Delhi District Court
Prabhakar Kumar Shaw vs . Hdfc Bank on 7 September, 2013
Prabhakar Kumar Shaw Vs. HDFC Bank
(Centurian Bank of Punjab Ltd)
CA NO: 64/12
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS
JUDGE-01, DWARKA COURTS, NEW DELHI
CA NO: 64/12
Sh.Prabhakar Kumar Shaw
S/o Sh. Dular Chand Shaw
R/o C-29, Sitapuri, Gali No. 3
New Delhi-110 045. ... Appellant
Versus
HDFC Bank (Centurian Bank of Punjab Ltd.)
Since amalgamated with HDFC Bank Ltd.
Express Building, Bahadur Shah Jafar Marg
New Delhi-110 002. ... Respondent
Date of institution of appeal : 01.09.2011
Date on which judgment reserved : 03.09.2013
Date on which judgment pronounced : 07.09.2013
JUDGMENT
1. Vide the present appeal, the appellant has challenged the judgment dated 28.07.2011 (hereinafter referred to as impugned judgment) of the ld.trial court vide which he was convicted u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act) and sentence order dated 04.08.2011 (hereinafter referred to as impugned sentence order) vide which he was sentenced to simple imprisonment for a period of 03 months and to CA NO: 64/12 1/10 Prabhakar Kumar Shaw Vs. HDFC Bank (Centurian Bank of Punjab Ltd) CA NO: 64/12 pay compensation of Rs.30,000/- to the respondent bank failing which appellant shall undergo further simple imprisonment for 01 month.
2. The brief facts which are relevant for deciding the present appeal are that appellant availed a personal loan from the respondent bank vide loan no. 91610596 and in partial discharge of his liability towards the respondent bank, appellant issued cheque bearing no. 484857 dated 05.12.2006 for an amount of Rs. 22,086/- which when presented for encashment returned unpaid for the reason "insufficient funds". Thereafter, a legal notice was sent to appellant to make payment. Despite service, appellant failed to make payment. Hence, a complaint u/s 138 of the NI Act was filed before the Ld.trial court.
3. The appellant was summoned u/s 138 of the NI Act. The ld.trial court after perusing the evidence led on record by appellant and respondent, came to the conclusion that appellant had issued the cheque in discharge of his liability and held him guilty for the offence u/s 138 of the NI Act vide impugned judgment and sentenced him vide impugned sentence order. Hence, the present appeal.
4. The grounds of challenge of the impugned judgment and impugned sentence order are as follows:-
a) Firstly, on the ground that appellant had never taken any loan from the respondent bank and even no document has been placed on CA NO: 64/12 2/10 Prabhakar Kumar Shaw Vs. HDFC Bank (Centurian Bank of Punjab Ltd) CA NO: 64/12 record by respondent bank showing their merger with the Centurian Bank of Punjab from whom appellant had taken the loan.
b) Secondly, on the ground that he has given the signed cheque in blank as security to the Centurian Bank of Punjab which has been misused by the respondent bank.
c) Thirdly, on the ground that no document was placed on record by respondent bank to show existence of cheque amount as liability of appellant.
d) Lastly, on the ground that no legal notice was served upon appellant.
X Accordingly, a prayer has been made to set aside the impugned judgment and impugned sentence order.
5. Notice of the appeal was issued to the respondent/complainant bank. Respondent/complainant chose not to file any reply.
6. I have heard the counsel for appellant and counsel for respondent bank. I have also summoned the trial court record and have carefully perused the same.
