IN IH2 HON'BLE HIGH GCXJRT OF CHHATTISGABH AT BILASPUR :»R« -$a! /2 003 S.B. (CIVIL REVXSION U/S 115 C.P.C. 1908 (AMEND) 1999) \^ VALUED AT RS. '6, OOO/- r^. APP^Z'^NT/tfEFENDANT w?l ^^^ yinay Kumar Singh Rajput 3/0 Shri Sahani Singh^ aged about 50 years/ Head Constable Police R/o Balod District Durg (C.G,5 ^v ^\ .^" t@A "KESPONDENT/bLAlNTZ FF A^PELLANT ^, '^ ^ %%- t ^ KESPONDSNT/t)EPSNDANT s Wo.2 2. Gaukeran S/o Sadaram Satnami aged about 34 years, Masdoor R/o Kunra Tahsil Nawagarh Distt. Darg (C.G^) State of Chhat'tisgarh • -| Tliroagh- Colleotor Durg(C*G»}| FOJRI14AL RESPONDSNT. CJ:VIL RSyiSION^UNDBK SECTION 115 CODE OF CIVIL PM)CEm^E 1908 (AMELiSED) ACT OF 1999) AGAINST IHE^AP-^ELLATE DECREE DATED (M-09-2002 PASSED BY LEARNED ^DL. DISTRICT JUDOE, W<T;: BBMSTARA^DISTT. DURG IN CIVIL APPEAL. NO."'1B/99 ARISING .-\^^" OUT OP DBCREE OF dVIL SUIT ^0-. 2B/97 GAUKARAN VS. yiNA^:- KUMAR & ANOIHER PASSED ON ^7-8-1998 BY LEARNED GIVIL JUDGE CLASS -2 BEMETARA DISTRIGT DURG^ VALUED RS. 6000/- . ^ 5 HIGH COURT OF CHHATTISGARH AT BILASPUR Civil Revision51 of 2003 Applicjant/ Defen^ant No. 1. Respohdent/ Plaintiff/Appellant Vinay Kumar Singh Rajput Versus Gaukaran &Another. Postfor ^-03-2010 %' Sd/- N-K:Agarwal Judge V.' HIGH COURT OF CHHATTISGARH AT BILASPUR Civil Revision 51 of 2003 Applicant/ D^fendant No. 1. Respondent/ Plaintiff/ADpellant Vinay Kumar Singh Rajput Versus Gaukaran & Another. Reyision under Section 115 ofthe Code ofCivil Procedure, 1908 (Sinale Bench: Hon'ble Mr. N.K. Aaarwal. J.) Present; : Shri Yashwant Tiwari, Advocate for applicant. Dr. Shailesh Ahuja, Advocate for the respondent No. 1. ORDER (Passed on_^_day of March, 2010) 1 Feeling aggrieved by the judgment and decree dated 05.09.2002, passed by the Additional District Judge, Bemetara, Distt. Durg, in |Civil Appeal No. 1B/99, reversing the judgment and decree dated 127.08.1998, passed bythe Second Civil Judge, Class-ll, Bemetara, IDistt. Durg, in Civil Suit No. 2B/97, the instant revision has been jpreferred. [The brief facts of the case are that, the applicant/defendant No. 1 iwas a Head Constable of Police Department and posted at Police iStation Nandghat, Distt. Durg. On 30.11.1995, at Village Badnara, ihe seized Rs. 560/- cash amount from the plaintiff allegedly on account of offence punishable under Section 4-A of Gambling Act. |0ffence was registered against the plaintiff and challan was filed. IVidejudgmentdated 12.05.1998 in Criminal Case No. 796/95, the l-Judicial Magistrate First Class, Bemetara, (for short 'JMFC'), lacquitted the plaintiff from the aforesaid charge of gambling but 1 jseized amount of Rs. 560/- was directed to be confiscated and to ;be deposited in the government treasury as according to JMFC, jthe plaintiff/accursed failed to prove the cash amount of his own. ^, < ^ ^. e |The said finding attained finality as no appeaj was preferred rjthereagainst. jMeanwhile, acivil suit was filed by the plaintiff on 11.04.1997 for Irecovery of Rs. 6000/- against the applicant as well as respondent |No. 2. The trial court, vide its judgment and decree dated j . 127.08.1998, dismissed the said suit. Thereagainst an appeal was Ipreferred. The appeal was allowed and suit was decreed in favour lof plaintiff for Rs. 4440/-alongwith interest @ 6 percent from 130.11.1995 till its recovery. Hence this revision. IShri Yashwant Tiwari, learned counsel appearing for the applicant i |would submit that there is no evidence that respondent No. 1 Iseized Rs. 6000/- from the plaintiff on 30.11.1995; criminal court jdisallowed the plaintiff's claim over seized amount of Rs. 560/- Iwhile acquitting him from the charge of Section 4-A of Gambling |Act and thereagainst no appeal was preferred. The said finding lattained finality. In such circumstances, the judgment and decree jpassed by the First Appellate Court is