Delhi District Court
State Bank Of India vs . Dharam Raj on 3 January, 2011
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IN THE COURT OF MS.MEENU KAUSHIK,
METROPOLITAN MAGISTRATE (SW), DWARKA COURTS, DELHI.
State Bank of India Vs. Dharam Raj
Case No. : 3157/10
U/s : 138 of Negotiable Instruments Act.
JUDGMENT
1. Name of the complainant : State Bank of India, Delhi.
2. Name of the accused, Dharam Raj
parentage & address: R/o Block No.1, Pocket3, Plot No.10,
Sector15, Rohini, Delhi.
3. Offence complained of or U/s 138 of Negotiable Instruments Act
proved:
4. Plea of the accused : Pleaded not guilty
5. Date of institution of the case : 03.07.2006
6. Date of reserve for Judgment : 01.11.2010
7. Final Judgment : Acquitted
8. Date of such Judgment : 03.01.2011
BRIEF FACTS FOR DECISION OF THE CASE:
1. This is Complaint under sec. 138 of Negotiable Instruments Act 1881. The brief facts of the case are : The complainant is a bank having its Central Office at 2 Madam Cama Road, Nariman Point, Mumbai and various branches throughout India including one at Clock Tower, Delhi and filed the present Complaint through Shri R.K. Arora, Branch Manager, Clock Tower, Delhi, who is duly authorised to file the present complaint under the resolution 76 & 77 of State Bank of India General Regulations, 1955 framed by Reserve Bank of India excercising powers conferred on it under Section 50(3) of State Bank of India Act, 1955. The Complainant Company interalia is engaged in the business of providing Loans.
2. The accused took a personal loan of Rs. 1,00,000/ (Rupees One lac ) from the complainant bank on 15.01.2004 and in lieu thereof, the accused had issued certain post dated cheques in favour of the complainant.
3. The five cheques issued by the accused in favour of the complainant, all drawn on State Bank of India, New Delhi, were dishonoured vide Bankers return memo dated 03.06.2006EX.CW1/10 with the remarks "Funds Insufficient". The details of the cheques are given as under: Cheque no. Date Amount 702263 15.01.2006 3570/ Ex.CW1/5 702264 15.02.2006 3570/ Ex.CW1/6 702265 15.03.2006 3570/ Ex.CW1/7 702266 15.04.2006 3570/ Ex.CW1/8 702267 15.05.2006 3570/ Ex.CW1/9 3
4. After receiving back the cheques in question as dishonoured, the complainant sent a legal notice dated 07.06.2006 through registered AD/UPC post to the accused. The postal receipt is exhibited as CW1/12. The carbon copy of legal notice is exhibited as CW1/11. Despite of issuing legal notice upon the accused regarding dishonour of the above mentioned cheques, the accused failed to make repayment of the cheques in question and hence, the present complaint under Section 138 of Negotiable Instruments Act read with Section 420/120B IPC was filed by the complainant on 03.07.2006.
5. After perusing the material available on record, the cognizance of offence u/s 138 of Negotiable Instruments Act against the accused was taken on 20.12.2006. The accused was admitted on bail on 20.07.2007 on furnishing of personal bond in sum of Rs. 10,000/ alongwith the one surety of like amount. Notice was framed against the accused u/s 251 Cr.P.C. on 19.11.2007, to which he pleaded not guilty and claimed trial. After framing a notice, some questions were asked by the Court from the accused. The accused answered in affirmative regarding sign on cheques by him. The accused accepted that the cheques in question were signed by him. Accused also admitted in the Court that the same cheques were handed over by him to the complainant.
6. In Complainant's Evidence, the Affidavit of Branch Manager, State Bank of India, Clock Tower Branch, New Delhi Ex.C1 was filed and the reliance was taken upon the documents Ex.CW1/1 copy of Gazet Regulations 1955 of State Bank of India, Ex.CW1/2 is copy of Gazet of India dated 26.09.1959, Ex.CW1/3 is copy of 4 Gazet of India dated 26.08.1982, Ex.CW1/4 is Copy of Gazet Notification dated 26.03.1987, Ex.CW1/5 to Ex.CW1/9 are the cheques in question, Ex.CW1/10 is the cheque returning memo, Ex.CW1/11 is carbon copy of legal notice and Ex.CW1/12 is the postal receipt. The Branch Manager was cross examined on behalf of the accused. In his cross examination, he stated that the cheques in question were taken from the accused on the date of disbursment of loan and accused was told that it is a prerequisite for grant of loan. He further stated in his cross examination that it is wrong to suggest that after dishonour of cheuqes, legal notice was not sent to the accused on his correct address. However, he could not tell whether the legal notice was served upon the accused or not. In his cross examination, he further admitted that no proof of service of legal notice is placed on record. The complainant evidence was closed on 11.01.2008 and the statement of accused u/s 281 Cr.P.C. was recorded on 17.03.2008. During recording of statement of accused, all the incriminating evidence was put to the accused and it was specifically explained to the accused that he in repayment of loan taken from the complainant, had issued five cheques (details of the cheques are mentioned above in para no.3) issued in favour of the complainant. But on presentation of these cheques by the complainant, the cheques were returned dishonoured with remarks "Funds Insufficient" vide cheque return memo dated 03.06.2006 Ex.CW1/10. It was further explained to the accused that he was served with legal notice Ex.CW1/11 dated 07.06.2006, which was sent to him through registered post vide post receipt Ex.CW1/12, but despite that, he failed to pay the aforesaid cheques amount to the complainant. In response to the aforesaid 5 evidence, it was stated by the accused that the cheques in question were taken by the complainant for pre requisite condition for grant of loan and he further stated that he was never served with any legal notice.