7. The first ground challenging the impugned judgment is that appellant had never taken any loan from the respondent bank and even no documents have been placed on record by the respondent bank showing their merger with the Centurian Bank of Punjab from whom appellant had taken the loan. The said contention of appellant is not acceptable as although it is true that CA NO: 64/12 3/10 Prabhakar Kumar Shaw Vs. HDFC Bank (Centurian Bank of Punjab Ltd) CA NO: 64/12 documents of merger between respondent and Centurian Bank of Punjab, who is the payee of the cheque in question, has not been placed on record but there is other material on record to show that merger had indeed taken place between respondent bank and Centurian Bank of Punjab. The appellant had himself placed on record payment receipt Ex.CW1/D1 issued by respondent bank having same loan account number which is admitted to be loan account number of Centurian Bank of Punjab by appellant. Therefore, this document show that after the merger, liability was taken over by HDFC Bank i.e.respondent and that is why payment against same loan account number of Centurian Bank of Punjab was being made by appellant to the respondent. Further, while being examined u/s 313 Cr.P.C. incriminating evidence regarding merger of respondent bank with Centurian Bank of Punjab was put to appellant and appellant nowhere denied that said merger has not taken place with the respondent bank. Thirdly, in the cross examination of AR of respondent bank, a suggestion has been given by appellant himself that he has repaid the loan amount to Centurian Bank of Punjab as well as to respondent bank. By way of suggestion, appellant has also admitted that merger had taken place between Centurian Bank of Punjab and respondent bank and that is why suggestion regarding payment of loan to Centurian Bank of Punjab as well as to respondent bank was given. Fourthly, even in examination in chief, appellant has admitted that he had made certain payments to respondent bank as well as to Centurian Bank of Punjab. This also proves that merger had indeed taken place with respondent bank and Centurian Bank of CA NO: 64/12 4/10 Prabhakar Kumar Shaw Vs. HDFC Bank (Centurian Bank of Punjab Ltd) CA NO: 64/12 Punjab. Lastly, even during the pendency of this appeal, appellant had settled the matter with respondent bank for Rs.1,56,000/- vide letter dated 11.10.2011 which further proves that merger had taken place between Centurian Bank of Punjab and respondent bank and entire liability was taken over by respondent bank from Centurian Bank of Punjab.
8. In the light of aforesaid discussion, I do not find any force in the contention of appellant that merger between Centurian Bank of Punjab and respondent bank has not been proved on record. Accordingly, the ld.trial court rightly held that after the merger, appellant had liability to repay the loan to the new entity i.e. respondent bank.
9. The second contention of appellant is that he had given signed cheque in question as security to the Centurian Bank of Punjab which has been misused by respondent bank. The said plea of appellant is not acceptable as it is admitted by appellant that his signatures appear on the cheque Ex.CW1/B. Secondly, it is not proved on record by the appellant by leading any cogent evidence that cheque in blank was given as security. Thirdly, it is a settled principle of law that if a person admits due execution of cheque then even if it is proved that other details in the cheque are not in the handwriting of that person then also that person is liable for the cheque amount as by giving a signed cheque, implied authority and power is given to the payee to fill other details of the cheque unless the drawer is able to show that amount filled up in the CA NO: 64/12 5/10 Prabhakar Kumar Shaw Vs. HDFC Bank (Centurian Bank of Punjab Ltd) CA NO: 64/12 cheque was beyond his liability. I am fortified in my reasoning by the judgment delivered by Hon'ble Delhi High Court in case reported as M/s.The Jammu and Kashmir Bank Vs. Abhishek Mittal, 2012(1) DCR 189 wherein it was held that a person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque has been given by him. It was further held in Para 7 as follows:--
Para 7 -- "Once issuance of the cheque has been admitted or stands proved, a presumption arises in favour of the holder of the cheque that he had received the cheque of the nature referred to under Section 138 of the NI Act for the discharge in whole or in part of any debt or any other liability. This presumption arises in favour of the holder under Section 139 of the NI Act which envisages that it shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to under Section 138 of the NI Act for discharge, in whole or in part of any debt or any other liability. Of course, this presumption is a rebuttable presumption and same can be rebutted only by the person who had drawn the cheque".
10.In the present case, no cogent evidence has been led on record by appellant to rebut the presumption u/s 139 NI Act. Even payment made to respondent bank has not been proved. Accordingly, this contention is rejected.
