Delhi District Court
M/S Hdfc Bank Ltd vs Onkar Singh Kalra on 4 September, 2013
IN THE COURT OF SHRI ARUN KUMAR, METROPOLITAN
MAGISTRATE:DWARKA COURTS:NEW DELHI
CC NO:91/12
Unique Case ID No: R0746252009
M/s HDFC Bank Ltd.
through its Mr. Gopal Ranga
(Constituted Attorney Holder & Authorised Representative
and Legal Manager)
Having its office at
IInd Floor, Express Building,
Bahadurshah Zafar Marg,
New Delhi-110001 ............Complainant
Versus
Onkar Singh Kalra
QU-110-C, 2nd Floor,
Pitam Pura, Delhi ................Accused
Date of filing : 24.02.2009
Date of Institution : 07.03.2009
Offence Complained of or proved : Under section 138 of
Negotiable Instruments Act,
1881
Plea of the accused : Pleaded not guilty
Date of reserving judgment/order : 26.08.2013
Final Order/Judgment : Convicted
Date of pronouncement : 04.09.2013
JUDGMENT:
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:-
CC No.91/12
HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 1 of 33
1. Vide this judgment, I shall dispose of the present complaint u/s 138 of the Negotiable Instruments Act filed by M/s HDFC Bank Ltd. against the accused.
2. The present complaint has been filed by the complainant against the accused with respect to the cheque bearing No.112966 dated 05.12.2008 for a sum of Rs.48,018 drawn on Punjab National Bank, Rajouri Garden, New Delhi-110027 allegedly issued by the accused in favour of M/s Centurion Bank of Punjab Ltd., which was subsequently amalgamated with the complainant bank i.e. HDFC Bank Ltd with effect from 23.05.2008 vide RBI order dated 20.05.2008. According to the complainant the aforesaid cheque, on presentation, was dishonoured on account of Funds Insufficient vide return memo dated 15.12.2008. It is further the case of the complainant that the aforesaid cheque was issued by the accused towards discharge of part of his debt towards complainant in terms of loan account no.91354321 and despite service of legal notice of demand dated 10.01.2009 issued by the complainant to the accused, in terms of provisions of 138 of the NI Act, 1881 after dishonour of the cheque through registered AD, the accused had failed to make payment of cheque amount within a stipulated period of 15 CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 2 of 33 days and as such he has committed the offence u/s 138 NI Act.
3. The complaint was filed by the complainant with the aforesaid allegations through Mr Gopal Ranga its duly authorized representative. On receipt of the complaint, cognizance of offence was taken and accused was summoned vide order dated 07.03.2009 in pursuance to which the accused had appeared on 29.11.2011 and was admitted to bail. Thereafter, the complaint was transferred to this Court on 04.01.2012 by the order of Ld. District & Sessions Judge, Delhi and since the matter could not be settled between the parties despite repeated opportunities, a separate notice u/s 251 Cr PC explaining accusations against the accused u/s 138 of the NI Act was issued to him on 05.10.2012 to which he did not plead guilty and claimed trial. Thereafter, an application under Section 145(2) of the NI Act was moved on behalf of the accused seeking permission to recall the complainant's witnesses for cross examination and the same was allowed vide order dated 05.10.2012. CW1 in his affidavit filed by him on behalf of the complainant at pre- summoning stage had relied upon the following documents:-
EX.CW1/1A: Copy of power of attorney in favour of Mr Gopal Ranga.CC No.91/12
HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 3 of 33 EX. CW1/B: Original cheque bearing no.112966 dated 05.12.2008 for a sum of Rs.48018/- drawn on Punjab National Bank, Rajouri Garden, New Delhi in favour of M/s Centurion Bank of Punjab EX.CW1/C: Cheque return memo dated 15.12.2008 in respect of the aforesaid cheque.
