CS/58/2015 on 31 December 2018

1. Instant Civil Suit for recovery of Rs.52,63,864/- alongwith interest @ 18% per annum has been instituted by the plaintiff through its proprietor, who was running a petrol pump, against the defendant. The said petrol pump was allotted in favour of the plaintiff by the Indian Oil Corporation vide agreement Ex.PW-1/A.

2. The averments made in the plaint reveal that plaintiff had engaged the defendant as Manager to look after and manage the business affairs of the petrol pump set up by the plaintiff. Since the defendant was the man of confidence and trust and had close proximity with the family of the plaintiff, therefore, he was lateron engaged/appointed as power 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.

of attorney by the plaintiff in order to ensure smooth and proper running of the petrol pump business, besides the fact that the plaintiff due to her family engagements and having small children was also not in a position to give her time to look after the business personally, and only for this confidence and blind faith she had handed over a cheque book, some leaves whereof were signed by the plaintiff and some were blank, to the defendant for the smooth running of the business. The said cheques were handed over to the defendant only for the purchase of petrol and diesel from the Oil Company.

3. It is the claim of the plaintiff that the defendant did not work fairly and misused and misappropriated the sale proceeds/money of the petrol pump. He, instead of depositing the sale proceeds into the bank account of the plaintiff, misappropriated the same by depositing into his personal/individual as well as his friends’ bank accounts. He also misappropriated the cash amount by illegally appropriating the same for his personal use. This fact came to the notice of the plaintiff on 15.3.2013, when the plaintiff received a call from her banker i.e. State Bank of Patiala, Navgaon Branch, District Solan, H.P. to the effect that a personal cheque bearing her signature was presented by someone for encashment to the bank. Thereupon, on the next day i.e. 16.3.2013, the plaintiff visited the bank and came to

know that 34 numbers of cheques were forged and misused by the defendant. It is averred by the plaintiff that the signed cheques were given to the defendant to purchase petrol/diesel and other allied products from the Indian Oil Corporation and had never issued any personal cheque in favour of anyone and as such she got the payment stopped of the said cheques. Thereafter, the plaintiff inquired from the defendant about the said cheques and its misuse thereof. The defendant replied that the cheques were misplaced somewhere and assured that he will trace out the same.

4. After acquiring knowledge about this embezzlement in the business, the plaintiff demanded the account books from the defendant, but to no avail. On the contrary, in October, 2013, the defendant locked the premises of the petrol pump. In January, 2015, after firm persuasion, the defendant gave a duly sworn affidavit to the plaintiff that the said 34 cheques were in his possession and the same got misplaced somewhere. He further took responsibility for the consequences of the above said cheques, besides undertaking and submitting written acknowledgement by way of an affidavit, Ex.PW-4/B to the effect that he shall also be responsible for any financial dispute of the Vinay Service Station.

5. It has been averred in the plaint that the defendant has also admitted the factum of filing criminal cases

with respect to the dishonoured cheques; amount claimed therein belonging to the plaintiff. The said complaints were filed by the defendant in his individual name claiming the cheque amounts to be his own. The copies of the complaint filed under Section 138 of the Negotiable Instruments Act (for short ‘Act’) before the Courts at Una are Ex.PW-9/A to Ex.PW- 9/D. The copy of the said affidavit is Ex.PW-4/B and entry in the register of the Notary Public with respect to the attestation of the said cheque by the Notary public is Ex.PW-4/A. Despite repeated requests to hand over the accounts pertaining to the business, defendant did not adhere to the request of the plaintiff. However, in the month of March, 2014, he produced a sundry debtors list before the plaintiff and on the basis of the said list he informed that a sum of Rs.30 lacs is recoverable from various persons to whom the defendant had sold the petrol/diesel on credit basis. The list of sundry debtors is Ex.PW-1/B. On inquiry made by the plaintiff from the debtors, few of whom she could contact, disclosed that they have already paid the money to the defendant and nothing is due towards the plaintiff.

