Delhi District Court
Icici Bank vs Vie Software Pvt Ltd on 21 July, 2014
-:1:-
IN THE COURT OF MS. MANU VEDWAN, LD. METROPOLITAN
MAGISTRATE : SPECIAL COURT - 05 (NI ACT) : DWARKA : DELHI
ICICI Bank Vs VIE Software Pvt Ltd
Complaint Case No. : 85/14
P.S. :
U/s. : 138 N.I.Act
J U D G M E N T
1. Name of the complainant : ICICI Bank Ltd
Registered office at:
"Landmark", Race Course Circle
Vadodara 390007
and branch office at:
Sector 8, Rohini
NewDelhi85
2. Name of the accused
and address : 1 VIE Software Pvt Ltd
(Through its Director)
201, Bhagwati Tower
39, Commercial Complex,
Wazirpur
New Delhi110052
2 Amit kumar
Director
VIE Software Pvt Ltd
201, Bhagwati Tower,
39, Commercial Complex,
Wazirpur
New Delhi110052
CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd
-:2:-
3 Mahesh Chander
Director
VIE Software Pvt Ltd
201, Bhagwati Tower
39, Commercial Complex,
Wazirpur, New Delhi52
3. Offence complained of : U/s.138 N.I.Act
4. Plea of accused : Pleaded not guilty
5. Final Order : Acquitted
6. Date of Reserving the : 21.07.2014
Judgment
7. Date of Order : 21.07.2014
Date of Institution of case : 13.08.2012
Date of Decision of the case : 21.07.2014
BRIEF SKETCH OF THE CASE
1. Vide this judgment, I shall dispose of the complaint u/s.138 read with Section 142 of the Negotiable Instruments Act, 1881 against the accused.
2. The case of the complainant is that complainant company M/s ICICI Bank Ltd is a body corporate duly constituted under the Companies Act, 1956, having its registered office at Landmark Race Course Circle, Vadodara390007, and one of its Branch office at : SD Tower, Sector 8, Rohini, New Delhi85. Sh. Bhaskar Mishra, working as CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:3:- Debt Service Manager, is duly authorised for and on behalf of the complainant company to sign, verify, file, institute, prosecute and to do all such acts, deeds and things on the basis of Power of Attorney dated 05.03.2010 granted in his favour by the complainant company.
3. It is further submitted in the complaint that accused no. 1 had availed credit/finance facilities from the complainant in form of Loan/Credit Facility under Loan/Facility Agreement No. 036905000674 in its name of which the other accused persons are the directors and the persons incharge of and responsible for the conduct of its business, operations and functions. It is further submitted by the complainant that in discharge of part of their debts/liability towards the complainant company, accused persons signed and issued a cheque for a sum of Rs. 5, 71, 636/ bearing No. 548701 dated 12.06.2012 drawn on ICICI Bank Ltd, AM6, Shalimar Bagh, New Delhi58 in favour of the complainant company. With the assurance that the same would be honourned on presentation.
4. It is further submitted by the complainant that after getting due assurance from the accused persons, the complainant company presented the aforesaid cheque for encashment but the same was returned as unencashed and dishonoured vide bank returning CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:4:- memo dated 13.06.2012 with the remarks 'Debit Account closed". Thereafter, complainant sent a legal notice dated 25.06.2012 to the accused under Section 138 of Negotiable Instruments Act, through registered post acknowledgment vide postal certificate dated 27.06.2012. By virtue of said notice accused was requested to clear the outstanding amount and pay the amount of the cheque within 15 days from the receipt of the legal notice dated 27.06.2012 failing which the accused was notified that necessary action under Negotiable Instruments Act, 1881 as amended up to date would be taken against him by the complainant bank. Accused persons failed to abide by terms and conditions of legal notice.
5. The complaint was filed within limitation pursuant to which summons and thereafter warrants were issued against the accused, consequent thereupon the accused entered appearance and was admitted to bail. Notice u/s.251 CrPC was framed against the accused to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was listed for evidence.
