Delhi District Court
The Relevant Portion Of The Judgment Is ... vs . on 6 January, 2015
1
IN THE COURT OF SH. BABRU BHAN, METROPOLITAN MAGISTRATE,
(SPL. NI COURT )04 DWARKA COURT, NEW DELHI
ICICI Bank Ltd.
Vs.
Suresh Gupta
C.C. No. 719/14/10
P.S.: Dwarka U/s 138 N.I. Act
JUDGMENT
a) Date of commission of offence: 10.09.2010
b) Name of Complainant ICICI Bank Ltd. through it
authorized representative Sh.
Rajeev Verma.
c) Name of the accused and Address: Suresh Gupta Proprietor of M/s
New Gupta Threads, 1155/11,
Main Road, Govindpuri, Kalkaji,
New Delhi.
d) Offence complained of: U/s 138 N.I. Act
e) Plea of accused: Pleaded not guilty
f) Final order: Acquitted
g) Date of order: 06.01.2015
h) Date of institution of case: 18.09.2010
i) Date of decision of case: 06.01.2015
Page 1 of 8; C.C. No.719/14/10; ICICI Bank Ltd.Vs. Suresh Gupta
2
Brief facts and reasons for decision of the case:
1. The present complaint is instituted by ICICI Bank Ltd. (hereinafter 'the complainant') against Suresh Gupta (hereinafter 'the accused') alleging that the accused has availed credit / finance facility from the complainant under the a/c no.'629405036583' in the name of his proprietorship firm M/s New Gupta Threads. In discharge of his partial liability, the accused issued a cheque bearing no. 001638 dated 05.01.2010 for a sum of Rs. 2 lacs drawn on HDFC Bank Ltd., Kalkaji (Ex.CW1/3). The said cheque was presented for encashment on 09.07.2010 but same was returned unpaid for the reasons "Account closed" (Ex.CW1/4). When the complainant received the intimation of dishonor, a legal demand notice dated 26.07.2010 (Ex.CW1/5) was dispatched to the accused on 27.07.2010 {Ex.CW1/6 (colly.)}. It is alleged that the accused did not make any payment despite service of notice. Thus, the present complaint has been filed.
2. During the complainant's evidence, Sh. Rajeev Verma was examined as a sole witness, he filed his evidence by way of affidavit Ex. CW1/A. The documents filed and relied upon by the complainant have already been discussed in the preceding paragraph. Besides the above Page 2 of 8; C.C. No.719/14/10; ICICI Bank Ltd.Vs. Suresh Gupta 3 documents, the complainant also filed the power of attorney in favour of the AR Ex.CW2/A. During the cross examination, the AR for the complainant also filed the statement of account Mark 'A'.
3. During the cross examination, the CW1 deposed that he was authorized to represent the complainant bank through the document Ex.CW2/A. He denied the suggestion that para no.3 & 4 of document Ex.CW2/A did not empower him to give his evidence before the court. Witness admitted that he was not present when the power of attorney was executed in his favour by Sandeep Bakshi and Shanti Venkateshan. He denied the suggestion that power of attorney was not signed by Sandeep Bakshi and Shanti Venkateshan. He also denied the suggestion that he is not authorized to appear on behalf of the complainant bank. The witness expressed his oblivion to the fact that whether the power of attorney was executed prior to Board Resolution or subsequent thereto. He also deposed that accused was provided an overdraft facility. Under the agreement, the accused was supposed to deposit the interest charge as well as transaction charges @ 2% on monthly basis. There was no definite or agreed mode of payment of above charges. The witness failed to tell the date, month and year when the O.D. facility was availed by the accused. He denied the Page 3 of 8; C.C. No.719/14/10; ICICI Bank Ltd.Vs. Suresh Gupta 4 suggestion that statement of account Mark 'A' was forged document. He also stated that he was not aware whether any agreement was executed between the bank and the accused prior to grant of O.D. facility. The witness admitted that he had not brought the complete statement of account. He clarified the non production of complete statement of account stating that same could not be printed on account of system problem. Witness further deposed that he is not aware regarding any practice of obtaining the security cheques from the prospective borrowers. Thereafter matter was adjourned for production of original agreement of overdraft facility and complete statement of account. However, same were not produced despite given ample opportunities. Thus, opportunity was closed.