6. It is further averred by the plaintiff that the defendant acted in gross negligence and misappropriated the sale proceeds to his personal use, which fact is evident from the claim which he has laid in the complaints filed under Section 138 of the Act, and also from the deposits of sale

proceeds made into his personal accounts and also into the account of his friend Shri Gurdeep Singh. The plaintiff after coming to know about various act of omission and commission and malafide intention of the defendant, cancelled the power of attorney executed in favour of the defendant in the month of May, 2014, vide revocation deed Ex.PW-1/C. Even after revocation of power of attorney, the defendant continued to collect the payments from various persons and utilized the same for his own purposes. Thereafter, the plaintiff also made proclamation in a daily newspaper “Punjab Kesri” dated 23.7.2014, Ex.PW-1/D, declaring therein that the defendant has nothing to do with the business of the plaintiff’s petrol pump and that no one should deal with him in connection with the affairs of the petrol pump. In the month of August 2014, the plaintiff got served a legal notice dated 20.8.2014, Ex.PW- 1/E, upon the defendant, thereby calling upon him to hand over the account books pertaining to the business of the petrol pump and also to make good the loss caused by him to the plaintiff. Plaintiff alleged that since the defendant had misappropriated the sale proceeds from the petrol pump, she got registered a case FIR No.67/2014, Ex.PW-10/A, with the police of Police Station, Darlaghat against the defendant. Plaintiff averred that due to the misappropriation of the income/sale proceeds by the defendant, the entire business of the petrol pump ran into losses, resultantly, the plaintiff was

forced to surrender the petrol pump to the Indian Oil Corporation in the month of February, 2015. The defendant never handed over either the statement of the accounts or any other document pertaining to the business of the petrol pump to the plaintiff. It is only at the time of handing over the petrol pump to the Indian Oil Corporation, the plaintiff succeeded to lay her hands on some of the counter foils of the pay-in-slips of the plaintiff’s bank account. The original counter foils of the bank pay-in-slips are Ex.PW-1/G-1 to Ex.PW-1/G-120, besides two note books qua daily sale of the petrol and diesel and its allied products, which are Ex.PW-1/H and PW-1/J.

7. Record reveals that on 31.5.2016, Shri Praneet Gupta, Advocate, who was representing the defendant, moved an application bearing No.OMP No.158 of 2016, seeking therein permission to withdraw his power of attorney on behalf of defendant No.2, which was allowed on the same day. Since defendant failed to turn up and file written statement despite receipt of the notice annexed with the application, OMP No.158 of 2016, which was disposed of vide separate order dated 31.5.2016, Court struck off his defence and he was ordered to be proceeded ex-parte. Subsequently, the matter came to be fixed for recording ex-parte evidence.

8. I have heard learned counsel for the plaintiff and gone through the record of the case.

9. Plaintiff with a view to prove her case examined as many as 13 witnesses, whereafter on 11.09.2018 evidence of the plaintiff was closed on the request having been made by her counsel and the matter was listed for final arguments.

10. Plaintiff, who examined herself as PW-1, successfully proved the contents of the plaint. Since statement given by the plaintiff is exact narration of averments contained in the plaint, which have already been taken note of in earlier part of the judgment, this Court deems it not necessary to reproduce the same for the sake of brevity. However, it may be added that the plaintiff, while examining herself as PW-1, exhibited the following documents:

1. Ex.PW-1/A, agreement vide which Indian Oil Corporation allotted the petrol pump in favour of the plaintiff.

2. Ex.PW-1/B, list of sundry debtors alleged to have been made by the defendant in March, 2014.

3. Ex.PW-1/C, revocation deed, whereby in the month of May, 2014, plaintiff cancelled the General Power of Attorney executed by her in favour of the defendant.

4. Ex.PW-1/D, proclamation issued in daily Hindi newspaper, ‘Punjab Kesari’, dated 23.7.2014, stating therein that the defendant has nothing to do with her petrol pump and that no one should deal with him in connection with the affairs of the petrol pump.

5. Ex.PW-1/E, copy of legal notice dated 20.8.2014, served upon the defendant through Registered Post.

6. Ex.PW-1/F is postal receipt.

7. Copy of FIR No.67/14, 31.10.2014 registered by the plaintiff against the defendant in Police Station, Darlaghat, mark ‘H’.

