Delhi District Court
Complainant vs . on 9 August, 2011
IN THE COURT OF SH. VIPIN KHARB
METROPOLITAN MAGISTRATE, DWARKA COURTS,
NEW DELHI
Case No. : 25776/09
Unique Case ID No. : ..............................
Barclays Bank
EROS Corporate Tower
Nehru Place, Delhi 110019
... Complainant.
Vs.
Ravinder Kumar Jain
H. No 9/1954, Gali no. 2,
Kailash Nagar, Near Jain Mandir
Delhi 110031 ... Accused.
Date of Institution : 31.01.2009
Date of Reserving Judgment : 16.07.2011
Date of Judgment : 09.08.2011
:: JUDGMENT ::
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, I shall decide the complaint Case No. : 25776/09 1 / 12 case U/s 138 Negotiable Instrument Act 1881 (as amended upto date) filed by the complainant Barclays Bank Ltd. through its representative Sh. Ankush Gupta against the accused Sh. Ravinder Kumar Jain S/o Late Sh. Attar Sen Jain.
2. The facts in brief necessary for the disposal of the present case are that as per the allegations in the complaint, the accused has taken a loan and in discharge of his legal liability has issued a cheque bearing no. 877694 dated 04.12.2008 for a sum of Rs. 30,468/ drawn on Central Bank, Kashmiri Gate, Delhi in favour of the complainant. However, on presentation of the same it was dishonoured vide cheque returning memo dated 10.12.2008 with remarks "Account Closed". The complainant has thereafter given a legal notice of demand dated 24.12.2008 to the accused which was sent by speed post on 27.12.2008 thereby calling upon the accused to make the payment of the cheque amount. It is alleged that the accused has failed to pay any sum in response to the legal notice of demand. As a result of which the complainant has filed the instant complaint for prosecution of the accused U/s 138 Negotiable Instrument Act.
Case No. : 25776/09 2 / 12
3. After the complaint was filed, the Authorized Representative of the complainant led his presummoning evidence by way of an affidavit and after hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 07.03.2009 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/s 251 Cr.P.C. Dated 07.07.2009 was given to the accused to which he pleaded not guilty and claimed trial.
4. In order to prove the case, Sh. Vaibhav Dubey, got himself substituted as new AR of the complainant for the purpose of this case in place of earlier AR of complainant. Authorized Representative of the complainant got himself examined as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence which is Ex. CW1/2. He got exhibited original cheque before the court as Ex. CW1/B and the cheque returning memo as Ex. CW1/C, the legal notice of demand dated 24.12.2008 as Ex. CW1/D and speed post receipt vide which the aforesaid notice was sent as Ex. CW1/E. Sh. Vaibhav Dubey was crossexamined by Case No. : 25776/09 3 / 12 Ld. Counsel for the accused. Thereafter, the complaint evidence was closed at request.
5. After that the statement of accused was recorded U/s 313 Cr.P.C r/w 281 Cr.PC in which all the incriminating evidence along with exhibited documents were put to the accused Sh. Ravinder Kumar Jain in which he stated that he had taken a business loan of Rs. 5 lacs from the complainant bank. He has also stated that the cheque in question was delivered in blank as a security before taking the aforesaid loan. Accused submitted that he had not received the legal notice of demand, therefore, he did not paid the cheque amount. Thereafter the case was fixed for defence evidence.
6. Ld. counsel for the accused has moved an application U/s 315 Cr. PC for producing the accused as a defence witness. The aforesaid application was allowed and the accused deposed as DW1. DW1 was also cross examined by Ld. counsel for complainant. No other defence evidence was produced on behalf of the accused. Thereafter, defence evidence was closed at request of Ld. counsel for the accused and the case was fixed for final arguments.
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Final arguments were lead by both parties. Ld. counsel for accused has filed some case law in support of his case, which were taken on record.
7. Before proceeding further let us go through the relevant provisions of law. Section 138 of the Negotiable Instruments Act provides that: Dishonour of cheque for insufficiency, etc, of funds in the account: Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in while or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer Case No. : 25776/09 5 / 12 of the cheque, within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
8. Before going into the question whether the complainant has proved against the accused all the necessary ingredients of the offence U/s 138 Negotiable Instruments Act, 1881, another important issue raised by the accused in final arguments and in the cross examination of the AR of the complainant needs to be addressed first. The accused has raised the issue that AR of the complainant is not the authorized person to represent the complainant as the power of attorney of the AR of the complainant Ex.CWA/1 was not properly executed because the power of attorney was notarized on 04.10.2010 and it was executed by Ramanathan Gopalakrishnan on 05.10.2010 i.e. one day after notarization of power of attorney. Ld. counsel for the accused further submitted that he has cross examined the complainant witness Case No. : 25776/09 6 / 12 on this point and the complainant witness has admitted in his cross examination that power of attorney Ex.CWA/1 was notarized on 04.10.2010 and it was executed on 05.10.2010. It is further submitted by the Ld. counsel for accused that he further gave suggestion to the AR of the complainant that the power of attorney dated 05.10.2010 i.e. Ex.CWA/1 is a fabricated document.