patently illegal and without Ijurisdiction and deserves to be set aside. j Per contra, Dr. Shailesh Ahuja, learned counsel appearing for the ;respondent No. 1/plaintiff would submit that the criminal court lacquitted the plaintiff from the charge of Section 4-A of Gambling |Act; seizure of Satta Patti was not proved; learned First Appellate !. iCourt, on appreciation of the evidence, held that on 30.11.1995, fthe defendant No. 1 infact seized Rs. 6000/- from the plaintiff; after jdeducting Rs. 560/- for which seizure has been made; the First iAppellate Court has rightly allowed the appeal and granted decree ifor Rs. 4440/- alongwith interest @ 6 percent from 30.11.1995 till |its recovery in favour of plaintiff. The findings are essentially ^^k. i 1 ^^P^ l^tf^"^f ^ ^ ^ 4-' 8. ifinding of fact and not open toiChallenge under revisional Ijurisdiction of this court. i 1 have heard the counsel appearing for the parties, perused the |order impugned and record of both the courts below. The plaintiff's suit for recovery of Rs. 6000/- is based on oral '• • ' [evidence. In order to appreciate the rival contentions of the Iparties, I have examined the entire evidence deposed in the case. 1 Except plaintiff, none of the witnesses have said that the plaintiff |was in fact carrying Rs. 6000/- with him at the time of alleged iseizure. The claim over seized amount of Rs. 560/- has been Idisallowed by the criminal court. Since no appeal has been Ipreferred, the said finding attained finality. In order to prove the t. |fact that applicant/defendant No. 1 forcibly seized Rs. 6000/- from |the plaintiff's pocketand only Rs. 560/- has been shown in the iseizure memo prepared by him, the plaintiff is required to prove by {adducing cogent and clinching evidence that the plaintiff was in ifact carrying Rs. 6000/- with him in order to deposit the same with ;the Gramin Bank to clear his loan dues and the defendant No. 1 in I jfact has seized Rs. 6000/- from his pocket but prepared seizure :memo only for Rs. 560/-. ! iThe plaintiff, in his support, has examination Bhagwat (PW-1) who jhas not stated a single word regarding seizure of Rs. 6000/- by 1 jdefendant No. 1 from plaintiff's pocket. Ramdas and Dhirpal j iKotwar who were also present at the time of seizure of Rs. 6000/-, laccording to plaintiff, were also not examined. As per statement of 1 IShiv Mohan (PW-3), the plaintiff said him that he was carrying Rs. 16000/- with him to clear his loan dues but he has nowhere stated ithat he has in fact seen Rs. 6000/- with the plaintiff. Signature over ^^\ I 1 Yte^-" Sahu 9. 10. 11, 12. |Satta Patti by plaintiff has not been denied. Although it has been |stated that his signature over Satta Patti were forcibly taken. iNotice under Section 80 of CPC (Ex. P/1) was sent on 26.12.1996 i.e. after lapse of more than one year. |After considering the entire evidence and material placed on record, it cannot be said that plaintiff has been able to prove the jfact by adducing cogent and clinching evidence that he was ;carrying Rs. 6000/- with him and the same was seized by the Idefendant No. 1. It is trite law that burden to prove his case is upon the plaintiff and Iplaintiff cannot take benefit of weakness of defendant, therefore, in the considered opinion of this court, the plaintiff utterly failed to Idischarge his burden in proving seizure of Rs. 6000/- by defendant iNo. 1. 1 In view of above, the judgment and decree passed by the First I^Appellate Court is patently illegal and without jurisdiction and the jsame is hereby set aside. In view of foregoing, the revision is allowed. The judgment and idecree passed by the First Appellate Court in civil appeal No. 11 B/99 is set aside. The judgment and decree passed by the trial lcourt in civil suit No. 2B/97 is affirmed. No order asto costs. Sd/- N. K. Agarwal Judge