8. Ex.PW-1/G-1 to PW-1/G-120 are counter foils of the pay-in-slips, allegedly recovered by the plaintiff at the time of handing over the petrol pump to the Indian Oil Corporation.

9. Ex.PW-1/H and Ex.PW-1/J Note books, qua daily sale of the petroleum products.

10. The details of sale proceeds, prepared by the plaintiff on the basis of counter foils, allegedly deposited by the defendant in his personal home loan account, are Ex.PW-1/K and Ex.PW-1/L.

11. PW-2, Mr.Sanjay Kumar, stated that he was engaged as salesman by the plaintiff in her petrol pump Vinay Service Station at Darlaghat, Tehsil Arki, District Solan, He further stated that defendant Jagdish Thakur was employed by the plaintiff as Manager of the petrol pump. He stated that he, in his capacity as salesman, had been making entries qua daily sales in a copy maintained for the purpose and used to hand over the sale proceeds to Jagdish Thakur everyday. The entries in the copy Ex.PW-1/H and Ex.PW-1/J are in his handwriting. Statement of PW-3 Shri Harish Kumar is not very relevant because he only tendered in his evidence original record of Criminal Case No.82-II of 2015, titled: State vs. Jagdish.

12. PW-4, Smt.Parveen Saini, Advocate, stated that she was working as Notary Public since 1.12.2007 and had attested an affidavit of Jagdish Thakur (defendant) on

10.1.2014. The entries qua attestation of this affidavit are at Sr.No.20 of the Register, which had been produced in the Court. The copy of such entries in the register is Ex.PW-4/A. She stated that she had seen the original affidavit in the file of Criminal Case No.82-II of 2015. The certified copy thereof is Ex.PW-4/B. She further stated that deponent Jagdish Thakur was personally known to her. She stated that before attestation of affidavit Ex.PW-4/B she had administered oath to said Jagdish Thakur first and thereafter readover and explained the contents of the same to him. The affidavit was attested only after said Jagdish Thakur had understood and admitted the contents of the same to be true and correct.

13. PW-5 Sanjeev Kumar stated that the plaintiff is personally known to him and he was working with her in the petrol pump at Darlaghat as salesman during the period from 2007 to 2012. He also stated that he used to maintain ledger in the discharge of his duties as salesman. He stated that Jagdish Thakur (defendant) was Manager of the petrol pump. He further stated that Sanjeev Kumar, Shyam Lal and Chaman Lal were also working in the petrol pump. He deposed that he has seen the original ledger in the record of Criminal Case No.82-II of 2015. The entries at page Nos.542 and 543 are of his hands. Certified copy is Ex.PW-5/A. He also stated that the sale proceeds used to be retained by Jagdish Thakur wih him in its entirety. He further stated that nothing out of the

sale proceeds used to be given by him to any other employee. He further stated that the defendant had been utilizing the sale proceeds to repay the loan which he had raised for construction of house. He also stated that the defendant also used to share the sale proceeds with Gurdeep Singh and Ashok Saini.

14. PW-6, Ms.Champa Devi, stated that she knows the defendant Jagdish Thakur, who was manager of the plaintiff’s petrol pump; namely; Vinay Service Station, Daseharan. She stated that she used to get her truck bearing No.HP-11B-2351, filled from the plaintiff’s petrol pump. She used to make payment on account of purchase of diesel on weekly basis. She paid amount qua purchase of diesel to defendant Jagidsh, who had filed false case against her under Section 138 of the Negotiable Instruments Act at JMIC, Una.