EX.CW1/D: Copy of Legal notice dated 10.01.2009. EX.CW1/E: Copy of postal receipt dated 13.01.2009. EX.CW1/F: Present complaint u/s 138 NI Act 4 Thereafter, CW1 was duly cross examined by ld. Counsel for the accused and during cross examination witness has also produced renewed Power of Attorney in his favour which was effective till 31.03.2013 and same was marked as Ex CW1/X. During cross examination CW1 has stated that though he does not remember exact date and month of disbursal of loan in question, however, according to him the loan was disbursed to the accused in the year 2007. Admittedly, the statement of loan account of the accused has not been filed by the complainant on record and it was suggested by Ld. Counsel for the accused to the witness that loan in question was repayable in 60 equal monthly installments of Rs.8003/- each through ECS and same was admitted by the witness. CW1 denied the suggestion given by ld counsel for CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 4 of 33 accused to the effect that cheque in question was not given by the accused to the complainant for repayment of loan in question and that same was given by him to the complainant as blank signed security cheque in respect of some other loan availed by the accused for purchase a car. It was admitted by the witness during his cross examination that the charges on account of dishonour of cheque in question have not been debited by the complainant in statement of loan account of the accused, though, according to him the charges on account of failure of ECS transaction have been debited by the complainant in the loan account of the accused. The suggestion of ld counsel for accused that cheque in question was never presented by the complainant in the loan account in question was denied by the witness. The witness has further denied the suggestion that no legal notice with respect to cheque in question has ever been served upon the accused by the complainant. After cross examination of the CW1, on a separate statement of AR of the complainant, CE was closed vide order dated 18.02.2013 and accused was examined u/s 313 Cr PC on 05.04.2013.
5. In its statement u/s 313 Cr PC, accused has admitted that he had availed the loan in question which was repayable by him in 60 equal CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 5 of 33 monthly installments of Rs.8003/- each by way of EMIs, though, according to him, cheque was not issued by him in favour of the complainant and in discharge of any liability and the same was given by him to the complainant along with four other cheques as security around 4 ½ years back for the purposes of signature verification for car loan availed by him from the complainant. The accused has denied the receipt of legal notice and knowledge of presentation and dishonour of the cheque in question. It is submitted by him that he wanted to lead evidence in his defence and accordingly, he had examined himself as DW1 after his application u/s 315 Cr PC was allowed and during his examination in chief he has reiterated and reaffirmed the stand taken by him during his examination u/s 313 Cr PC.
DW1 was duly cross examined by Ld counsel for the complainant after application u/s 311 Cr PC moved on behalf of the complainant was allowed. During cross examination of the accused , the accused has admitted the fact of availing of the loan in question from M/s Centurion Bank of Punjab Ltd and the fact of merger of Centurion Bank of Punjab Ltd into the HDFC Bank Ltd. He has also admitted terms and conditions of the repayment of the loan in question though, he failed to point out the exact number of CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 6 of 33 installments paid by him to the complainant under the loan agreement in question. It is admitted by him that he had not repaid entire loan amount in question and he owes some liability towards complainant under the aforesaid loan agreement. Accused admitted his signatures on the cheque and the factum of handing over of cheque in question by him to the complainant, though, it is stated by him at this stage that cheque was given by him to representative of Centurion Bank of Punjab Ltd prior to availing of loan in question for the purposes of signature verification. He has admitted factum of dishonour of the cheque on account of insufficiency of funds and expressed his inability to respond to the suggestion that he had only paid 9 EMIs to the complainant under the loan agreement in question and 51 EMIs were still outstanding against the accused. The accused had stood by his stand that he had not received any legal notice, though, he had admitted that address mentioned in the aforesaid notice was his correct address. It is further submitted by him that he was aware of amalgamation of M/s Centurion Bank of Punjab Ltd with M/s HDFC Bank Ltd. It is further admitted by him that he does not have any documentary proof to show that he had made payment of more than 9 installments under loan agreement in CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 7 of 33 question to the complainant.
6. Thereafter, on separate statement of accused DE was closed on 02.07.2013 and matter was fixed for final arguments.
7. Final arguments in the case were heard on 26.07.2013 and 06.08.2013. However, certain clarifications were required from both the parties on the point of Power of Attorney of AR of the complainant and accordingly, the arguments on the aforesaid aspect were reheard on 26.08.2013.
8. It is submitted by counsel for the complainant that complainant has successfully proved all essential ingredients of offence u/s 138 of NI Act against the accused in as much as the accused has not denied the signatures on the cheque in question and his liability towards complainant. In view of the aforesaid admissions, it is submitted by Ld. Counsel for the complainant that a presumption under section 118(a) and section 139 of the NI Act arises in favour of the complainant that cheque in question was issued by the accused in favour of the complainant in discharge of his legal enforceable liability towards complainant and since according to him, the accused has failed to make payment of the cheque amount in question to the complainant CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 8 of 33 despite deemed service of the legal notice which was sent by him to the correct address of the accused, the accused has committed the offence u/s 138 of the NI Act and he may be punished for the same.
