Bangalore District Court
M/S.Hdfc Bank Ltd vs Mudabir Khan A on 17 March, 2017
IN THE COURT OF THE XXVI ADDL.CHIEF
METROPOLITON MAGISTRATE, BANGALORE CITY
Dated this the 17th day of March 2017
:PRESENT:
SMT.SHEILA B.M. M.Com. LL.M.
XXVI Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C
Case No. : C.C No.879/ 2016
Complainant : M/s.HDFC Bank Ltd
Branch Offices At:
3rd floor, B-Wing, Golden Towers
Old Airport Road,
Kodihalli,
Bangalore - 560017
Represented by its
Legal Officer
Patti Manjunath
(By Sri.JS - Adv.)
Accused : Mudabir Khan A
s/o. Arifulla Khan
No.70, 1st Floor,
7th Cross New,
Gurapanna Palya,
Bangalore - 560 029
(By Sri. SGM - Adv.)
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is acquitted
Date of Order : 17.03.2017
2 CC No. 879 of 2016
The complainant has filed this complaint against the
Accused for the offence punishable u/s 138 of Negotiable
Instruments Act.
2. The Complainant has stated that the accused had
approached for light commercial vehicle loan and he was
sanctioned the said loan. The accused had agreed to repay the
loan in equated monthly Installments. Under the contract a sum
of Rs.80,220/- was due and payable by the accused. The
accused issued cheque dated 13.11.2015 for Rs.80,200/-. When
the said cheque was presented it was dishonoured with "Funds
insufficient" on 16.11.2015. The legal notice was issued on
28.11.2015. The Legal notice was returned on 10.12.2015. It is
stated that the accused had failed to make the payment within
15 days of receipt of the legal notice. Hence the complaint.
3. On presentation of the complaint, cognizance and
statement of the Complainant was recorded and case was
ordered to register against the accused for the offence
punishable u/s 138 of Negotiable Instruments Act. Notice was
sent to the accused.
3 CC No. 879 of 2016
4. The accused appeared before the court through his
counsel and was enlarged on bail. Copies of the papers were
furnished to him as required u/s 207 of Cr.P.C. The summons
and the substance of the accusation for the offence punishable
u/s 138 of Negotiable Instruments Act was read over and
explained to the accused. The accused pleaded not guilty and
claimed trial.
5. The Complainant has examined its Legal Officer as PW1
and got marked Ex-P1 to P17. After closing the Complainant
side, the statement of the accused u/s 313 of Cr.P.C. was
recorded and the accused has denied the incriminating evidence
against him. Accused examined himself as DW1.
6. Heard arguments.
7. The points that arise for consideration are as under:
8. The points that arise for consideration are as under:
1) Whether the accused proves that, cheque
bearing No.699264 dated: 13.11.2015 was
not issued in discharge of any legally
4 CC No. 879 of 2016
recoverable debt in favour of the
Complainant ?
2) Whether the complaint is maintainable?
3) What order?
9. My findings on the above points are as under:
Point No.1: In the Negative,
Point No.2: In the Negative,
Point No.3: As per the final order for the following:
REASONS
POINT NO.1:
10. It is undisputed fact that Ex-P2 cheque pertain to the
account of the accused and when the said cheque was presented
it has been dishonoured as "Funds insufficient" in the account of
the accused.
11. Once the cheque relates to the accused and his
signature on the said cheque is proved an initial presumption as
contemplated u/s. 138 of Negotiable Instruments Act has to be
raised by the court in favour of the Complainant. Sec. 139 of the
Negotiable Instrument Act contemplates that it shall be
5 CC No. 879 of 2016
presumed unless contrary is proved that the holder of the
cheque received the cheque of the nature referred to in the
Sec.138 for the discharge of the whole or in part any debt or
liability. The presumption referred to u/s 138 of Negotiable
Instruments Act is mandatory presumption and in general
presumption. But the accused is entitled to rebut the said
presumption. What is required to be established by the accused
in order to rebut the presumption is different from each case
under given circumstances. But the fact remains that mere
plausible explanation is not expected from the accused and it
must be more than plausible explanation by way of rebuttal
evidence. In other words the defence raised by way of rebuttal
evidence must be probable and capable of being accepted by the
court.
12. The accused has stated that at the time of availing the
loan the Complainant had taken from him 9 signed blank
cheques. In support of his contention he has produced cheque
book record slip and had stated that cheque number 699263 to
699269 blank cheques were given and also had given cheque
6 CC No. 879 of 2016
bearing No.699261 and 699262 for the purpose of the availing
the loan to the Complainant. The cheque book record slip has
been marked as Ex-D1(a). The Complainant has produced loan
application as Ex-P10 and loan agreement as Ex-P11. Ex-P11
contains post dated cheque acknowledgement letter in which it is
mentioned that the Complainant has received filled 7 cheques.