15. PW-9, Mr.Suresh Kumar, stated that he is posted as Criminal Ahlmad, Court No.III, Una, District Una, H.P. He stated that he has brought the original record of Criminal Case No.RBT-165-II-17/13, titled as Jagdish Ram Thakur vs. Naresh Kumar, under Section of the Negotiable Instrument Act, copy whereof is placed on record as Ex.PW- 9/A. He further stated that the said copy of record has been supplied under the Right to Information Act, which is correct and true as per our record. This complaint is pending adjudication before the learned Court No.III, Una and is listed

for hearing on 15.12.2017. He also brought the record of Criminal Complaint filed under Section 138 of the Negotiable Instrument Act, bearing Cr.Case No.RBT-266-II-17/13, titled as Jagdish Ram Thakur vs. Naresh Kumar, copy whereof is Ex.PW-9/B, which has been issued under the Right to Information Act and same is correct and true as per our record. He also stated that this case is also pending adjudication before the learned Court No.III, Una and is listed for 03.01.2018. He also stated that he has also brought Criminal case file No.RBT-265-II-17/13, titled as Jagdish Ram Thakur vs. Champa Devi, copy whereof is Ex.PW-9/C, which has been issued under the Right to Information Act and the same is correct and true as per our record. The same is pending adjudication before the learned Court No.III, Una and is listed for 02.11.2017. He stated that though he has also brought Criminal Complaint No.III/II/14 RR No.10123, titled as Jagdish Ram Thakur vs. Chander Shekhar, but the same stands dismissed on 03.02.2015, copy whereof is Ex.PW-9/D, which has been issued under the Right to Information Act and the same is true and correct as per our record.

16. PW-10, HC Rajesh Pal, stated that he has been posted as Head Constable in Police Station, Darlaghat, Tehsil Arki, District Solan, H.P. He also stated that he has brought original FIR Register containing entry of FIR No.67 of 2014, registered on 31.10.2014, under Sections 420 & 408 of the

Indian Penal Code, against Jagdish Singh Thakur, copy whereof is Ex.PW-10/A, which is correct and true as per record. He also stated that he has also brought computer generated copy of Rapat Rojnamcha No.10-A, dated 11.02.2013 and 17-A, dated 26.03.2013. He also stated that he has not brought the certificate as required under Section 65-B of the Indian Evidence Act.

17. PW-12, Mr.Ravi Kumar, stated that he has been working as Assistant Manager in the State Bank of India, Navgaon Branch, Tehsil Arki, District Solan, H.P. since 5.1.2018. He stated that he has brought the requisitioned record of CC limit pertaining to M/s Vinay Service Station. Statement of accounts is exhibited as Ex.PW-12/A, which is duly certified under the Bankers’ Books Evidence Act and Section 65(b) of the Indian Evidence Act.

18. PW-13, Mr.Ram Krishan, deposed that he know the defendant Jagdish Thakur personally. He stated that he is a truck operator and earlier he was having truck bearing Nos.HP-11-3602 and HP-11-4502. Defendant Jagidsh Thakur was Manager of the plaintiff’s Service Station and he used to purchase diesel for his trucks from that petrol pump. He used to purchase diesel sometimes by cash and sometimes on credit basis. He had to pay an amount of Rs.1,72,000/- to the plaintiff service station on account of purchase of diesel made by him on different dates and he had deposited this amount in

the saving bank account of Shri Jagdish Thakur, Manager of the aforesaid plaintiff’s Service Station. The said amount was paid to Jagdish Thakur by way of two demand drafts amounting to Rs.40,000/- and Rs.20,000/- respectively and three cheques of Rs.20,000/- each, which were credited to his accounts also. The statement of accounts showing the entries of those cheques is exhibited as Ex.PW-13/A. He also stated that apart from above, also a sum of Rs.52,000/- in cash was deposited in the bank account of Jagdish, out of that amount, he has receipt of deposits showing amount of Rs.50,000/- deposited in the bank account of Jagdish, which are exhibited as Ex.PW-13/B. Photo copy of the drafts are Mark ‘A’ and ‘B’ respectively.

19. Subsequently, on 6.8.2018, statement of Mr.Rajesh Pal, PW-10, was again recorded, in which he has stated that he has brought the summoned record. He further stated that he has brought the original register of FIR No.67/14 and GD Entry No.10A, dated 11.2.2013, DD entry No.17A, dated 26.3.2013, copy whereof is Ex.PW-10/A, which is correct as per original record. He deposed that he has also brought the attested copy of the Rapat No.10A, dated 11.2.2013 and Rapat No.17A, dated 26.3.2013 alongwith CIPPA certificate under Section 65-B of the Indian Evidence Act, copies whereof are Ex.PW-10/B. Ex.PW-10/C and Ex.PW- 10/D, respectively. He also stated that Ex.PW-10/D has been

issued by MHC Khem Singh, No.74, which bears his signatures in encircle ‘A’, which signatures have been identified by him.