9. On the other hand, it is submitted by Ld counsel for accused that present complaint is not maintainable in as much as same has not been filed by duly authorized representative of the complainant. According to him, the complainant has failed to prove on record the alleged power of attorneys Ex. CW-1/A and Ex. CW-1/X in favour of Mr. Gopal Ranga as per the provisions of Indian Evidence Act, nor according to him, the complainant has been able to show that by virtue of aforesaid Power of Attorneys, Mr. Gopal Ranga was authorized to file the present complaint on behalf of the complainant. It is further submitted by him that the complainant has failed to prove that the cheque in question was issued by accused in favour of the complainant in discharge of his liability under loan agreement in question despite categorical stand taken by the accused the cheque in question was handed over by him to the complainant as blank signed cheque for signature's verifications under some other agreement executed between the parties and not under loan agreement in question. It is further submitted that the CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 9 of 33 complainant has also failed to prove the dishonour of the cheque in question and in as much as neither witness from bank has been examined by him nor return memo relied upon by the complainant bears the seal of any bank. Similarly, according to him, complainant has also failed to prove service of legal notice to the accused. According to him even no presumption arises in favour of the complainant u/s 27 of General Clauses Act in as much as there no proof is on record regarding dispatch of legal notice to the correct address of the accused since the postal receipt Ex CW1/E does not bear complete address of accused. In view of the aforesaid submissions it is therefore contented by him that accused is entitled to be acquitted of charges u/s 138 of NI Act and accordingly, present complaint filed by the complainant should be dismissed by this court.
10. I have heard the submissions made on behalf of both the parties and have perused the records. I shall deal with the submissions made on behalf of both the parties one by one in subsequent paras.
11. The first contention raised by Ld. Counsel for the accused is that the present complaint is liable to be dismissed in view of the fact that the same has not been filed by duly authorized representative of the complainant bank, CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 10 of 33 in as much as, according to him, the complainant has failed to prove the power of attorney Ex. CW-1/A and Ex. CW-1/X on record by producing the board resolution in favour of Mr. Aditya Puri, Mr. A Rajan and Mr. Nisheeth Sahay/Mr. Rajesh Kumar from whom allegedly the powers have been derived by Mr. Gopal Ranga, alleged AR of the complainant. Moreover, according to him, a bare perusal of two power of attorneys placed on record by CW-1 would show that the donors have sought to delegate more powers than they themselves were having under the power of attorneys executed in their favour.
12. Before dealing with the aforesaid contention it would be apposite to reproduce the relevant portion of the aforesaid power of attorneys and same is accordingly reproduced herein below for ready reference:
"I, the undersigned NISHEETH SABAY, VIDE PRESIDENT RETAIL ASSET COLLECTIONS of HDFC Bank Limited, a Banking Company incorporated and registered under the Companies Act, 1956 having its Registered Office at 'HDFC Bank House', Senapati Bapat Marg, Lower Parel(West), Mumbai 400 013(hereinafter referred to as "the Bank"). SEND GREETING:
WHEREAS the Bank had appointed Mr. Aditya Puri, Managing Director as Attorney-in-fact in the name and on CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 11 of 33 behalf of the Bank and delegated certain powers and authorities to him, to be exercised by him subject to the general superintendence, control and directions of the Board of Directors of the Bank ("the Board") by virtue of a Power of Attorney issued on 10th January, 1995 valid up to 30th September, 1999 and subsequently the Power of Attorney was renewed for the period of three years valid up to 29th September, 2002.
AND WHEREAS the Board renewed Power of Attorney granted in favour of Mr Aditya Puri for another period of 3 years with effect from 30th September 2002 and valid up to 29th September 2005 further the said Power of Attorney was renewed with effect from 30th September 2005 valid up to 31st March 2007.
AND WHEREAS the Board of Directors have extended the powers of Mr Aditya Puri, Managing Director to be effective from 1st April, 2007 till 31st March, 2010.
AND WHEREAS the said Mr Aditya Puri by virtue of such powers is authorised Inter alia to substitute and appoint one or more Attorney or Attorneys to exercise for, in the name of and on behalf of the Bank all or any of the powers conferred upon the said Mr Aditya Puri with similar power to substitute and appoint one or more attorney(s), AND WHEREAS the said Aditya Puri by Power of Attorney dated 16th March 2007 hereinafter referred to as "the said Power of Attorney" has appointed Mr. A Rajan-Country Head-Operations to act as the attorney of the Bank to exercise the powers stated in the said Power of Attorney including the power to further delegate the powers and substitute and appoint one or more attorney or attorneys, to exercise the powers that Mr A Rajan can exercise till 31st March 2010.
AND WHEREAS the said A Rajan by virtue of a Power of Attorney dated 18th April 2007 appointed Mr Nisheeth Sahay presently working as Vice President to act as the Attorney of the Bank including the power to further delegate the powers CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 12 of 33 and substitute and appoint, one or more attorney or attorneys, to exercise the powers that Mr. Nisheeth Sahay can exercise till 31st March, 2010.
