Delhi District Court
Hdfc Bank Ltd. vs Rajinder Sharma on 22 February, 2013
IN THE COURT OF SHRI ABHILASH MALHOTRA:METROPOLITAN
MAGISTRATE:DWARKA COURTS:NEW DELHI
CC. No. 652/12
Unique Case ID No. : 02405R011817
HDFC Bank Ltd.
Having its Office at :
IInd Floor, Express Building,
9-10, Bahadur Shah Zafar Marg,
New Delhi - 110002.
......... Complainant
VERSUS
Rajinder Sharma
Prop. Of : Northern Scales Company,
1st Floor, Khanna Talkies, Paharganj,
Delhi - 110055.
Also at :
B-64, Sector -30, Noida -201301
....... Accused
Offence complained of or proved : Under Section 138 of Negotiable
Instruments Act, 1881.
Plea of the Accused : Pleaded not guilty
Date of filing : 12.07.2010
Date of Institution : 23.07.2010
Date of reserving judgment/order : 19.02.2013
Final order/Judgment : Accused is acquitted
Date of pronouncement of judgment : 22.02.2013
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:-
1. The present complaint has been filed U/s 138 Negotiable Instruments Act, 1881. Complainant is a banking company. Complaint has been filed by Sh. Alok Sharma, Authorized Representative of the complainant. Later on Authorized Representative was HDFC Bank Ltd. Vs Rajinder Sharma CC. No. 652/12 Page No. 1/8 Judgment dated 22.02.2013 substituted vide order dated 02.11.2012 and Mr. Somesh Sundriyal was appointed as Authorized Representative in present case.
2. It is the case of complainant that accused represented himself as proprietor of M/s Northern Scales Company and approached the complainant for availing CBL personal loan. The said loan was granted to the accused and agreement bearing no. 91197835 was executed. The accused agreed to pay the loan agreement in installment. Against payment of dues accumulated on account of non payment of monthly installments accused issued cheque in question bearing no. 195552 dated 10.05.2010 of Rs. 75,900/- drawn on Punjab National Bank, Nizamuddin West, New Delhi - 110013. The said cheque was dishonored due to reason 'funds insufficient' vide cheque return memo dated 10.05.2010. Complainant sent legal notice dated 29.05.2010 vide speed post and UPC demanding the cheque amount. On failure of the accused to make the payment the present complaint case has been filed.
3. Accused was summoned by my Ld. Predecessor vide order dated 26.10.2010. The notice U/s 251 Cr.PC. was framed on 25.02.2012 and accusations U/s 138 NI Act were explained to the accused. Accused pleaded not guilty and claimed trial. File was received by way of transfer to this court on 12.03.2012. On 21.05.2012 the application U/s 91 Cr.PC. seeking supply of certain documents moved by accused was allowed unopposed. On 04.10.2012 the application U/s 145(2) N.I. Act was allowed and it was directed that the case be further tried as summons trial case.
4. In order to discharge his onus the complainant has examined CW1 Sh. Somesh Sundariyal and he has relied upon documents Ex. CW1/B Power of attorney dated 15.10.2012, documents Ex. CW1/1 to Ex. CW1/6(Colly)(OSR) and Mark 'X' (Colly). Ex. CW1/1 is the cheque in question. Ex. CW1/2 is bank memo dated 10.05.2010, Ex. CW1/3 is legal notice dated 29.05.2010, Ex. CW1/4 and Ex. CW1/5 are postal receipts, HDFC Bank Ltd. Vs Rajinder Sharma CC. No. 652/12 Page No. 2/8 Judgment dated 22.02.2013 Ex. CW1/6(Colly) is loan application form and loan agreement. Mark 'X' is Certified Copy of Board Resolution. Statement of accused U/s 313 Cr.PC. was recorded on 14.01.2013. Accused has not lead any defence evidence in present case.
5. I have heard the parties and perused the record. It is the case of the accused that he has not received legal notice. It is also argued that the particulars on the cheque except signature are not filled by the accused. It is argued that the accused availed the loan agreement no. 1197835 and not the loan agreement no. 91197835 as stated in the complaint. It is also argued that the cheque in question was a blank signed security cheque issued by the accused to M/s Centurian Bank of Punjab and it has been misutilised by the complainant bank.