4. Thereafter, the accused was confronted with the entire incriminating evidence under the mandate of section 313 CrPC, wherein he admitted that he availed the O.D. facility for amount of Rs.2 lacs from the complainant. However, he stated that the impugned cheque was given blank signed for purpose of security and this is mentioned behind the impugned cheque also. He denied the receipt of legal demand notice. Page 4 of 8; C.C. No.719/14/10; ICICI Bank Ltd.Vs. Suresh Gupta 5
5. During the defence evidence, the accused examined himself u/s. 315 CrPC. During his statement, he deposed that he had repaid the entire amount of O.D. facility to the complainant bank. There was no legally recoverable debt or liability outstanding against him. The impugned cheque was stated to be issued for purpose of security as blank signed.
6. I have heard the arguments from the Ld. Counsels appearing on behalf of both the parties. The material on record has been carefully perused. Now, I proceed with the judgment.
7. Primarily, the accused has raised to defences. Firstly that he was not liable to pay any amount to the complainant on the date of alleged issuance of impugned cheque and secondly, the impugned cheque was issued for purpose of security.
8. Coming to the first defence of the accused. The accused was provided an overdraft facility to the limit of Rs.2 lacs. In overdraft facility, Page 5 of 8; C.C. No.719/14/10; ICICI Bank Ltd.Vs. Suresh Gupta 6 the borrower can make the transaction to the maximum limit provided. The accused denied his liability. Therefore, the complainant should have filed the complete and admissible statement of account to show all the transaction detail and actual liability of the accused. The complainant was also directed by the court to produce these documents. But despite given ample opportunities, same were not filed. When the AR for the complainant was put a specific question, he stated that same could not be printed on account of system problem. When the liability is disputed, the complainant bank being a financial institution, was bound to produce the account books to prove the actual liability.
9. At this juncture, I would like to refer the judgment passed in case of M. Vairavan v. T.M Selvaraj Crl A No. 352 of 2009, Madras High Court. The relevant portion of the judgment is reproduced here as under :
"in the instant case, the appellant/complainant is only an individual, therefore, it cannot be said that non production of his account books would affect the case under section 138 of N.I. Act, though the same is relevant in a case relating to financial companies and other institutions having books of account. The decision Page 6 of 8; C.C. No.719/14/10; ICICI Bank Ltd.Vs. Suresh Gupta 7 of this court in Murugan Financiers Vs, P.V. Perumal reported in 2005 Crl L.J. 269 ended in acquittal on account of the non production of books of accounts, sought for by the accused therein has no relevancy in this case."
10. Since the complainant failed to produce the complete statement of account and the O.D. facility agreement without any justifiable reason and despite the order of the court, thus, outstanding liability of the accused doubtful.
11. Secondly, the accused has contended that impugned cheque was issued blank signed for purpose of security. This contention of the accused is corroborated by the text written behind the impugned cheque. It says "For security purpose only". No explanation came from the complainant that why this text is written behind the impugned cheque. In absence of any explanation, it is proved that impugned cheque was issued for purpose of security purpose. It is established preposition of law that cheques issued for security do not fall within the ambit of section 138 N.I. Act. Page 7 of 8; C.C. No.719/14/10; ICICI Bank Ltd.Vs. Suresh Gupta 8
12. With the above discussions, this court concludes that liability of the accused is doubtful. Further, there is a strong probability that impugned cheque was issued at the time of sanctioning of O.D. facility for the security purpose. The benefit of doubt is given to the accused. He stands acquitted accordingly.
(Announced in the open court on 06.01.2015) This Judgment contains 8 pages.
and each paper is signed by me.
(BABRU BHAN) METROPOLITAN MAGISTRATE DWARKA COURTS /NEW DELHI Page 8 of 8; C.C. No.719/14/10; ICICI Bank Ltd.Vs. Suresh Gupta