NOW THESE PRESENTS WITNESSETH that I, the undersigned, NISHEETH SAHAY- VICE PRESIDENT, by virtue and in pursuance of the power and authority in that behalf contained in the said Power of Attorney and of all other authorities thereunto working as Legal Manager, to be the true and lawful Attorney, hereinafter referred to as the "the said Attorney" in fact and at law of and for the Bank, and in the name and on behalf of the Bank, to do the following acts, deeds and things, which I am authorised to do by the said power of attorney in the same manner and as effectually as the Bank or I might do them or any of them, that is to say:"
13. So far as the issue regarding proper proof of the aforesaid power of attorneys by the complainant is concerned, Ld. Counsel for the accused has relied upon a Division Bench Judgment of Hon'ble Delhi High Court in Birla DLW Ltd. v. Prem Engineering Works, 1999(77) DLT 171, wherein it was observed by Hon'ble Delhi High Court as follows:
"We have perused the Power of attorney on record as well as evidence recorded in support thereof. The Original Power of Attorney is stated to be executed by Sh. M.D.Poddar in the presence of one Sh. G.K.Sureka. It is based on a resolution of Board of Directors dated 14.07.1981. Appellant has neither produced on record the resolution of the board of directors which authorized Sh. M.D.Poddar to execute the Power of Attorney, nor Sh. M.D.Poddar or Shri G.K.Sureka appeared as CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 13 of 33 witnesses to prove the execution of the said Power of attorney. Mr. Sarogi, on behalf of the plaintiff, in his statement, did not depose anything about either being familiar with the signatures of Sh. Poddar or the said Power of attorney having been executed by Sh. Poddar in his presence. The Power of attorney was routinely tendered in evidence and exhibited."
14. Thereafter after referring to two other judgments of Hon'ble Delhi High Court in Electric Construction and Equipment Co. Ltd. v. Jagjit Works AIR 1984 Delhi 363 and Syndicate Bank v. M/s S.A.Trading Corpn. & Ors. ILR 1991 Delhi 643 it was further observed by the Court:
" In the instant case, the power of attorney, admittedly, was not executed in the presence of the Notary. The Power of Attorney is stated to be dated 17.07.1981 while the notarial certificate is dated 18.07.1981. It clearly shows that the Power of Attorney was not executed before before the Notary. The endorsement by the notary, stating that he had verified the signatures to be that of Mr. M.D. Poddar, is vague. It does not disclose the basis of such verification. In these circumstances, it cannot be said that the twin requirement of execution and authentication by the notary met so as to draw the presumption of validity under Section 85 of the Indian Evidence Act.
9. From the forgoing it is clear that the plaintiff has failed to produce or prove the resolution of the Board of Directors, authorizing Sh. M.D.Poddar to execute the Power of Attorney. The Power of Attorney itself has not been proved. Mere exhibition of the same would be of no avail."CC No.91/12
HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 14 of 33
15. Thus, a bare perusal of the aforesaid judgment relied upon by Ld. Counsel for the accused would show that the observations in para 9 were made by the Hon'ble Delhi High Court in view of the peculiar facts of the case wherein the presumption under Section 85 of the Indian Evidence Act was found to be not available in as much as there was no authentication by the Notary Public that the power of attorney in that case was executed in his presence, rather, on the contrary the notarial certificate showed that the same was executed by the executant on a day different than its notarization. Similarly, in both the judgments relied upon by Hon'ble Delhi High Court in the aforesaid case, facts of the cases were entirely different from the facts in case in hand, in as much as in Electric Constructions case (supra), the Court was dealing with a power of attorney, date of execution and attestation of which were admittedly different and as such the same could not have been said to be executed before notary public so as to attract the provisions of section 85 Indian Evidence Act and in Syndicate Bank's case (supra) only a copy of power of attorney was produced on record and original power of attorney was never produced in the Court and hence the Court held that the Power of attorney has not been proved as per the provision of Indian CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 15 of 33 Evidence Act. In the case in hand not only the power of attorneys have been executed before notary public but originals have also been produced by the witness in the Court. It is now well settled by a catena of authoritative pronouncements of Hon'ble Supreme Court and of Hon'ble Delhi High Court that a power of attorney duly executed before notary public and authenticated by the Notary would attract the provisions of Section 85 of the Indian Evidence Act and in terms of the aforesaid Section not only there shall be a presumption that the Power of Attorney was duly executed but it shall also be presumed that the executant of the power of attorney was competent to execute the same and in such a case there shall be no need to prove the board resolution on record in favour of the executant of power of attorney, unless the contrary is proved by the opposite party. So far as the authentication within the meaning of Section 85 of the Indian Evidence Act is concerned there is no prescribed proforma for such authentication and it would suffice that it leads to an inference that the Power of attorney sought to be proved on record was in fact executed before the notary public and he had satisfied himself about the identity of the executant and his competency to execute the same. Now in the case in