6. AR of the complainant has been examined as CW1. CW1 adopted pre summoning evidence Ex. CW 1/A as post summoning evidence and has relied upon following documents - Copy of Power of Attorney dated 5.03.2010 , original cheque Ex. CW1/2, original CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:5:- return memo as Ex. CW1/3, Legal notice as Ex. CW1/4, original certificate of posting along with AD card/Registered cover are collectively exhibited as Ex. CW1/5. During post summoning evidence complainant has relied upon the same documents as relied during pre summoning evidence. Complainant has also relied upon the following documents: complaint already Ex. CW1/6, Certificate U/s 2A of the Banker's Book of Evidence, Act, 1891 which is exhibited as CW1/7, Certified copy of Statement of Account bearing account no. 036905000674 w.e.f 1.04.2008 to 31.03.2009(running into 16 pages) which is exhibited as Ex. CW1/8, Loan Agreement(running into 5 pages) which is exhibited s Ex. CW1/9(OSR), certified copy of Statement of Account bearing account No. 036905000674 w.e.f 1.4.2009 to 31.03.2010(running into 9 pages) which is exhibited as Ex. CW1/10, certified copy of Statement of Account bearing account no. 036905000674 w.e.f 01.04.2010 to 31.03.2011(running into 03 pages) which is exhibited as Ex CW1/11, certified Copy of Statement of Account bearing acount no. 036905000674 w.e.f 1.04.2011 to 31.03.2012(running into 1 page) which is exhibited as Ex CW1/12, certified copy of Statement of Account bearing account no 036905000674 w.e.f 01.04.2012 to 31.03.2013(running into 1 page) which is exhibited as Ex CW1/13 and certificate dated 23.09.2013 with regard to account No. 036905000572 issued by Authorised Signatory, ICICI Bank Ltd, CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:6:- AM6, Shalimar Bagh, Delhi88 which is exhibited as Ex. CW1/14. Counsel for the accused has objected to the documents Ex. CW1/1, ex. CW1/4, Ex CW1/5, Ex. CW1/8 to Ex. CW1/14 with respect to the mode of proof as the witness is not the author of the said document. Objection on the ground that witness is not the author of document is not sustainable in terms of the provisions of Chapter V of the Indian Evidence Act. CW 1 during his crossexamination submitted that though the loan in question has been recalled but he is not able to produce any loan recall notice. CW 1 in his cross examination further submitted that though the fact of negotiations as mentioned in para No.3 and 4 of his affidavit is correct but he is unable to divulge the name of officials in whose presence or on which date the said negotiations took place. CW 1 also showed his unawareness regarding the visitation of the accused persons in the office of the complainant.
7. Complainant evidence was followed by the statement of all accused U/s 313 Cr. C in which all the incriminating evidence along with exhibited documents were put to all the accused persons. All the accused in their statement accepted the fact of availing the loan under the loan agreement No. 03690500037 from the complainant bank. Accused No. 2 denied the fact of handing over the cheque in question to the complainant bank, for discharging his liability. CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:7:- Infact, it is submitted by the accused no. 2 that he has issued the cheque in question as security at the time of disbursal of the loan, signed and blank. It is further submitted by accused No. 2 in his statement that the account bearing no 036905000572 was operated for only two transactions, firstly, to open the loan account and secondly the cheque in question was handed over as security, at the time of opening of the abovsaid account. Accused number 1 through accused number 2 and accused number 2 submitted in their statement that accused No. 2 was in Bangalore starting from the period, October 2011 to September, 13, 2012. Thus, according to him, there is no question of handing over the cheque in question during that period to the complainant.
Accused No. 3 has stated in his statement U/s 313 Cr.PC that he was not involved in the day to day business of accused no. 1. Accused number 3 has further stated that he has not issued any cheque in question. All the accused denied the fact of receiving legal notice.
8. Accused has thereafter lead his defence evidence and get examined Sh Rajeev Ranjan, Nodal Office, Tata Tele Services Ltd as DW 1. DW 1 in his examination in chief submitted that he has brought the summoned record ie. the call details of mobile bearing number 8147665848 which was issued to Sh. Amit Kumar S/o Sh. CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:8:- Radhey Shyam from 01.09.2012 to 30.09.2012 running into 33 pages. Under the heading 'switch' the location of mobile user is mentioned and under the heading 'roaming' roaming circle is mentioned. Same is Ex. DW1/A colly. The customer application form with identity proof is Ex. DW1/B(colly). The certificate under Section 65B of India Evidence Act is Ex. DW1/C. The series pertains to Karnataka Circle. DW 1 in his crossexamination submitted that location mentioned in Ex DW1/A is the location of the mobile connection and not its user.
Accused also got examined Sh. Hari Dhingra, Assistant Manager ICICI Bank as DW 2. DW 2 in his examination in chief submitted that he has brought the opening and the closing statement of the account bearing number No 036905000674 and account bearing number 036905000572. Same are Ex. DW 2/A and Ex. DW2/B respectively. It is further submitted by DW 2 that the account bearing number 036905000674 was opened on 7.12.2006 in the name of VIE Software Pvt Ltd and was lying dormant till date. The account bearing No. 036905000572 was opened on 05.10.2006 in the name of VIE Software Ltd and was closed on 31.12.2008. DW 2 in his examination in chief submitted that the remaining cheque of the closed account can be used lateron by the account holder.
