Delhi District Court
Hdfc Bank Ltd. vs . Surjit Singh on 30 July, 2012
1
IN THE COURT OF SHRI KISHOR KUMAR,
METROPOLITAN MAGISTRATE02 (MCD), DWARKA
COURTS, NEW DELHI
In Re: C.C No. 134/11
U/s 138 Negotiable Instrument Act.
1. C.C No. 134/11
2. Date of institution 12.07.2011
3. Name of the complainant HDFC Bank, registered office
at Senapati Bapat Marg,Lower
Parel, (West)Mumbai400013.
Branch office at 2nd
floor,Express building, Bhadur
Shah Zafar Marg, ITO, New
Delhi.
4. Name of the accused and Surjit Singh s/o Late Sh.Deva
his parentage and residence: Singh,r/o 20B/ 105 AB Tilak
Nagar,Sardarji Godhiwalan, New
Delhi 110018
5. Date when judgement was Not reserved.
reserved
6. Date when Judgment 30.07.12
was pronounced
C.C No. 134/11
HDFC BANK LTD. VS. Surjit singh
2
7. Offence Complained of : U/s 138 N.I.Act.
8.
Plea of accused He pleaded not guilty
& claimed trial
9. Final Judgment Acquitted.
JUDGEMENT
1. The complainant bank i.e HDFC Bank has filed the present complaint against accused Surjit Singh u/s 138 of Negotiable Instrument Act (hereinafter referred as an Act) on the allegations that accused approached the complainant bank for loan. The loan was sanctioned to the accused vide loan agreement No.91513423. It is further alleged in the complaint that accused in discharge of his debt/liability had issued cheque bearing No.340301 dated 10.3.2011 for Rs. 36,477/ drawn on UTI Bank Ltd. J3, Vikaspuri, New Delhi in favour of complainant bank. The aforesaid cheque was presented to the banker of the accused for encashment but the same was returned unpaid with the remarks C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh 3 "INSUFFICIENT FUNDS" vide cheque return memo dated 07.05.11. It is also alleged that the complainant bank had sent a legal demand notice dated 25.5.11 to the accused demanding amount of the dishonored cheque. The notice had been sent through registered AD/Speed Post/UPC/Courier on 28.5.11. Despite service of said legal notice, the accused failed to make the payment of the dishonored cheque within the mandatory period of 15 days from its receipt. Hence, the present complaint having been filed against the accused by the complainant bank u/s 138 of the Act for summoning, prosecuting and punishing the accused in accordance with law.
2. AR for the complainant tendered evidence at pre summoning stage by way of affidavit in evidence Ex.CW1/A. The complainant has relied upon documents and exhibitted the power of attorney of AR for the complainant as CW1/A1. Cheque bearing No.340301 dated 10.3.2011 for Rs.36,477/ drawn on UTI Bank Ltd.J3, C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh 4 Vikaspuri, New Delhi has been exhibitted as CW1/B. The cheque return memo dated 07.05.11 is Ex.CW1/C. The legal demand notice dated 25.5.11 is Ex.CW1/D. The registered AD and courier receipt is Ex.CW1/E and Ex.CW1/E1, statement of account is Ex.CW1/X, copy of loan agreement is Ex.CW1/Y, copy of application form is Ex.CW1/Z
3. Finding prima facie case having been made out against the accused on the basis of allegations contained in the complaint and the documents brought and proved on record and affidavits in evidence, the accused was summoned.
4. Accused appeared and had chosen to contest the present challan. Though, initially, he was trying to settle the present complaint but due to some reasons, settlement could not be materialized between the parties. Accordingly, notice u/s 251 Cr.P.C for the offence punishable u/s 138 of N.I Act C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh 5 was framed against the accused to which he pleaded not guilty and claimed trial. The accused disclosed his defence that he had given blank cheque signed by him as security. He had issued 78 blank signed cheques to the Centurion Bank of Punjab Ltd.. His payment was going to the bank through ECS. The said cheque was not issued by him for Rs.36,477/, this cheque is not a regular payment of premium cheque, the cheque was issued as a security cheque which was blank.
5. Accused has cross examined CW1/AR for the complainant. No other witness examined by the complainant. CE was closed. Thereafter, statement of the accused has been recorded u/s 313 Cr.P.C. The accused has averred that the complainant was not supposed to file the present case as this cheque in question is a security cheque which was a signed blank cheque. It is further averred that the complainant has misguided the court by omission and suppression of facts. The accused had chosen to lead defence evidence.