hand, there is no dispute that the CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 16 of 33 power of attorney was executed in the presence of notary public as the same bears the seal of the notary public and before signing the same a stamp has been affixed by the notary public to the effect- "Before me". Moreover, it is not the case of the accused that the power of attorney was executed by the executant on a day other than the date of its notarization as was the case in judgment relied upon by him. Thus, there seems to be no dispute between the parties regarding the fact that power of attorneys were executed by the executants in the presence of notary public and the said fact has been duly authenticated by the Notary public by putting a stamp "before me" and thereafter by putting his signatures alongwith seal of notary public. It is not disputed by the accused that the power of attorneys bear the seal of notary public. Even otherwise in view of provisions of Section 57 of Indian Evidence the Court shall take judicial notice of the aforesaid seal. So far as the issue regarding satisfaction by the notary public about the identity and competence of the executants of aforesaid power of attorneys is concerned, in the absence of any evidence to the contrary, there arises a presumption under Section 114(e) of the Indian Evidence Act regarding regularity of official acts and hence it can safely be presumed that the notary must have CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 17 of 33 satisfied himself about the identity and competency of executants of Power of attorneys Ex. CW-1/A and Ex. CW-1/X. While taking the aforesaid view, I am supported by the Judgment of Hon'ble Supreme Court in Jugraj Singh & Anr vs Jaswant Singh & Ors 1971 SCR (1) 38 wherein it was observed by Hon'ble supreme Court as follows:
"The only complaint was that the Notary Public did not say in his endorsement that Mr. Chawla had been identified to his satisfaction. But that flows from the fact that he endorsed on the document that it had been subscribed and sworn before him. There is a presumption of regularity of official acts and we are satisfied that he must have satisfied him. self in the discharge of his duties that the person who was executing it was the proper person. This makes the second power of attorney valid and effective both under s. 85 of the Indian Evidence Act and s. 33 of the Indian Registration Act."
16. Similarly in Tata Finance Ltd. v. P.S.Mangla & Ors. CS (OS) No. 2569/2000 decided on 11.03.2011 it was observed by Hon'ble Delhi High Court as follows:
"11. A perusal of the photocopy filed by the plaintiff shows that the power of attorney in favour of Mr. Anil Sharma was attested by public notary on 26th July, 2000. Since the power of attorney in favour of Mr. Anil Sharma purports to be attested by a Public Notary, there is a statutory presumption under Section 85 of Evidence Act that the Power of Attorney was executed by the person by whom it purports to have been executed and the person who executed the power of attorney was fully competent CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 18 of 33 in this regard. In Jugraj Singh and Anr. Vs. Jaswant Singh and Ors., AIR 1971 SC 761, the Power of Attorney attested by a Public Notary was disputed on the ground that it did not show on its face that the Notary had satisfied himself about the identity of the executant. Supreme Court held that there was a presumption of regularity of official acts and that the Notary must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. In Rajesh Wadhwa vs. Sushma Govil, AIR 1989, Delhi 144, it was contended before this Court that till it is proved that the person who signed the said power of attorney was duly appointed attorney, the court cannot draw a presumption under Section 57 and 85 of the Evidence Act. Repelling the contention, it was held by this Court that the very purpose of drawing presumption under Sections 57 and 85 of the Evidence Act would be nullified if proof is to be had from the foreign country whether a particular person who had attested the document as a Notary Public of that country is in fact a duly appointed Notary or not. When a seal of the Notary is put on the document, Section 57 of the Evidence Act comes into play and a presumption can be raised regarding the genuineness of the seal of the said Notary, meaning thereby that the said document is presumed to have been attested by a competent Notary of that country. In Punjab National Bank vs. Khajan Singh, AIR 2004 Punjab and Haryana 282, the Power of Attorney in favour of a bank, which had been duly attested, was rejected by the learned District Judge on the ground that the presumption under Section 85 of Evidence Act was available to a particular class of Power of Attorneys described in the section, which was confined to its execution and authenticity alone. The High Court, however, rejected the view taken by the learned District Judge holding that absence of proof of resolution authorizing the executant to execute the Power of Attorney could not be sustained and a presumption in favour of the attorney would arise under Section 85 Act. Hence in this case also, the Court can presume not only that the power of attorney dated 26th July, 2000 was executed by CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 19 of 33 Shri Dilip Sudhakar Pendse, Managing Director of the plaintiff company in favour of Shri Anil Sharma, the then Manager (Law) of the plaintiff company, it can be further presumed that Mr. Dilip Sudhakar Pendse was duly authorized by the plaintiff company to execute a power of attorney in favour of Mr. Anil Sharma. Hence, it was not necessary for the plaintiff company to produce the power of attorney executed by the plaintiff company in favour of Mr. Dilip Sudhakar Pendse, Managing Director of the plaintiff company."