Accused also examined Sh. H. C. Takyar as DW 3. DW 3 brought the lease deed executed on 06.05.2008 between him and CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:9:- the accused Amit kumar. Same is Ex. DW3/A(OSR). The lease deed was executed for the period starting from 07.05.2008 till 06.05.2011 DW3 submitted that accused had vacated the premises on 21.08.2010 and premises was, therefore, leased to another tenant from September, 2010. DW 3 in his crossexamination submitted that Mr Amit kumar has given him verbal notice for vacating the premises on 21.08.2010.
Accused had also got examined Sh. Tilak Raj as DW 4. DW 4 has brought the certified copy of the statement of account bearing number 53002269570 which is Ex. DW4/A running into fifteen pages. DW 4 in his crossexamination submitted that he has no personal knowledge of the present case.
09 I have considered the submissions and perused the relevant records carefully. Despite giving ample effective opportunities, complainant miserably fails to propound the arguments, thus case has been decided as per law. I have also perused the case law filed by the counsel for the accused ie. C. Antony vs. G. Raghavan Nair AIR 2003 Supreme Court 182 and Surender Bala and another vs. M/s Sandeep Foam Industries Pvt. Ltd AIR 2000 Delhi 300 very carefully. These case laws are read in light of other quoted judgments here.
CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:10:- 10 The scope of presumptions u/s.118(a) and u/s.139 of the Negotiable Instruments Act is that once the signatures on the cheque are admitted by the drawer of the cheque, there arises a presumption in favour of the payee/holder in due course in terms of these Sections of Negotiable Instruments Act that the cheque has been issued for consideration and in discharge of legally enforceable debt or liability. It is also well settled that (a) the presumption does not go to the extent of presuming the existence of debt and (b) the aforesaid presumption is rebuttable in nature (see Krishna Janardhan Bhatt vs. Pattatraya G.Hegde (SC)2008(1) RCR Criminal 695). Further, it is also well settled that for the rebuttal of the presumptions it is not necessary that the accused must step into the witness box but the presumptions can be rebutted either by cross examination of complainant's witness (see M.S.Narayana Manon vs. State of Kerala & Another AIR 2006 SC 3366 and Krishna Jnardhan Bhat vs. Dattatraya Hegde SC 2008(1) RCR Criminal 695) or even by raising presumptions of fact or law from the material available on record (see Kundan Lal Kala Ram vs. Custodian Evacuee Property, reported as AIR 1961 SC 1316). In Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm and Others AIR 2008 SC 2898 it was held as under:
"12. Under Section 118 (a) of the Negotiable CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:11:- Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in the regard lies on the defendant to prove the non existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. ... ... ... The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:12:- plea that it did not exist. ... ... ..."
Standard of proof of rebuttal of presumptions by any person accused of an offence under Section 138 of the Negotiable Instruments Act is preponderance of probabilities and It is not at all necessary for the accused to prove his defence beyond reasonable doubts. Though, bare denial or bald suggestions given by the accused would not be sufficient to rebut the aforesaid presumption (see Hiten P. Dalal vs. Bratindranath Banerjee AIR 2010 SC 1898). Thus, whether the presumption has or has not been rebutted depends on the facts of each case to be analyzed in the light of aforesaid legal principles.
11. Now, question which is to be determined here is whether the accused handed over the cheque in question to the complainant bank was given in discharge of any legal debt or liability. First and foremost fact which has to be proved on record to hold the accused liable for the offence U/s 138 of NI Act and which is the basic ingredient of this offence is that cheque in question was issued by the accused for the discharge, in whole or in part, of any debt or any other liability and the cheque returned dishonoured. As per the case of the complainant, the cheque in question was handed over by the accused to the complainant to clear his outstanding CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:13:- dues after visiting and negotiating with the complainant. Per Contra, accused submitted that cheque in question was never given by him to the complainant to clear his liability after negotiations with the complainant. Infact, it is the defence of the accused that cheque in question was given as security at the time of disbursal of loan by the complainant to the accused.
12 Counsel for accused has put forth his multipronged defence as follows.
Counsel for accused submits that in events of default as per Clause 23 of the Annexure '1' of 'Terms and Conditions', complainant bank has to terminate the overdraft facility and call upon the borrower to pay all the dues in respect of the overdraft facility. Counsel for accused thereafter submitted that complainant has never recalled the loan in question and thus there is no question of accused all of a sudden entering into negotiations with the complainant to hand over the cheque of the amount of more than five lac rupees after alleged negotiations with the complainant.
Here, it is pertinent to mention the crossexamination of CW1 in which CW 1 though submitted that loan in question was recalled, but at the same time also submitted that he is unable to file any document with respect to the same.
"................. Voluntarily stated: As per the CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:14:- obtaining procedure of the complainant bank every loan which is NPA is recalled by sending the loan recall notice. I can't produce the loan recall notice sent to the accused persons with respect to the loan in question....................."