C.C No. 134/11HDFC BANK LTD. VS. Surjit singh 6
6. Vide order dated 6.7.12, DE was closed due to non appearance of the accused as well as his counsel despite number of opportunities, given. Thereafter on 09.07.12, an application u/s 311 Cr.P.C was moved on behalf of the accused for recalling the accused in his defence and vide order dated 16.7.12, the said application was allowed subject to cost of Rs.500/, to be paid to the counsel for the complainant. Accused examined himself in his defence as DW1 u/s 315 Cr.P.C as his own witness. He deposed on oath that he had not taken loan from the complainant bank (HDFC). He had taken loan from Centurian Bank of Punjab in the year, 2007. At the time of sanction of the loan, he had given 12 blank signed cheques as security. The serial number of those cheques was from 340301 to 340312. He proved the counterfoil of cheque book as Ex.DW1/1. He further submitted that the names appearing on page A of Ex.DW1/1 of Meenu and Amar were the agents of the Centurian Bank of Punjab. One Sh.Amar had come to collect the security cheques on 1.5.07. He had taken loan to C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh 7 the tune of Rs.4,97,144/ (the payment of Rs. 4 lac has been made to G.E Money and rest to him). The agents of said bank got the loan agreement signed at his home at Tilak Nagar. The cheques were given at the time of execution of loan agreement. The bank had not issued any receipt against receiving the security cheques. He did not receive any legal notice regarding dishonor of the cheque in question.
7. I have heard Ld.counsel for the complainant, Ld.counsel for the accused and have carefully gone through the record.
8. It is argued by Ld. Counsel for the complainant that there is presumption in favour of the complainant bank that accused had issued the cheque in question in discharge of his debt/liability and the same having been dishonored for the reason "insufficient funds", and the accused having failed to make the payment of the dishonored cheque despite service of legal notice, within 15 days of its receipt, he has C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh 8 committed the offence punishable u/s 138 of NI Act. The defence taken by the accused that cheque was issued as security cheque is not a plausible and probable defence. It is further submitted by the counsel for the complainant that accused has admitted his liability during his cross examination. Maximum punishment and adequate compensation to the complainant is prayed for by Ld.counsel for the complainant.
9. On the other hand Ld.counsel for the accused has argued that the fact of dishonor of the cheque in question is not reflected in the statement of account filed by the complainant. The mode of the payment of installment was ECS. The complainant had taken number of cheques from the accused at the time of execution of loan documents as security which were blank but signed by the accused and at that point of time there was no liability. The accused never received any legal notice. HDFC Bank is not the actual person from wom the loan was taken and the security cheques handed over. Dismissal of the complaint resulting C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh 9 into the acquittal of the accused has been prayed for by Ld.counsel for the accused.
10. In brief the case of the complainant is that the accused had taken loan from it vide loan agreement No.91513423 and had issued the cheque in question Ex.CW1/B in discharge of his liability. The said cheque was presented to the bank of the accused but the same was dishonored for the reason "funds insufficient" vide cheque return memo Ex.CW1/C. The complainant thereafter had issued a legal demand notice Ex.CW1/D to the accused demanding the amount of the dishonored cheque. The said legal notice Ex.CW1/D had been sent to the accused through speed post, receipts of which are Ex.CW1/E and CW1/E1.
11. As per section 139 of Negotiable Instrument Act there are presumption of law in favour of the holder of the cheque in question that the drawer had issued the cheque in his favour in discharge of his liability/debt. These presumptions are rebutable in nature, onus of which is solely on the C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh 10 accused. To rebut the said presumption the accused had examined himself as DW1 u/s 315 Cr.P.C and taken the plea that he had not taken loan from the complainant bank i.e. HDFC Bank. He had taken loan from Centurian Bank of Punjab in the year 2007. Perusal of cheque Ex.CW1/B reveals that the same is in favour of Centurian Bank of India Ltd. Further plea of the accused is that he had given 78 cheques as security cheques signed by him in favour of Centurian Bank of Punjab Ltd. To stengthen his plea, accused has examined himself u/s 315 Cr.P.C as DW1 and brought and proved on record the overleaf of cheque book of cheque serial number 340301 to 340312 as Ex.DW1/1. On page A of Ex.DW1/1, cheque number 340301 to 340312 have been given to the officials of Centurian Bank of Punjab on 01.05.2007.