17.Therefore in view of the aforesaid discussions, in my considered opinion, the complainant has duly proved both the power of attorneys Ex. CW-1/A and Ex. CW-1/X on record.
18.Now coming to the second limb of the argument that the aforesaid power of attorneys do not authorize the alleged AR of the complainant to file the present complaint or to depose on behalf of the complainant in as much as the donors have sought to confer more powers on the donee than they themselves were having under the alleged board resolutions. It has been pointed out by Ld. Counsel for the accused that a bare perusal of recitals of the Power of attorney Ex. CW-1/A would show that Mr. A Rajan was authorized vide power of attorney dated 16th March 2007 by Mr. Aditya Puri to exercise the similar powers which were conferred on the later by the bank by way of board resolutions passed from time to time by Board of directors CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 20 of 33 of the complainant bank. However, according to him, though as on 16th March 2007 Mr. Aditya Puri was authorized to exercise the powers on behalf of bank till 31.07.2007, but he has sought to confer the powers on Mr. A Rajan till 31st March 2010 and as such any power of attorney executed by Mr. A Rajan in pursuance of aforesaid powers would not authorize Mr. Nisheeth Sahay to execute the Power of attorney in favour of Mr. Gopal Ranga on 16.07.2008. It is further pointed out by him that even the second power of attorney Ex. CW-1/X also suffers with the same defect and as such the alleged AR of the complainant cannot be said to have been authorized by the complainant to file the present complaint by virtue of any of the aforesaid power of attorneys.
19.On a thoughtful consideration, I fail to agree with the aforesaid submissions made on behalf of the accused. A bare perusal of the recitals would show that there is continuity in the powers of Mr. Aditya Puri from 10.01.1995 to 31.03.2010 without any break in terms of resolutions passed by Board of directors of the Complainant bank from time to time and as such by virtue of power of attorney dated 16.03.2007 he has authorized the Mr. A Rajan to exercise the similar powers till 31.03.2010, who in turn authroized CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 21 of 33 Mr. Nisheeth Sahay to exercise the powers till 31.03.2010 by virtue of power of attorney dated 18.04.2007 and it is in exercise of the aforesaid powers that Mr. Sahay executed the power of Attorney Ex. CW-1/A in favour of Mr. Gopal Ranga. Similar is the case with Power of attorney Ex. CW-1/X. Thus, I do not find any force in the contention of Ld. Counsel for the accused that present complaint has not been filed by duly authorized representative of the complainant particularly in view of the following observations of Hon'ble Supreme Court in United Bank of India v. Naresh Kumar & Ors. AIR 1997 SC 3:
"9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable."
20. Now coming to the next issue sought to be raised by Ld. Counsel for the accused, whereby, he has objected to the maintainability of present CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 22 of 33 complaint for want of proof of service of legal notice. According to him, the complainant has neither proved the service of legal notice upon the accused nor the requisite facts for drawing the presumptions under Section 27 of the General Clauses Act in as much as it has even failed to prove on record that the legal notice was dispatched to the correct address of the accused. He has further pointed out in this regard that the postal receipt placed on record does not contain the complete address of the accused rendering it difficult to raise the presumption in terms of Section 27 of the General Clause Act. I do not agree with the submissions made on behalf of the accused on twin grounds. Firstly, it is a matter of common knowledge that in the postal receipts complete address of the addressee is rarely mentioned by the postal department probably due to lack of space provided in such receipts and it is not denied by the accused that address mentioned in legal notice as well as in the complaint was not his correct address. In view of the aforesaid facts, the Court may presume in terms of Section 114 of the Evidence Act that in the ordinary Course the notice must have been dispatched by the Counsel for complainant to the same address which has been mentioned in the legal notice and if that be so, then the notice was dispatched by the CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 23 of 33 complainant/counsel to correct address of accused by prepaying the postal charges and as such there arises a presumption in favour of the complainant regarding due service of same upon the accused in terms of Section 27 General Clauses Act and section 114(e) of the Indian Evidence Act. Secondly, such a defence is not available to the accused at this stage in view of Authoritative pronouncement of three Judge Bench of Hon'ble Supreme Court in CC Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555, since the accused has failed to tender the payment equal to cheque amount in question within 15 days from the receipt of summons from this Court. It has been observed by Hon'ble supreme Court in CC Alavi Haji's case (supra):
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 24 of 33 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [(1999) 7 SCC 510 : 1999 SCC (Cri) 1284] if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
21. In view of the aforesaid observations made by a three judge bench of Hon'ble Supreme Court of India, in my considered opinion, reliance by Ld. Counsel for the accused on the judgment reported as Sridhar M.A. v. Metalloy N. Steel Corporation, 1999(98) Comp Cases 805 SC is highly misplaced.