20. Close scrutiny of pleadings as well as evidence adduced on record by the plaintiff, which remained un- rebutted, clearly suggests that the plaintiff was allotted a petrol pump at Daseharan (Darlaghat), Tehsil Arki, District Solan, by the Indian Oil Corporation vide agreement Ex.PW- 1/A and the plaintiff, with a view to look after and manage the business affair of the petrol pump, engaged the defendant as Manager. Evidence adduced on record clearly suggests that day to day affairs of the petrol pump were being managed by the defendant in the business of the plaintiff. Though witnesses adduced on record by the plaintiff nowhere stated that they saw plaintiff handing over cheque book or signed leaves thereof to defendant Jagdish Thakur for day to day management of the petrol pump, but material available on record and careful perusal of statements having been made by the plaintiff witnesses corroborates the version put forth by the plaintiff that she had handed over cheque book, some leaves whereof were signed by the plaintiff and some were unsigned to the defendant for smooth running of the business. There is no document available on record suggestive of the fact that the defendant was in partnership with the plaintiff for running the petrol pump in question, rather documents adduced on record

clearly reveals that the defendant was rendering his services at petrol pump in the capacity of Manager and, as such, this Court has reason to presume that the cheques, which ultimately came to be misused by the defendant, were handed over to him by the plaintiff for purchase of diesel, oil and other petroleum products from the Oil Companies, as has been averred in the plaint by the plaintiff.

21. In the case at hand, plaintiff, by examining herself as well as other plaintiff witnesses, has successfully proved that the defendant misused and misappropriated the sale proceeds/money of the petrol pump. He, instead of depositing the sale proceeds in the account of plaintiff or Vinay Service Station, mis-appropriated the same by depositing in his individual/personal saving bank account. Evidence further reveals that the defendant illegally mis-appropriated the cash amount by spending the same for the construction of his personal house and also got deposited the sale proceeds of the plaintiff petrol pump into the account of one Shri Gurdeep Singh.

22. Careful perusal of affidavit Ex.PW-4/B, given by the defendant, wherein he undertook the responsibility for the consequences of dispute regarding the above cheques, clearly suggests that the defendant gave an undertaking to the effect that he would be responsible for any financial dispute of Vinay Service Station, which clearly establish the factum of misuse of

cheques handed over to him by the plaintiff. Defendant himself admitted the factum of filing criminal complaint with respect to the bounded cheques; amount claimed therein belonging to the plaintiff. The said complaints were filed by the defendant in his individual name claiming the cheque amounts to be his own. The copies of the complaint filed under section 138 before the Courts at Una are Ex.PW-9/A to Ex.PW-9/D, clearly establish that the sale proceeds of Vinay Service Station were un-authorizedly used by the defendant without there being any authority and he without any authority further lent money to others, who subsequently refused to give the money and as such defendant was compelled to initiate proceedings under Section 138 of the Negotiable Instruments Act.

23. The copy of the affidavit is Ex.PW-4/B and entry in the register of the Notary public with respect to the attestation of the said cheque by the Notary public is Ex.PW-4/A. Despite repeated requests to hand over the accounts pertaining to the business, the defendant did not adhere to the request of the plaintiff. However, in the month of March, 2014 he produced a sundry debtors list before the plaintiff and on the basis of the said list informed that a sum of Rs.30 lacs is recoverable from various persons to whom the defendant had sold the petrol/diesel on credit basis. The list of sundry debtors is Ex.PW-1/B. On inquiry made by the plaintiff from the debtors,