11.Thirdly, it was contended by the counsel for appellant that no CA NO: 64/12 6/10 Prabhakar Kumar Shaw Vs. HDFC Bank (Centurian Bank of Punjab Ltd) CA NO: 64/12 document was placed on record by respondent bank to show existence of cheque amount as liability of appellant. This contention of appellant is also not acceptable as it has come in the evidence of respondent that loan of Rs.2,68,000/- was disbursed to appellant by Centurian Bank of Punjab in 2007 which was required to be paid in equal monthly installments of Rs.7,362/- each. Taking of loan from Centurian Bank of Punjab by appellant has been admitted by him in his statement u/s 313 Cr.P.C. Therefore, there was presumption in favour of respondent bank u/s 139 of the NI Act that cheque was issued for liability. The defence of appellant was that he had paid the entire amount to Centurian Bank of Punjab as well as to respondent bank. However, no document regarding payment of entire loan has been placed on record. The receipts placed on record Ex.CW1/D1 of Rs.1300/-, Ex.CW1/D2 of Rs.3,000, Ex.DW1/1 of Rs. 2,000/-, Ex.DW1/2 of Rs.1,000/-, Ex.DW1/3 of Rs.1,400/-, Ex.DW1/7 of Rs.3,000/- and Ex.DW1/8 of Rs.5,000/- only proves that part of the loan amount has been repaid by appellant. Further, all the aforementioned payment receipts are prior to issuance of cheque Ex.CW1/B which is dated 05.12.2008. Appellant has not placed on record his saving bank account passbook to show that payment of Rs.7,362/- towards equal monthly installments was being regularly deducted from his saving bank account. Therefore,. appellant has miserably failed to rebut the presumption that cheque in question has not been issued in discharge of his liability.
12. Accordingly, the ld.trial court rightly held that without placing on CA NO: 64/12 7/10 Prabhakar Kumar Shaw Vs. HDFC Bank (Centurian Bank of Punjab Ltd) CA NO: 64/12 record any material by appellant, it is not sufficient to rebut the presumption and rightly came to the conclusion that cheque in question was issued by appellant in discharge of his legal debt and liability.
13.Lastly, it was contended by appellant that no legal notice was served upon him and accordingly, he cannot be held guilty for offence u/s 138 of the NI Act. This contention of appellant is also not acceptable as legal notice Ex.CW1/D has been sent through registered post vide receipt Ex.CW1/E at C-29, Sitapuri, Gali No.3, Delhi i.e.the address of appellant. Appellant has admitted in his cross examination that aforementioned address is the correct address. Therefore, in the light of notice being dispatched through registered post at the correct address, presumption arises u/s 27 of the General Clauses Act, 1897 that legal notice was duly served upon appellant. However, said presumption is rebuttable but no evidence has been led on record by appellant to show that despite sending of notice by registered post, the same was not received by him. Therefore, ld.trial court rightly came to the conclusion after relying upon section 27 of the General Clauses Act, 1897 and various judicial pronouncements that legal notice was duly served upon the appellant.
14.In the light of above discussion, none of the grounds raised by the appellant make out a case to interfere in the impugned judgment convicting the appellant. Accordingly, appeal against impugned judgment is hereby dismissed.
CA NO: 64/12 8/10Prabhakar Kumar Shaw Vs. HDFC Bank (Centurian Bank of Punjab Ltd) CA NO: 64/12
15.During the course of arguments, counsel for appellant had submitted that a lenient view be taken on the point of sentence as he is willing to pay compensation awarded by the ld.trial court.
16.Therefore, having regard to the cheque amount in question and to the fact that this is the first offence of appellant, and by showing willingness to pay compensation awarded by the ld.trial court, appellant has made out a case for taking a lenient view. In the facts, impugned sentence order awarding 03 months simple imprisonment is set aside. The appellant is given benefit of probation for a period of 03 months subject to his filing personal bond in the sum of Rs.10,000/- with one surety of the like amount within a week from today before the ld.trial court with the further condition that he shall remain under the supervision of Probation Officer, Dwarka Courts for a period of 03 months and shall report before the Probation Officer once every month
17.However, part of impugned sentence order with regard to direction to pay compensation of Rs 30,000/- to respondent bank is upheld.
18.In the light of above discussion, the appeal filed by appellant against the impugned judgment dated 28.07.2011 is dismissed and conviction u/s 138 NI Act is upheld. However, appeal against impugned sentence order is partly allowed and part of impugned sentence order awarding sentence of 03 months Simple Imprisonment is set aside. Appellant is given the benefit of CA NO: 64/12 9/10 Prabhakar Kumar Shaw Vs. HDFC Bank (Centurian Bank of Punjab Ltd) CA NO: 64/12 probation for a period of 03 months. However, impugned sentence order awarding compensation of Rs.30,000/- is upheld. Accordingly, the appeal stands disposed of.
19.TCR be sent back alongwith a copy of judgment. Copy of judgment be also sent to Probation Officer, Dwarka Courts for information and necessary action. Appeal file be consigned to record room.
Announced in the open court (Vikas Dhull)
Dated: 07.09.2013 ASJ-01/Dwarka Courts
New Delhi
CA NO: 64/12 10/10