22. It is next contended by Ld. Counsel for the accused that the complainant has failed to prove that the cheque in question was issued by accused in favour of the complainant in discharge of his liability under loan agreement in question despite categorical stand taken by the accused the cheque in question was handed over by him to the complainant as blank signed security cheque for signature's verification under some other agreement executed between the parties and not under loan agreement in CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 25 of 33 question. According to him, the aforesaid defence is probablized by the accused in view of the fact that admittedly no cheque bounce charges have been debited by the complainant in the statement of loan account of the accused with respect to dishonour of the cheque in question, which, according to him, suggests that the cheque was never presented by the complainant under the loan account in question of the accused. It is further submitted by him that issuance of cheque by the accused in favour of M/s Centurion Bank of Punjab despite the fact that aforesaid bank had already amalgamated in the year 2008 also casts serious doubts about the veracity of the complainant's case in as much as no prudent person would ever accept the cheque in the name of person/company who is not in existence as on the date of issuance of cheque. It is further pointed out by him that complainant has failed to explain as to why cheque of Rs.48018/- was issued by the accused in favour of the complainant in view of the fact that EMI under the loan agreement in question was of Rs.8003/- only and mode of repayment by accused was ECS and not the cheque. He further submits that adverse inference can also be drawn against the complainant in view of the fact that complainant has failed to produce loan agreement in question as CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 26 of 33 well as statement of loan account of accused.
23. On the other hand, it is contended by Ld. Counsel for the complainant that in view of admissions of the accused regarding his liability under the loan agreement in question towards the complainant and his signatures on the cheque in question, there arises a presumption in favour of the complainant that the cheque in question was issued by the accused in favour of M/s Centurion Bank of Punjab, which had already been merged with the complainant, in discharge of his liability under the loan agreement in question. He further submits that unless the aforesaid presumption is rebutted by the accused it was not incumbent upon the complainant to prove on record the existence of liability of the accused by producing the loan agreement in question or the statement of loan account of accused. He further submits that the accused has failed to lead any evidence in support of his sole defence that the cheque in question has been handed over by him to the complainant under some other loan agreement either as security or for signatures verification, rather, according to him, the accused has contradicted himself on the aforesaid aspect during his cross examination. CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 27 of 33
24.I have considered the submissions made on behalf of both the parties and have perused the record and I do find substantial force in the submissions made by Ld. Counsel for the complainant. A perusal of the material available on record would show that accused has not denied the availing of loan in question by him from M/s Centurion Bank of Punjab under the loan agreement in question, nor has he denied the terms and conditions of repayment of the same. Admittedly he has not made the entire repayment against the aforesaid loan. He has proved the payment of only 9 EMIs under the aforesaid loan and admitted that he does not have any proof with respect to more payments. Admittedly, one EMI under the loan agreement in question was of Rs. 8003/- and hence the cheque which is of Rs. 48018/- seems to have been issued for repayment of 6 EMIs of Rs. 8003/- each. The accused has also admitted the knowledge of factum of amalgamation of M/s Centurion Bank of Punjab with the complainant bank. It is submitted by Ld. Counsel for the complainant that after amalgamation of M/s Centurion Bank of Punjab with M/s HDFC Bank Ltd. any cheque in favour of the former bank would be presented and encashed in the account of M/s HDFC Bank CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 28 of 33 Ltd. And since the accused had availed the loan from M/s Centurion bank of Punjab, it is quite natural that for his satisfaction he would have issued the cheque in favour of the same bank despite his knowledge about the amalgamation and there was no cause for the complainant bank to raise any objection in this regard since the complainant was pretty sure about its encashment in the account of M/s HDFC Bank Ltd. in view of scheme of amalgamation of the two banks having been approved by none other than the Reserve Bank of India. Therefore, in view of the aforesaid submissions made on behalf of the complainant, merely because the cheque is in the name of a bank which had already been amalgamated with the complainant bank on the date mentioned on it would not mean, without anything more, that the cheque must have been handed over by the accused to M/s Centurion bank of Punjab/complainant bank as a blank signed security cheque or for signatures verification.