7. In defence evidence, the accused examined himself as witness DW1. In his defence evidence, the accused tenderred an affidavit dated 14.02.2008, Ex.DW1/1. On 14.05.2008, the accused was cross examined as DW1 by the counsel for the complainant. In his cross examination, the accused accepted that he took loan from the complainant for amount of Rupees one lac and it was agreed between him and the complainant that the loan has to be repayed for EMI of Rs. 3570/. The accused further accepted that the cheques in question were signed by him and no bank official intimediated him to sign the cheques. However, he signed the cheques as the bank misrepresented to him that taking of these signed cheques is a pre requisite for grant of loan. In his cross examination, he further accepted that at the time of taking loan, he was residing at A3/10, Sector15, Rohini, Delhi85. The accused after cross examining himself closed his defence evidence on 14.05.2008. Final arguments were heard on 27.10.2008 in Tis Hazari Courts. Final arguments were again heard on 10.06.2010 in Tis Hazari Courts and it was again put up for further arguments. The written arguments on behalf of accused were placed on record on 03.12.2009 in Tis Hazari Courts.
8. The present case was received by this court by way of transfer from Tis Hazari Courts on 12.05.2010 and it was first took up by this court on 13.07.2010. Court notice were issued twice by this court to both the parties to appear before this 6 court. Shri Vinay Kumar appeared as counsel for complainant in this court on 31.08.2010 and filed his vakalatnama. However, as nobody appeared on behalf of the accused, the court notice was sent to the accused and his counsel to appear before this court and to place the final arguments. However, nobody has appeared on behalf of the accused despite issuing court notice. Vide order dated 23.09.2010, the court notice was directed to be issued to the accused to appear before this court and last and final opportunity was given to the accused to place the final arguments. However, as nobody appeared on behalf of the accused, the court decided to proceed on the basis of material available on record. NBWs were also issued against the accused on 23.10.2010. On 01.11.2010, final arguments on behalf of complainant heard and the written arguments were placed on record on behalf of the complainant and the matter was adjourned for orders. On 23.12.2010, the matter was adjourned for today due to heavy cause list and work of the link court.
9. Written arguments on behalf of the accused: There are mainly two defences raised by the accused first that the cheques in question were taken by the complainant by misrepresentation that these are pre requisite for grant of loan and the second defence that the accused was not served with any legal notice, specially the legal notice dated 07.06.2006, which is claimed to be served by the complainant upon the accused.
In his first defence, the accused pointed out that CW1 in his cross examination has admitted that, "it is correct that the accused was told that it is a pre requisite for grant of loan".
7 To substantiate his second defence, on behalf of the accused, the contention was raised that there is no evidence placed by the complainant, which can prove that the legal notice dated 07.06.2006 was sent to the accused at his correct address within one month from the receipt of the information of dishonour of cheques in question.
The further contention raised on behalf of the accused that the only document placed on record to prove that the legal notice was sent to the accused is a postal receipt bearing number 667, which bears incomplete address of the accused and moreover, the postal stamp thereon is illegible. It is further submitted on behalf of the accused, that the accused in para 3 of his affidavit dated 14.02.2008 deposed that the postal receipt through which the legal notice dated 07.06.2006 is claimed to be dispatched is false and fabricated as it does not bear any legible postal stamp and it is why date of dispatch is not mentioned in the complaint.
It is further contended on behalf of the accused that DW1 in his cross examination was not controverted by the complainant regarding his claim of false and fabricated postal receipt.
It is further contended on behalf of the accused that the complainant has not mentioned neither in the complant, nor in his affidavit in evidence, the date of dispatch of the legal notice to the correct address of the accused. The another point raised on behalf of the accused that even if it is believed that the legal notice was sent to the accused within the stipulated period, it remains 8 to be seen whether the same was dispatched to the correct address of the accused.