few of whom she could contact, disclosed that they have already paid the money to the defendant and nothing is due towards the plaintiff. The plaintiff after coming to know about the various act of omission and commission and malafide intention of the defendant, cancelled the power of attorney executed in favour of the defendant, in the month of May, 2014, vide revocation deed Ex.PW-1/C. Even after revocation of power of attorney, the defendant continued to collect the payments from various persons and utilized the same for his own purposes. Thereafter the plaintiff also made proclamation in a daily newspaper “Punjab Kesri” dated 23.7.2014, Ex.PW- 1/D, declaring therein that the defendant has nothing to do with the business of the plaintiff’s petrol pump and that no one should deal with him in connection with the affairs of the petrol pump. In the month of August, 2014, when the defendant started avoiding the plaintiff, the plaintiff got served a legal notice dated 20.8.2014 upon the defendant which is Ex.PW-1/E thereby calling upon him to hand over the account books pertaining to the business of the petrol pump and also to make good the loss caused by him to the plaintiff. The plaintiff, since the defendant had misappropriated the sale proceeds from the petrol pump also got registered a case against him, vide FIR No.67/2014, Ex.PW-10/A, with the police of Police Station Darlaghat. As the defendant had misappropriated the income/sale proceeds generated from the

petrol pump business, therefore, the entire business ran into losses, resultantly, the plaintiff was forced to surrender the petrol pump to the Indian Oil Corporation in the month of February, 2015.

24. The original counter foils of the bank pay-in-slips are Ex.PW-1/G-1 to Ex.PW-1/G-120, besides two note books qua daily sale of the petrol and diesel and its allied products, which are Ex.PW-1/H and PW-1/J. The defendant, as per the counter foils of the bank pay-in-slip, has deposited the sale proceeds in his personal/individual bank accounts and also in the account of one Shri Gurdeep Singh besides some payment were also got deposited by him in his personal home loan account, which fact is evident from the counter foils of the bank pay-in-slips Ex.PW-1/G-43, Ex.PW-1/G-54, Ex.PW-1/G- 58, Ex.PW-1/G-68, Ex.PW-1/G-82, Ex.PW-1/G-85, Ex.PW- 1/G-87, Ex.PW-1/G-105, Ex.PW-1/G-106, Ex.PW-1/G-107, Ex.PW-1/G-109, Ex.PW-1/G-110, Ex.PW-1/G-111, Ex.PW- 1/G-112, Ex.PW-1/G-113, Ex.PW-1/G-114, Ex.PW-1/G-115, Ex.PW-1/G-116, Ex.PW-1/G-117, Ex.PW-1/G-118, and Ex.PW-1/G-120. Detail of the deposits has separately been furnished by the plaintiff from the entries made in the counter foils, which are Ex.PW-1/K and Ex.PW-1/L. As per plaintiff, she never authorized the defendant to deposit the sale proceeds of the petrol pump, either in his personal bank account or into the account of anyone else.

25. The plaintiff, besides her statement on oath, also got examined PW-2 Shri Sanjay Kumar, the then sales man, who proved the entries made in the copies of the daily sales i.e. Ex.PW-1/H and PW-1/J. He has stated that the sale proceeds were handed over to the defendant. PW-5 Shri Sanjeev was also engaged as sales man on the petrol pump, who has proved the ledger entry made in the ledger account of Shri Jagdish (defendant) which is Ex.PW-5/A, who has categorically stated that the sale proceeds of the petrol pump used to be retained by Shri Jagdish Thakur with him in its entirety. Nothing out of the sale proceeds used to be given by him to them. He had been utilizing the sale proceeds to repay the loan he had raised for construction of his house. He also used to share the same in his friends circle i.e. Shri Gurdeep Singh and Ashok Saini. The statement of PW-5 Shri Sanjeev Kumar and PW-2 Shri Sanjay Kumar has corroborated the claim laid by the plaintiff to the effect that the sale proceeds which were generated from the business of the petrol pump was misappropriated by the defendant for his personal use and the same was not completely deposited in the bank account of the plaintiff.

26. PW-6 Smt.Champa and PW-13 Shri Ram Krishan have proved the fact that the defendant has already received/recovered the money due to the plaintiff on account of the sale of petrol and diesel to the persons, whose names are depicted in the debtors sundry list Ex.PW-1/B, and he has not

accounted the said recovered amount. Though, there are number of persons named in the said list, but, since the plaintiff has examined only two out of them, as named above, and both them have already paid the due amount to the defendant, therefore, the plaintiff is entitled for the entire amount paid by them to Shri Jagdish Thakur, if not the entire amount so mentioned in Ex.PW-1/B.