"................. I do not even remember when the loan in question had been recalled........"
Thus, complainant fails to file any documents to consider which would prove/establish the fact of recalling of loan.
Counsel for accused further contended that according to provision of Section 92 of Indian Evidence Act, when contract, grant or disposition of property or any matter required by law to be reduced to the form of a document, oral evidence regarding the fact of contradicting, varying, adding to or subtracting from it's terms is not relevant. As per the proviso(2) of Section 92 of Indian Evidence Act, the existence of any separate oral agreement as to matter on which a document is silent, and which is not inconsistent with it's terms may be proved.
Complainant fails to produce any visitor's entry register or any relevant document with respect to the entries of or it's date to transaction pertaining to the handing over of the cheque in question CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:15:- by accused to the complainant. Here again, the pertinent portion of crossexamination of CW 2 are required to be mentioned.
" ................. I do not know the dates of the visit by the accused persons in the office of the complainant as mentioned in para No. 9 of my affidavit Ex. CW1/A. I can't tell the name of the officer with whom the accused persons met in the office of the complainant..............."
In, accordance with banking traditions all the terms and conditions should be reduced into writing. Complainant in his evidence by way of affidavit as well as in crossexamination submitted that negotiations for settlement took place after which the cheque in question was handed over by the accused to the complainant. The relevant portions of the crossexamination of the AR of the complainant to the effect that he was neither aware of the date or the name of the officials in whose presence the negotiation for settlement took place is reproduced below: '.............. I do not know the name of the officials of the complainant bank In whose presence the said negotiations for settlement took place. I cannot tell the date of such negotiations. I can't tell whether said CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:16:- negotiations took place or not....................' Thus, complainant miserably fails to throw light on the fact that what was occasion for the negotiations as mentioned by the complainant in his evidence by way of affidavit and how these negotiations would prevail on written terms and conditions of loan agreement? Otherwise also, is there any clause in loan agreement under which effective negotiations/oral settlement would take place? Complainant has miserably failed to file any relevant evidence to be considered which would establish the arrival of the later negotiations by the accused with the complainant under which the cheque in question was handed over to the complainant bank on relevant date. It has never been enumerated by the complainant in his evidence, or even at the time of final arguments what is the occasion for arrival of negotiations towards loan account in question. In Builders vs Arihant Fertilizers & Chemicals and Anr., (2008) 2 SCC 321, Negotiable Instruments Act envisages that:
" ...application of the penal provisions which needs to be ` construed strictly. Therefore, even if two view in the matter are possible, the Court should lean in favour of the view which is beneficial to the accused. This is more so, when such a view will also advance the legislative intent, behind enactment of this criminal CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:17:- liability."
In Rangappa Vs. Mohan AIR 2010 SC 1898 Hon'ble Supreme Court has held that "in a complaint under Section 138 NI Act an accused can seek to establish that complainant's case is not proved even on a preponderance of probabilities. The accused does not have to himself lead any evidence for that purpose. The presumptions under Sections 118 and 139 of the NI Act are rebuttable..........".
The burden was on the accused to disprove the presumption u/s 139 NI Act, a burden which in the light of above mentioned discussion has been successfully discharged by him. It is apparent that the accused has furnished cogent reasons which resulted in shifting the burden of proof on the complainant, which the latter failed to discharge.
14 Regarding, the question that whether legal notice has been received by the accused? Complainant has placed on record legal notice Ex.CW1/4 alongwith AD card(s)/Registered Cover (s) Ex.CW1/5(colly). It is a settled position of law that a notice properly addressed, prepaid and posted by registered post shall be deemed to be served upon the respondent unless the contrary is proved. Furthermore, it is not in dispute that accused has been served through process of the court and once it is so, the decision of CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd -:18:- Hon'ble Supreme Court in Alavi Hazi v. Palapetty Muhammad & Anr. 2007 STPL (DC) 952 SC would also be applicable wherein Hon'ble Apex Court has held that even if the accused did not receive the legal demand notice he can pay the cheque amount within fifteen days of the service of summons from the court but if he fails, he cannot contend that he has not received the legal demand notice. 15 It is evident that the drawer has failed to make the payment of cheque amount in question within 15 days of the receipt of aforesaid notice, thus, the present complaint U/s 138 NI Act has been initiated against the accused.
16 In the view of the foregoing observation and in view of the evidence, documents put forth and arguments of both the parties, all the accused are hereby acquitted for the offence punishable u/s. 138 of Negotiable Instruments Act.
ANNOUNCED IN OPEN COURT (MANU VEDWAN)
ON 21 st day of July 2014 METROPOLITAN MAGISTRATE
SPECIAL COURT NO.05, NI ACT
DWARKA, DELHI
CC No. 85/14 ICICI Bank Vs. VIE Software Pvt Ltd