6. So far as the first contention regarding non receipt of legal notice is concerned, I am afraid that accused has not been able to establish this defence. The address on the legal notice Ex. CW1/3 is not denied by the accused. The said notice has been sent at the last known address of the accused through Pre Paid post Ex. CW1/4 and Ex. CW1/5. The presumption as to delivery is attracted U/s 27, General Clause Act, 1897. Apart from it accused has failed to avail the opportunity to pay the cheque amount within 15 days of receipt of summons from this court as mandated in the case of C.C. Alavi Haji vs Palapetty Muhammed & Anr, (2007) 6 SCC 555. The relevant portion from the judgment in the case of C.C. Alavi Haji (Supra) is reproduced below:
"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 HDFC Bank Ltd. Vs Rajinder Sharma CC. No. 652/12 Page No. 3/8 Judgment dated 22.02.2013 was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. 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 Bhaskarans case (supra), 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."
7. Accused has also taken a defence that particulars on the cheque except the signatures are not filled by him. The Hon'ble High Court of Delhi in case of Ravi Chopra vs State And Anr, 2008 (102) DRJ 147 has held that:
"18. Section 20 NI Act talks of "inchoate stamped instruments" and states that if a person signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp." Section 49 permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument "by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque, it makes it clear that by doing that the holder does not thereby incurred the responsibility of an endorser." Likewise Section 86 states that where the holder acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent has not been obtained to such acceptance would stand discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance. Section 125 NI Act permits the holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purposes of presentation for payment. These provisions indicate that under the scheme of the NI Act an incomplete cheque which is subsequently filled up as to the name, date and amount is not rendered void only because it was so done after the cheque was signed and delivered to the holder in due course.
20. A collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and HDFC Bank Ltd. Vs Rajinder Sharma CC. No. 652/12 Page No. 4/8 Judgment dated 22.02.2013 consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a 'material alteration' for the purposes of Section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. Therefore as long as the cheque has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purposes of Section 87 NI Act."
8. In M/S The Jammu & Kashmir Bank vs Abhishek Mittal, Crl. A. No. 294/2011, Hon'ble High Court of Delhi held that:
"6. In this case, issuance of cheque, its presentation and dishonorment are not in dispute, inasmuch as, the same has been duly proved on the basis of cogent evidence. In his statement under Section 313 Cr.P.C., respondent has admitted having handed over the cheques to Shri Jitender Sharma with whom he has alleged that he was having friendly relations. It may be noted here that Shri Jitender Sharma was Branch Manager of the appellant. The plea taken by the respondent that the blank cheques had been given by him is of no consequence. Respondent has admitted his signatures on the cheques. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Respondent has not denied his signatures on the cheques. Once he has admitted his signatures on the cheques he cannot escape his liability on the ground that the same has not been filled in by him. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him. As regards handing over of the cheques to the appellant is concerned, same is not in dispute since respondent has admitted that he had handed over the cheques to Shri Jitender Sharma, who happens to be Branch Manager of the appellant at the relevant time. Cheques had been drawn in favour of "J & K Bank Ltd. A/c Akansha Machine Tools". This shows that cheques had been issued to discharge liability of the said firm."
9. In view of the law laid down in the aforesaid cases, I am afraid that the defence HDFC Bank Ltd. Vs Rajinder Sharma CC. No. 652/12 Page No. 5/8 Judgment dated 22.02.2013 that the other particulars on the cheque are not filled by the accused do not lie once the signature are admitted. Moreover, the accused has failed to lead any evidence to show that there is any material alteration in the cheque.
10. Accused has also argued that the complainant mentioned the loan account no. as 91197835 but the actual loan account no. is 1197835. It is also argued that the loan applied was for Rs. 5,00,000/- but complainant failed to explain why the loan of Rs. 5,26,219/- has been given to the accused. In this regard accused has relied upon document Ex. CW1/6 (Colly). So far as the question regarding the loan account number is concerned, the document Ex. CW1/6(Colly) shows that the loan account no. is 1197835. It is admitted position that accused has taken loan from the complainant. Accused has not disputed his signature at different points in document Ex. CW1/6 (Colly).Therefore, the mismatch in loan account number to my understanding is merely a typographically error. So far as the sanction of loan amount is concerned, accused has failed to lead any evidence to rebut the document Ex. CW1/6(Colly) and show that he has not availed any loan from the complainant. Moreover, what is relevant in the present case is not loan amount but the quantum of liability of accused on the date of cheque.