25.The accused has also not denied his signatures on the cheque in question and as such in view of the aforesaid admitted facts there arise presumptions in favour of the complainant in terms of sections 118(a) and 139 of the NI Act that the cheque must have been issued by the accused in favour of the CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 29 of 33 complainant for consideration and in discharge of his liability towards the complainant. No doubt the aforesaid presumptions are rebuttable in nature, however, in my considered opinion, the accused has failed to rebut the same even by preponderance of probabilities. No doubt the accused has examined himself as DW-1 and has deposed during his examination in chief that the cheque in question was handed over by him to the complainant as a blank signed security cheque for signatures verification under some loan agreement other than the loan agreement relied upon by the complainant. However, the aforesaid testimony of the accused could not withstood the test of scrutiny by way of cross examination conducted by Ld. Counsel for the complainant and during his cross examination the accused has contradicted himself and stated that the cheque in question was in fact handed over by him to the complainant for the aforesaid purposes under the loan agreement in question and not under any other loan agreement. Thus, in view of aforesaid contradictions, which goes to the root of matter, I do not find the testimony of accused at all reliable and if the same is discarded the accused cannot be said to have rebutted the presumption even by way of cross examination of CW-1.
CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 30 of 33
26.In view of authoritative pronouncement of a three Judge bench of Hon'ble Supreme Court in Rangappa v. Sri Mohan (2010) 11 SCC 441 it was not incumbent upon the complainant to prove the liability of accused towards the complainant unless the initial onus is discharged by the accused, more so, when the accused has not even disputed that he had availed the loan in question from M/s Centurion Bank of Punjab and its terms and conditions of repayment. Mere non-production of books of accounts and loan agreement in question by the complainant would not permit the Court to draw any adverse inference against the complainant in terms of Section 114(g) of Indian Evidence Act since the accused has never sought any direction from the Court to the complainant for production of the same. Moreover, non- debiting of the cheque bounce charges would not give rise to an inference that the cheque in question was never presented by the complainant under the loan account in question, particularly in view of the fact that not only the loan account number has been specifically mentioned on the back side of the cheque but also the Counsel for complainant has offered a satisfactory explanation for the same. It is submitted by Ld. Counsel for the complainant that as per the policy of complainant bank when the mode of repayment of CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 31 of 33 loan by a customer is ECS and the charges have already been debited by the complainant on account of failure of ECS transaction, in order to avoid the multiplicity of charges and in order to relieve the customers of burden of excessive charges, no charges for dishonour of cheques given by the customers/borrowers towards overdue installments are being debited in the loan account of borrowers.
27.In view of the aforesaid discussions, in my considered opinion, the accused has failed to rebut the presumptions arising in favour of Complainant under Sections 118(a) and 139 of the NI Act. Reliance placed by Ld. Counsel for the accused on the judgment of Hon'ble Bombay High Court in Shri Prabhakar Rauji Shet v. Ms. Shrikanti M. arolkar & Anr., 2010 (1) DCR 7 is highly misplaced in as much as in the aforesaid judgment circumstances brought on record by the accused from cross examination of complainant were found to be sufficient by the Court to displace the presumption available to the complainant in terms of Sections 118 and 139 of the Act and it was in view of the aforesaid finding that the Court observed that it was entirely for the complainant to have proved that the subject cheque was issued towards discharge of the debt owed by the accused to the CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 32 of 33 complainant. While in the case in hand it has already been observed by this Court that the accused has failed to displace the aforesaid presumptions under Section 118(a) and 139 of the NI Act. Similarly, there is no dispute about the proposition of law laid down in the judgment of Hon'ble Punjab and Haryana High Court in Karamvir v. Ms. Anita Sharma, 2011(1) DCR 135 that when two views are possible then version in favour of accused is to be accepted, however, in view of the aforesaid discussions, I do not find that any two views are possible in the peculiar facts of case in hand.
28. In view of the aforesaid discussions, accused is convicted of charges under Section 138 of Negotiable Instruments Act, 1881(as amended upto date).
29. Ordered Accordingly.
Pronounced in the Open Court on this 4th day of September, 2013. This Judgment consists of 33 signed pages.
(ARUN KUMAR) Metropolitan Magistrate:Dwarka Courts CC No.91/12 HDFC Bank Ltd v. Onkar Singh Kalra Judgment dated 04.09.2013 Page 33 of 33