To prove the correct address of the accused it is contended on behalf of the accused that at the time of taking loan, the accused was residing at A3/10, Sector 15, Rohini, Delhi85, which is proved by the suggestion of the complainant given in his cross examination of accused DW1, wherein the accused has admitted the same to be his correct address at the time of grant of loan.
To substantiate the proof of correct address of the accused, the further contentions given on behalf of the accused that the same address of the accused is mentioned in the bail bond furnished by him, which was verified by Head Constable Sanjay Kumar in his report dated 04.08.2007, wherein he mentions that Dharam Raj is living on the given address for the last nine years. The same address of the accused is mentioned in his vakalatnama dated 20.07.2007. Moreover, the address of the accused mentioned in the complaint as well as in the legal notice is proved to be incorrect by the report of the process server dated 02.02.2007 on the back of the summons dated 15.01.2007 issued by the court.
10. Written arguments on behalf of the complainant: In the written arguments filed by the complainant, it is submitted that the following defences were raised by the accused: I. the issuance of blank post dated cheques on the date of execution of loan 9 agreement on mis representation that the same i.e. Issuance of the post dated blank cheques, though the loan agreement does not contain any such condition:
II. the postal receipt through legal notice dated 07.06.2006 is false and fabricated because it does not bear any legible postal stamp and it is why the date of dispatch of said notice is not mentioned in the complant, III. the legal notice dated 07.06.2006 was not sent to the correct and complete address of the accused;
IV. the legal notice dated 07.06.2006 was not served upon the accused as on date of service of the same is mentioned either in the complaint or the affidavit; V. there is no proof of service of the same upon the accused on record. In reply to the first defence raised by the accused it is contended on behalf of the complainant that it is observed by the Hon'ble Supreme Court of India in various cases that the defence of issuance of cheque and misrepresentation is unsustainable in the eyes of law.
In reply to the second defence raised by the accused, it is contended on behalf of the complainant that on the postal receipt it is clearly and legibly appeared that the said notice was sent on 08.06.2006.
In reply to the third an fourth defence raised by the accused, it is contended on behalf of the complainant that if the legal notice was sent on the wrong address then how he received the summons of the court at the same address. In reply to the fifth defence raised by the accused, it is contended by the complainant that the postal receipt itself is a sufficient that the accused has 10 been served within the statutory period as per the provisions of Negotiable Instruments Act 1881.
11. I have heard the Ld. Counsel for the complainant and perused the written arguments placed on behalf of both the parties, testimony of witnesses and the material available on record. After perusing all the material available on record, the only question in dispute between the parties is whether the legal notice was served upon the accused or not and hence the cause of action is arised in favour of accused or not.
12. The address mentioned in the legal notice dated 07.06.2006 Ex.CW1/11 sent by the complainant to the accused regarding dishonour of the cheques in question is "Block No.1, Pocket3, Plot No.10, Sector15, Rohini, Delhi." The postal receipt for sending the legal notice is Ex.CW1/12 does not show the complete address at which the legal notice was sent. No proof of delivery of this legal notice is placed on record. In cross examination of AR of the complainant, it is accepted by the AR of the complainant that he cannot tell whether the legal notice was served upon the accused or not. He further accepted that no proof of service is placed on record by the complainant. Summons issued against the accused received back with the report that there is no block with no.1 in Sector15 of Rohini and all the blocks are divided in A,B,C,D etc. The address of the accused mentioned in the bail bond furnished by him is "A3/10, Sector15, Rohini, Delhi85". The verification report dated 04.08.2007 submitted by Head Constable Sanjay Kumar regarding the address of the accused mentioned in his bail bond received back with the report that the accused was living on 11 the address mentioned in the bail bond since last nine years.
13. In written arguments placed on behalf of the complainant, in reply to the defence raised by the accused that no legal notice dated 07.06.2006 was served upon him, it is contended that if legal notice was sent on the wrong address to the accused then how he received the summons of the court at the same address.
14. This contention of the complainant holds no strength as the summons sent to the accused also received back with the report that 'the address is incorrect and there is no block with block No.1 and all the blocks are divided in A,B,C,D etc'.
15. In view of these circumstances and in absence of any proof of delivery of legal notice upon the accused, it comes out that no legal notice regarding the dishonour of the cheques in question served upon the accused. Hence, no cause of action under Section 138 of Negotiable Instruments Act 1881 arises against the accused. Hence, the complainant has failed to prove his case beyond all shadow of doubts and consequently I hold the accused not guilty of offence under Section 138 of Negotiable Instruments Act 1881. Accordingly, the accused stands acquitted. Bail bond and surety bond if any stands discharged. File be consigned to the record room after necessary compliance.
Announced in the open Court (MEENU KAUSHIK)
on this 3 Day of January, 2011.
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METROPOLITAN MAGISTRATE
DWARKA COURTS:NEW DELHI
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