27. PW-13 Shri Ram Krishan has given the detail of the amount which he had paid to Shri Jagdish pertaining to the purchase of petrol and diesel from the plaintiff petrol pump. He has categorically deposed that he had paid Rs.1,72,000/- to the plaintiff Service Station on account of purchase of diesel. The said amount was deposited by him in the saving bank account of Shri Jagdish Thakur, defendant/Manager of the plaintiff. The statement of account showing the entries of cheques paid to the account of Shri Jagdish Thakur is Ex.PW-13/A. A sum of Rs.52,000/- was deposited by him by way of cash in the bank account of Shri Jagdish. He has also produced the bank deposit receipt of Rs.50,000/- which is Ex.PW-13/B.

28. By way of suit at hand plaintiff has laid claim for recovery of Rs.52,63,864/- against the defendant, which amount has been calculated as per the accounts and details alleged to have been collected by the plaintiff at the time of handing over the possession of the petrol pump to the Indian

Oil Corporation including the amount mentioned in the list of the sundry debtors. As per the entries and details mentioned in the sale books Ex.PW-1/H and PW-1/J, during the period 19.7.2013 to 5.10.2013, the defendant had done business of Rs.53,92,716/- i.e. he received cash of Rs.53,92,716/- and out of this amount, he paid Rs.35,36,600/- to the banks etc. being expenses of the petrol pump. Though the defendant has shown expenses of Rs.7,00,328/-, but there is no record with regard to the same. Even after deducting aforesaid amount, the defendant earned net profit of Rs.11,55,788/- from the petrol pump during the period 19.7.2013 to 5.10.2013, which fact is evident from the daily sales note book Ex.PW-1/H and PW- 1/J. Bare perusal of aforesaid documents clearly suggests that the defendant did not deposit this amount into the bank account of the plaintiff and misappropriated the same.

29. Similarly, evidence collected on record by the plaintiff reveals that the defendant unauthorizedly used a sum of Rs.2,35,455/- & Rs.4,55,000/- (Ex.PW-9/A to Ex.PW-9/C) respectively by filing criminal complaints against the different persons under Section 138 of NIA before the Courts at Una with respect to the dishonoured cheques, amount claimed wherein belonged to the plaintiff. The said complaints were filed by the defendant in his individual capacity claiming the cheque amounts to be his own.

30. The defendant illegally got deposited a sum of Rs.2,24,600/- in his personal bank account maintained in SBOP Navgaon during the period from 6.6.2012 to 4.6.2013. He also got deposited the sale proceeds of the plaintiff petrol pump of Rs.4,37,100/- into the account of one Shri Gurdeep Singh during the period 11.5.2012 to 13.9.2012, as is evident from counter foils, details whereof is given in Ex.PW-1/K & Ex.PW-1/L.

31. Hence, it can safely be concluded that the defendant exceeded the power given to him in the power of attorney executed in his favour by the plaintiff and also made embezzlement in the account books of the plaintiff and thereafter deliberately misappropriated, misused and mis- utilized the sale proceeds of the plaintiff’s petrol pump and, as such, he is liable to pay a sum of Rs.26,79,843/- (i.e. Rs.2,24,600/- deposited by the defendant in his own account, Rs.4,37,000/- deposited by the defendant in the account of his friend Mr.Gurdeep Singh, Rs.11,55,788/- profit earned from the petrol pump and embezzled by the defendant during the period 19.7.2013 to 5.10.2013, as mentioned in daily sale note books Ex.PW-1/H and Ex.PW-1/J, Rs.1,72,000/- deposited by the defendant in his own account, Rs.2,35,455/- & Rs.4,55,000/- received by the defendant against the cheques issued by the customers against whom criminal complaints under Section 138 of the NIA were filed) alongwith interest @ 18% per annum from the date of filing of the suit till its realization to the plaintiff alongwith costs of the suit. The suit is decreed in favour of the plaintiff. A decree sheet be prepared, accordingly.

31st December, 2018

(Sandeep Sharma) (aks)

Judge.