11. Accused has vehemently argued that cheque in question is a security cheque which was given as blank signed cheque to Centurian Bank of Punjab two days before the sanctioning of loan. Before proceeding further, it would be relevant to look into the law laid down by Hon'ble High Court of Delhi in respect of security cheque. In case of DEEPAK VIG vs AVDESH MITTAL, CRL.M.C. 1136/2011 it was observed that :
"7. Section 138 of the Act provides that wherein any cheque was drawn by a person for the payment of any amount of money to another person for the discharge, in whole or in part, of any debt or other liability, and it was returned by the drawer bank because the amount in the drawer's account was insufficient to honour the cheque HDFC Bank Ltd. Vs Rajinder Sharma CC. No. 652/12 Page No. 6/8 Judgment dated 22.02.2013 or it exceeded the amount arranged to be paid to such persons, shall be deemed to have committed offence. Of course, before the offence is deemed to be committed, various other conditions are also required to be fulfilled with which this court is not concerned for the decision in the instant case. The important ingredient under section 138 of the Act with which we are concerned in this case is that the cheque must have been issued in discharge of in whole or in part of any debt or other liability. A plain reading of this provision would mean that if the cheque is not issued for the discharge of any debt or other liability, this section could not be invoked. It is trite that if the cheque is issued only as security for the performance of certain contract or agreement and not towards discharge of any debt or any other liability, the offence under section 138 of the Act is not attracted. In the case of M.S Narayana Menon (Supra) the accused as also the complainant were stock brokers. The complainant entered into certain transactions on behalf of the accused.Cheque issued by the accused in favour of the complainant was dishonoured. The plea that was taken by the accused was that the complainant was in dire need of financial assistance and the said cheque was issued to enable him to tide over his financial necessities and it was not in discharge of any debt or liability payable to the complainant. The Supreme Court held that the defence is acceptable as probable and the cheque could not be said to have been issued in discharge of a debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the preview of section 138 of the Act......."
12. The cheque in present case has been drawn in favour of M/s Centurian Bank of Punjab. CW1 in his testimony has stated that he do not know when the cheque in question Ex. CW1/1 was given by the accused to the complainant. However, the order sheet dated 23.07.2010 shows that the earlier Authorized Representative of the complainant has stated before the court that the cheque in question Ex. CW1/1 was submitted by the accused with the complainant on the date mentioned on the cheque i.e. on 10.05.2010. He has also stated that M/s Centurian Bank of Punjab has merged with the complainant bank on 23.05.2008. It is not understood in case 'M/s Centurian Bank of Punjab' has merged with 'HDFC Bank' on 23.05.2008 why the cheque has been drawn in favour of 'M/s Centurian Bank of Punjab' especially when it is dated 10.05.2010. CW1 has expressed obliviousness to this relevant fact and has failed to give any sufficient explanation. It is quite unnatural that the complainant bank would HDFC Bank Ltd. Vs Rajinder Sharma CC. No. 652/12 Page No. 7/8 Judgment dated 22.02.2013 accept the cheques from its customers in favour of ' M/s Centurian Bank of Punjab' even after two years of its merger with the complainant bank. The word "SPDC MUM"
stamped at back of cheque also goes to show that cheque is a security cheque. The circumstances in their preponderance only leads to the inference that the cheque in question was given as blank signed security cheque by the accused to M/s Centurian Bank of Punjab' which has been misutilised by the complainant. As the cheque in question Ex. CW1/1 is a security cheque therefore the liability U/s 138 NI Act, 1881 is not attracted and the offence is not made out. Apart from the aforesaid, it would be also relevant to observe here that the testimony of CW1 is also shaky in respect of the amount due on the date of cheque. He has firstly stated that the cheque in question is for around five unpaid installments but later on he has stated that the cheque in question is for entire loan amount. Complainant has also failed to file any statement of account on record to show the liability of accused on the date of cheque. The accused has been able to rebut the presumption U/s 139 NI Act,1881 successfully. Complainant has failed to establish the case beyond reasonable doubt. Accordingly, the accused is acquitted and set at liberty.
File be consigned to record room as per rules.
Announced in the open (ABHILASH MALHOTRA)
court on 22.02.2013 MM-06/Dwarka Courts,
New Delhi/22.02.2013
HDFC Bank Ltd. Vs Rajinder Sharma
CC. No. 652/12 Page No. 8/8
Judgment dated 22.02.2013