12. Here in the present case, the complainant is HDFC Bank whereas the holder of the cheque in question Ex.CW1/B is Centurian Bank of Punjab Ltd. I have gone through the complaint of the complainant. In para No.2 of C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh 11 the same, it is mentioned that "the Reserve Bank of India in exercising of power contained in sub section (4) of section 44A of the Banking Regulation Act 1949 has sanctioned the Scheme of Amalgamation of Centurion Bank of Punjab Ltd. (Transferor Bank) with the HDFC Bank Ltd. (Transferee Bank) the Scheme of Amalgmation came into effect from May 23,2008. Consequent upon the Amalgamation the assets and liabilities of the Centurion Bank of Punjab Ltd. have been taken over by the HDFC Bank Ltd.
13. I have gone through the Scheme of Amalgamation annexure B running into one page only. The complainant has not brought on record the original of annexure B nor proved the same in accordance with law. From annexure B it is not clear if the complainant bank had also been authorised by the erestwhile bank i.e the Centurion Bank of Punjab Ltd. that all its assets and liabilities towards its customers like the accused one shall devolve upon the complainant bank also. As per Section 8 of the Act, the holder of the cheque/instrument is the person in whose name C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh 12 the cheque has been drawn by the drawer. In the present case , the holder of the cheque is Centurion Bank of Punjab Ltd , whereas the complaint has been filed by HDFC Bank Ltd who is not the holder of the cheque as per law. No evidence also led to prove that HDFC bank (complaint herein) had passed on any consideration to Centurion Bank of Punjab Ltd. to become holder of the cheque in due course satisfying requirement of Section 9 of the Act.
14. Further the accused has taken defence that he had given 78 cheques in the year 2007 which were blank to Centurion Bank of Punjab Ltd as security at the time of sanction of the loan. For this purpose and to prove the same, the accused examined himself u/s 315 Cr.P.C and proved the overlef of cheque book as Ex.DW1/1 that cheque from 340301 to 340312 had been given to the official of Centurion Bank Ltd. on 1/5/2007. Admittedly, the mode of payment of EMI was ECS. The complainant has not disclosed or explained as to how the amount of the cheque in question Ex.CW1/B is chargeable upon the accused. C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh 13
15. DW1 accused has been cross examined by Ld. Counsel for the complainant. During cross examination, DW1 accused has deposed that installment was of Rs. 12159/. Amount of the cheque in question Ex.CW1/B is 36477/, that is to say installment amount of three months EMI. Admittedly, mode of payment was ECS. From the testimony of DW1 and the document proved by the accused Ex.DW1/1, it stands proved on record that accused had given various security cheques in blank signed by him in the year 2007 in favour of Centurion Bank of Punjab Ltd. at the time of execution of various loan documents . At that point of time, there was no liability upon the accused towards the complainant bank. The defence of the accused is probable. The accused has been successful to rebut the presumption as provided u/s 139 of the N.I Act. The Hon'ble Supreme Court in Rangappa Vs. Sri Mohan had held: It is a settled proposition that when an accused has to rebut the presumption u/s 139, the standard of proof for doing so is C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh 14 that of preponderence of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail.
16. The Hon'ble High Court of Delhi in 2011 (3) CRC 210 (Del) Ravi Kumar D. Vs. State of Delhi & Anr had held that : "A postdated cheque, if issued for discharge of a debt due, in the event of dishonor, would attract Section 138 of the NI Act but a cheque issued not for an existing debt/liability but issued by way of security for making some future contingency would not be attract Section 138 of the Act .
17. In view of the above discussion, the complainant has not been able to prove its case beyond reasonable doubt. Consequently, the present complaint is hereby dismissed. C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh 15 Accused acquitted of the offence punishable u/s 138 of Act. Bail bond, surety bond cancelled. Surety discharged. File be consigned to R.R. Announced in the open court on 30th July,2012.
(Kishor Kumar) Metropolitan Magistrate02 (Municipal) Dwarka Court, Dwarka, New Delhi.
C.C No. 134/11 HDFC BANK LTD. VS. Surjit singh