Perusal of the case file reveals that the power of attorney executed in the favour of authorized representative Sh. Vaibhav Dubey which is Ex.CWA/1 was notarized on 04.10.2010. Further at page 3 of the power of attorney Ex.CWA/1 it is written that "In witness whereof the said Mr. Ramanathan Gopalakrishnan has put his hand this 05th day of October 2010." Hence, it was executed on 05.10.2010 i.e. on day after the notarization of the power of attorney.
Notarization means authentication of execution of document. In practice Notary Public notarizes the document only if they are executed in his presence, so that he can authenticate the said execution. If the notarization is done properly then presumption of section 85 of Indian Evidence Act arises.
Case No. : 25776/09 7 / 12 Section 85 of Indian Evidence Act says that : The Court shall presume that every document purporting to be power of attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice Consul, or representative of the Central Government, was so executed and authenticated.
As per section 85 of Indian Evidence Act, if the document is notarized properly, the presumption as to correctness of the execution of the document can be raised. But in this case the document i.e. power of attorney, Ex.CWA/1, was not notarized properly because for proper notarization the power of attorney should have been executed before the Notary Public but in this case it was notarized on 04.10.2010 but date of execution mentioned on it is 05.10.2010, therefore, either the document was first notarized by the Public Notary and then it was executed or it is a fake document. Therefore, the presumption of section 85 does not hold ground in the above said facts. As the power of attorney is not executed properly, therefore, AR of the complainant in whose favour the power of attorney Ex.CWA/1 was executed is not a proper representative of the complainant. As Case No. : 25776/09 8 / 12 Sh. Vaibhav Dubey who has lead evidence on behalf of the complainant in this case was not a proper representative of the complainant, therefore, evidence lead by him on behalf of the complainant cannot be read.
The above said fact came to the knowledge of the complainant witness on 21.02.2011 i.e day he was cross examined and till date, no proper power of attorney on behalf of the complainant has been filed in this case. In these circumstances, it is clear that power of attorney Ex.CWA/1 is not a proper power of attorney as the same was not executed properly, therefore, the complainant witness has not authority to appear and to pursue this complaint on behalf of the complainant and there is no proper presentation on behalf of the complainant.
The Hon'ble Supreme Court of India in "M.M.T.C & Anr. Vs. Medchi Chemicals & Pharma Pvt. Ltd. & Anr." AIR 2002 Supreme Court 182 in para no. 12 has held that : "In the case of Associated Company Limited Vs. Kishavananad reported in (1998) 1 SCC 687, it has been held by this Court that the complainant has to be a corporeal person who is capable of making a physical appearance in the Court. It has been held Case No. : 25776/09 9 / 12 that if a complaint is made in the name of a incorporeal persona (like a company or corporation) it is necessary that a natural person represents such juristic person in the Court. It is held that the Court looks upon he natural person to be the complainant for all practical purposes. It is the de jure complainant, and it must necessarily associate a human being as de facto complaint to represent the former in Court proceedings. It has further been held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when diferent persons can represent the company. It has been held that it is open to the de jure complainant company to seek permission of the Court for sending any other person to represent the company in the Court. Thus even presuming, that initially there was no authority, still the company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company". The complaints could thus not have been quashed on this ground"
In view of the above said judgment, it is clear that the complainant can rectify the defect subsequently, even if, it is Case No. : 25776/09 10 / 12 represented by some unauthorized person at some stage of the trial of the complaint. The natural corollary of the above said judgment of the Hon'ble Supreme Court of India is that the complainant can rectify the defect subsequently but in cases where the complainant does not do so despite opportunities then the Court has to appreciate the evidence and decide the case after taking into consideration such defects.
In the present case, there is a serious question mark over the execution of power of attorney, Ex.CWA/1. It can be safely considered that power of attorney, Ex.CWA/1, was not executed properly, therefore, no authority was executed in favour of Sh. Vaibhav Dubey to appear and lead evidence on behalf of complainant. So any evidence lead by Sh. Vaibhav Dubey cannot be considered as evidence lead on the behalf of complainant. Further, no other witness appeared on behalf of complainant.
As, no witness appeared on behalf of complainant to give evidence and evidence lead by Sh. Vaibhav Dubey cannot be considered as evidence on behalf of complainant, therefore, no evidence is brought on record on behalf of complainant against the accused.
In view of the above said discussion, it can be safely said that Case No. : 25776/09 11 / 12 no evidence is brought against the accused, hence, complainant has failed to prove the guilt of the accused. Therefore, I am of the considered opinion that the complainant has failed to prove his case
9. In view of the aforesaid discussion, I am of the considered opinion that the complainant has failed to proved his case against the accused. Accordingly, accused Sh. Ravinder Kumar Jain S/o Late Sh. Attar Sen Jain is hereby acquitted of the offence u/s 138 Negotiable Instruments Act.
File be consigned to record room after necessary compliance. Announced in the open court today i.e. 09.08.2011. (VIPIN KHARB) MM: DWARKA : 09.08.2011.
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