Ex-P2 cheque is bearing No.699264. The said cheque is one of
the undated cheque given by the accused for an amount of
Rs.80,220/-. So from Ex-P11 document it is clear that Ex-P2
cheque was security cheque given by the accused at the time of
availing the loan.
3. The accused has stated that the about one year back the
Complainant had seized the vehicle for non payment of the
Installment. The vehicle has been sold by the Complainant and
when he asked for the payment of balance amount after
deducting the loan amount the Complainant foisted the false
case against him. During cross-examination PW1 pleads
ignorance as to when the accused has surrendered the vehicle.
The Complainant has not stated nor produced documents as to
7 CC No. 879 of 2016
when the vehicle was seized. It is elicited from PW1 that the
vehicle was sold on 25.02.2016 for Rs.6,76,000/-. PW1 admits
that he has not produced any document with regard to the sale
of the vehicle nor has issued post sale notice to the accused.
14. In N. Ranjangan vs. Centurian Bank Ltd. 2011 (1)
JCC (NI) 26, the Madras High Court had relied upon the Kerala
High Court decision reported in Sudha Beevi vs. State of Kerala
has state in para 13 of the judgment
13. Considering the facts and
circumstances of the case, this court is of the
view that where it is a hire purchase
agreement or purchase on the basis of
hypothecation, the same is laid down by the
Kerala High Court based on the following
principles:
(i) The post dated cheques issued by the
hirer were supported by consideration at the
time when they were issued, they had
ceased to be so when the vehicle was
8 CC No. 879 of 2016
repossessed. The consideration has failed
subsequently.
(ii).........
(iii) As per Section 138 of Negotiable
Instruments Act, in order to attract the penal
provision, the "debt or other liability" must be
"legally enforceable debt or liability". If the
negotiable instrument is not supported by
consideration, there is no question of the
provisions of Section 138 of the Act being
attracted.
15. In view of the above decision as Complainant had
exercised the option of seizure of the vehicle, the post-dated
cheques obtained from the accused cannot be presented for
encashment after the seizure. The Complainant has to take
recourse to other legal remedies for recovery of the balance
amount. The account statement Ex-P7 discloses that the status
of loan is closed. The Complainant had suppressed the fact with
regard to seizure of the vehicle and sale of the vehicle. As a
Complainant has not discloses the date of the seizure of the
vehicle. The accused can take the benefit of the decision that as
9 CC No. 879 of 2016
on the date the vehicle was repossessed Ex-P2 was not
supported by consideration.
16. The Complainant has stated that towards the payment
of the debt the accused had issued cheque dated 13.11.2015 for
Rs.80,220/- as per Ex-P2. As already stated Ex-P2 cheque is
one of the security cheques which was already in the hand of the
Complainant and has not been issued by the accused towards
repayment of the amount due.
17. In case a cheque is taken by the lender from the
borrower as security towards repayment of the loan advance by
the former to later, such cheque cannot be said to have been
issued by the borrower to the lender towards discharge of
existing debt unless there is agreement between the lender and
the borrower that in event of failure on the part of borrower to
repay the loan amount on or before the specified date the lender
would be entitle to present the said cheque to the bank for its
encashment. In the absence of such an agreement, in order to
enforce the liability of the borrower to repay the loan amount,
10 CC No. 879 of 2016
the lender has to demand repayment of the loan from the
borrower by issuing him notice in writing or by making oral
demand, duly intimating the borrower that the loan amount
towards the repayment of loan of which the cheque was given by
him (borrower) to the lender as security, is not payed as agreed,
the said cheque will be enchased by him by presenting it to the
bank. If the borrower does not repay the loan amount to the
lender despite such demand being made against him by the
lender then only the lender would become entitle to present the
said cheque to the bank for its encashment. In the present case,
the evidence of the Complainant does not disclose that he has
issued the notice before presenting the cheque for encashment.
Since the cheque is issued for security or any other purpose the
same would not come within the purview of sec 138 of the act as
it has not been issued in discharge of the debt as held the
Hon'ble Supreme Court in AIR 2006 SC 3366.
18. The case put forward by the accused that the cheque
was not given for the discharge of the debt appears to be
probable and convincing. The presumption u/s 118 and 139 of
11 CC No. 879 of 2016
act would stand rebutted. In view of the above discussion point
no.2 is answered in the negative.
POINT NO. 2
19. In the complaint it is mentioned that the Complainant
is represented by Legal Manager and copy of the Board
Resolution is enclosed. The Complainant has not produced the
Board Resolution. The zerox copy of resolution has been
produced and it has not been marked. Our Hon'ble High Court
in RSA No.1344/2010 has held,
at para 7 of the judgment page 9,
"the xerox copy cannot be secondary evidence in
the absence of the plaintiff establishing the ground
u/s 65 of the Evidence Act. Therefore such
documents which is unmarked and is the xerox
copy cannot be looked into for any purposes".
