Advocate, learned counsel for the appellant. Mr. Piyush Garg, Advocate, learned counsel for the respondent. Date December 08, 2011. Hon’ble B.S.Verma, J. (Oral) Learned counsel for the respondent, Mr. Piyush Garg, Advocate, files his Vakalatnama. The same is taken on record. This second appeal has been directed against the judgment and decree dated 22-7-2011 passed by 3rd Additional District Judge, Dehradun in Civil Appeal No. 26 of 2010, Sri Bharat Singh Vs. Sri Krishan Kumar, arising out of the judgment and decree dated 29-3-2010 passed in Original Suit No. 69 of 2008, Sri Bharat Singh Vs. Sri Krishan Kumar. By the judgment and decree dated 29-3-2010, the suit of the plaintiff-respondent was dismissed by 3rd Additional Civil Judge (Senior Division) Dehradun. By the judgment and decree dated 22-7-2011, the appeal filed by the plaintiff-respondent has been allowed and the suit of the plaintiff-respondent has been decreed by the first appellate Court. Brief facts giving rise to the present appeal according to the plaint allegations are that the plaintiff-respondent entered into an unregistered agreement for sale and purchase dated 13-3-2007 with Deepak Singh and his brother Vijay Singh and the said agreement was executed between them for a consideration of Rs. 4,75,000/- on which the defendant-appellant herein, Narendra Sen and Deepak Singh put their signatures in presence of the plaintiff and the plaintiff also signed on the agreement, which was 2 containing the terms and conditions of sale. As per contract agreement, the plaintiff-respondent paid a sum of Rs. 4,00,000/- in cash and also paid a sum of Rs. 1,00,000/- through cheque to the defendant. The defendant and other persons were under obligation to perform their part of contract and to execute the sale deed in favour of the plaintiff-respondent within a period of three months. According to the defendant-appellant no such agreement had been filed before the trial Court as well as before the first appellate Court and the burden of proof to establish that amount of Rs. 5,00,000/- had been paid was upon the plaintiff-respondent. The plaintiff- respondent was also liable to discharge his burden that the defendant was under obligation to pay an amount of Rs. 2,00,000/-. The dispute arose between the plaintiff-respondent and defendant-appellant when the demarcation of the land in question was not made on the spot prior to execution of sale deed and the land shown to the plaintiff was altogether different from the land mentioned in the agreement, therefore, an F.I.R. was lodged against the defendant Krishan Kumar and three other persons Narendra Sen Narendra Singh, Deepak Singh and Vijay Singh in Police Station Cantt. Dehradun on 7-6-2007. On the same day in presence of the Station Officer of police, all the four persons had entered into a compromise whereby the defendant was to pay a sum of Rs. 2,50,000/-, Narendra Sen was to pay a sum of Rs. 1,00,000/- to the plaintiff, Deepak Singh was to pay Rs. 1,00,000/- to plaintiff and Vijay Singh was to pay a sum of Rs. 50,000/- to the plaintiff and pursuant to the compromise, all other three persons than the defendant had paid the said amount, while the defendant Krishan Kumar paid a sum of Rs. 50,000/- in cash and issued a cheque for a sum of Rs. 2,00,000/- payable on 27-6-2007. The plaintiff- respondent presented the cheque in question to the Bank on 20-12- 2007, but the Bank concerned returned the cheque to the plaintiff with an endorsement that the fund available in the account of the defendant is insufficient and the cheque was thus dishonoured. The plaintiff sent a notice by registered post to the defendant on 8-1- 2008 to pay the amount of Rs. 2,00,000/-. The defendant sent a 3 reply asking the plaintiff to bring the cheque and to collect the money from the defendant. Despite another registered notice dated 30-1-2008, when the defendant-appellant failed to pay the amount of Rs. 2,00,000/-, the plaintiff-respondent herein filed the suit bearing Original Suit No. 69 of 2008 against the defendant before the trial Court for recovery of Rs. 2,00,000/- along with interest. The learned trial Court dismissed the suit by judgment and decree dated 29-3-2010 on the ground that the agreement was not filed by the plaintiff and that plaintiff failed to establish that the defendant was under any legal obligation to pay the sum of Rs. 2,00,000/- to the plaintiff. Aggrieved by the said judgment and decree, the plaintiff preferred appeal. The learned appellate Court after perusing the evidence led by the parties has allowed the appeal and decreed the suit of the plaintiff on the ground that the defendant had issued a cheque for Rs. 2,00,000/- before the police after owing the liability of the amount, which was received by the defendant under the agreement of contract and in view of Section 139 of the Negotiable Instruments Act, which provides that “it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.” The plaintiff filed the cheque, which was issued by the defendant, but the defendant-appellant did not prove this fact that the cheque in question was issued by him for any other liability and not in respect of the liability under the alleged agreement. The learned appellate Court has held that the finding of the trial Court is perverse to the effect that the agreement was not filed. Particularly, when the compromise was made before the police officer. According to the defendant-appellant, in his statement, the defendant, D.W.1 Krishan Kumar has stated on oath that the cheque was issued by him under pressure of police. The learned appellate Court has categorically held that no such complaint was made to the higher Officer of the police and no such steps were taken to declare the alleged Cheque void, therefore, on the basis of 4 admission of issuance of the cheque by the defendant owing his liability to that effect, the appeal was allowed and the suit of the plaintiff-respondent has been decreed on the basis that the cheque was issued by the appellant-defendant. The defendant-appellant has filed this second appeal on the ground that the liability under the criminal act is altogether different from that of the civil liability and the same has to be proved independently. The trial Court has given a perverse finding and misread the evidence brought on record by the plaintiff- respondent. So far as the agreement is concerned, when the compromise was made and all the four persons including the defendant, who had paid a sum of Rs. 50,000/- in cash and co- owner of the land Narendra Sen refunded the money to the plaintiff-respondent. Besides, the defendant Krishan Kumar also issued a cheque for an amount of Rs. 2,00,000/-, which was dishonoured as the fund was not found to be sufficient in the account of the defendant, therefore, the suit for recovery of money was filed instead of initiating proceedings under Section 138 of the Negotiable Instruments Act. In my view there is no bar to file recovery proceedings if the suit is within limitation. The suit was decreed by the learned first appellate Court on the basis of the cheque, which had been admittedly issued by the defendant- appellant in favour of the plaintiff-respondent. In the suit, the plaintiff examined himself and proved this fact that the cheque was issued by the defendant and I find that the suit has not been decreed only on the basis of admission made by the defendant, as contended by the learned counsel for the defendant-appellant. The learned first appellate Court after thrashing the evidence led by the parties has rightly decreed the suit on the basis of the cheque issued by the defendant in favour of the plaintiff. The judgment of dismissal of suit and the decree passed by the trial Court has been rightly set aside. The view of the trial Court was erroneous that no such agreement was filed by the plaintiff. When the parties have settled the dispute by way of 5 compromise arrived at before the Police Officer, there was no need to consider the alleged agreement in question. The question whether the cheque was issued in lieu of the agreement is a finding of fact and the plaintiff has established his case by adducing cogent and reliable evidence. No substantial question of law arises for consideration in this second appeal. The appeal is liable to be dismissed outright. The second appeal is accordingly dismissed summarily. All pending applications stand disposed of. (B.S.Verma, J.) RCP