20. The said decision applies to the case on hand. The
xerox copy of the resolution cannot be looked into. The
Complainant has failed to prove that authority was given to
Mr.Dasharath Kanth Pondhe to file the complaint.
12 CC No. 879 of 2016
21. During the pendency of the case the Legal Manager
Mr.Dasharathkanth Ponde was substituted by Patti Manjunath,
POA holder of the Complainant. The said Patti Manjunath has
deposed that he is Legal Officer of the Complainant and has
produced the Special Power of Attorney as per Ex-P9.
22. Ex-P9 discloses that it has been executed by Hemanth
M Revankar, POA holder of M/s.Atlas Documentary Facilitators
Pvt. Ltd. on 06.08.2016. .
23. Let to examine the POA Ex-P9. In Ex-P9 it is mentioned
that HDFC Bank represented by its POA holder Mr.Rajesh
Kumar had appointed M/s.Atlas Documentary Facilitators Pvt.
Ltd. by virtue of POA dated 03.02.2016 to be its true and lawful
attorney to do certain acts deeds and thing.
24. The recital in Ex-P9 contains whereas,
"the said HDFC vide its POA dated 14.03.2014
herein referred to as POA had appointed
M/s.Atlas Documentary Facilitators Pvt. Ltd. to
act as attorney of the bank.......till
30.10.2015.........."
13 CC No. 879 of 2016
And whereas,
"the M/s.Atlas Documentary Facilitators
Pvt. Ltd. by virtue of the power conferred by
HDFC Bank vide POA and vide its Board
Resolution dated 23.12.2011 has authorized
Revankar head HR to appoint one or more
attorneys to do certain acts, deeds and things"
25. From the above recital it is clear that the POA earlier
given by HDFC Bank to M/s.Atlas Documentary Facilitators Pvt.
Ltd. had expired on 31.10.2015. The delegation of power made
by Hemanth Revankara, Head HR is by virtue of POA and earlier
Board Resolution dated 23.12.2011. It is specifically mentioned
that POA dated 14.03.2014 is referred to as POA. The said POA
has expired on 30.10.2015. It is not mentioned under which
power of authority HDFC had given the power to re-delegate
powers. The Complainant has also not produced the POA dated
3rd February 2016 executed by HDFC in favour of M/s.Atlas
Documentary Facilitators Pvt. Ltd. If POA was produced it
would have disclosed whether M/s.Atlas Documentary
Facilitators Pvt. Ltd. can re-delegate the powers.
14 CC No. 879 of 2016
26. In 2013 AIR SCW 6807 A C Narayana vs. State of
Maharashtra our the Hon'ble SC has held,
"Functions under general POA cannot be delegated
to another person without specific permission".
27. The Complainant ought to have produced POA where
delegation of power is given to M/s.Atlas Documentary
Facilitators Pvt. Ltd. having not done so the power executed by
M/s. Atlas Documentary Facilitators Pvt. Ltd. in favour of PW1 is
not valid.
28. As the complaint has been filed by the Complainant
and evidence also has been given without proper authorization
the Complaint is bad in law and is not maintainable. PW1 has
also not produced any documents to show that he is the legal
manager of the Complainant. Hence the point for consideration
is answered in the negative.
15 CC No. 879 of 2016
POINT No.3
29. In view of the negative findings on point 1 and 2 the
Complainant is not entitled for the relief sought for. In the result
I proceed to pass the following:
ORDER
Acting u/s 255(1) of Cr.P.C., the accused is acquitted for the offence u/s 138 of NI Act.
Bail bond shall be in force for the period of 6 months as provided u/s 437A Cr.P.C. (Typed directly on computer to my dictation by the stenographer in the chamber, corrected and then pronounced by me in the open court on this the 17th March day of 2017) (SHEILA B.M.) XXVI ACMM, Bangalore City.
ANNEXURE Witnesses examined for the Complainant:
PW.1 Patti Manjunath Witness examined for the accused:
DW1 Mudaveer Khan List of Documents marked for the Complainant:
Ex. P1 Special Power of Attorney Ex. P2 Cheque.16 CC No. 879 of 2016
Ex. P2(a) Signature of the accused on the cheque.
Ex. P3 Endorsement. Ex. P4 Notice. Ex. P5 RPAD receipt. Ex. P6 Returned RPAD cover (opened in open court)
Ex. P6(a) Notice inside the cover. Ex. P7 Certificate along with Account Statement.
Ex. P8 Complaint. Ex. P9 Power of Attorney. Ex. P10 Loan application. Ex. P11 Loan agreement. Ex. P12 B Register extract. Ex. P13 Pass book of accused in Vijay Bank. Ex. P14 Driving License. Ex. P15 Voter's ID card. Ex. P16 PAN Card. Ex. P17 Gas connection.
List of Documents marked for the accused:
Ex. D1 Cheque book
Ex. D1a relevant portion of the record slip
XXVI ACMM, Bangalore.