Delhi District Court
Barclays Investments And Loans [India] ... vs Rakesh Passi on 10 April, 2012
IN THE COURT OF SH.NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE,
SPECIAL COURT06, DWARKA COURTS, NEW DELHI.
BARCLAYS INVESTMENTS AND LOANS [INDIA] LTD.
VERSUS
RAKESH PASSI
P.S.: SUBZI MANDI
U/S: 138 NEGOTIABLE INSTRUMENTS ACT
1.Serial No./CC No. of the : 26285/1 case
2. Name of the complainant : Barclays Bank PLC, Eros Corporate Tower, Nehru Place, Delhi - 110 0019
3. Date of institution : 23.02.2010
4. Name of the accused, his : Rakesh Passi parentage and residence 9/1014, New Post Office Road, Gandhi Nagar, New Delhi - 110 031
5. Date when judgment was :
reserved 14.03.2012
6. Date when judgment was : 10.04.2012
pronounced
7. Offence complained of : Section 138 Negotiable Instruments Act and proved
8. Plea of accused : Pleaded not guilty and claimed trial
9. Final Judgment : Accused is acquitted of the offence under section 25 of Payment and Settlement Systems Act.
CC.No.26285/1 Page no. 1 of 20
:J U D G M E N T:
1 Vide this judgment, I shall decide the present complaint filed by the complainant
Barclays Bank PLC under Section 25 of Payment of Settlement and Systems Act [herein after referred to as PSSA] against the accused Rakesh Passi. 2 Thumbnail sketch of the case is that on the request of the accused the complainant vide loan agreement no. 0000033336 had granted the personal loan facility to the accused which was to be repaid by the accused alongwith interest in EMI's. It is further averred that accused towards the repayment of EMI had agreed for electronic clearing service of funds from his bank account No. 832 maintained with Bank of India bearing MICR No. 110013251 and an amount of Rs. 11153/ was to be transferred every month. However, the electronics fund transfer initiated by the accused, in respect of the equated monthly installment for the month January, 2010 amounting to Rs. 11153/ could not be executed/realized on the ground of Insufficient Balance in the bank account of the accused. The intimation of such dishonour of electronic funds transfer had been received by the complaint Bank vide transaction no. TXBA2770420 dated 04.01.2010 issued by Indiaideas.com Ltd. Mumbai, which is duly registered with RBI for Electronic Clearing ServiceDebit clearing as a user institution. Thereafter, complainant sent to the accused the demand notice dt. 13.01.2012 (posted on 15.01.2010) through speed post demanding the payment of the aforesaid cheque within 15 days of the receipt of the notice. Since, the accused had failed to pay the aforesaid cheque amount, therefore, an offence under Section 25 of Payment & Settlement Systems Act is deemed to have been committed by the accused for the prosecution of which the present complaint is filed by the complainant. 3 After taking cognizance of the offence summons was issued to the accused post which accused entered appearance and was admitted to bail on CC.No.26285/1 Page no. 2 of 20 09.03.2011.Thereafter, notice under Section 251 Cr.P.C encompassing all the accusations against the accused was served upon the accused to which he pleaded not guilty and specified his defence. Thereafter, matter got fixed for Defence Evidence. 4 In the meanwhile, accused moved an application under Section 145 (2) of Negotiable Instruments Act (as applicable to PSSA) for recalling the complainant witness for cross examination. The said application was allowed and matter got fixed for examination of the complainant witness.
5 In complainant's evidence , the complainant got examined CW1, that is Authorized Representative (for short AR) for the complainant who tendered his evidence by way of affidavit which is Ex.CW1/1. Other documents relied upon by CW1 are power of attorney Ex.CW1/1, original memo of the dishonoured electronic funds transfer is ExCW1/2, legal notice and postal receipts are Ex.CW1/3 and Ex.CW1/4. In his cross examination CW1 stated that he was working in Barclays Bank, Nehru Place, Delhi as Associate Legal Manager. CW1 further stated that the branch in which he was working presently deals in various banking operations including disbursement of loan and that the alleged loan was disbursed by the Nehru place branch in June 2007 for Rs.3,73,000/ approximately. CW1 stated that he joined Nehru Place branch at around December 2008 January 2009. CW1 further stated that he does not have any personal knowledge of disbursement of the alleged loan and stated that accused has authorised the complainant by signing an ECS mandate form to debit his account for the repayment of the alleged loan. CW1 stated that the mandate does not bear the signature and seal of the bank as the documents itself belongs to the bank as the logo of the bank is inscribed on the left hand upper corner of the mandate form and that the ECS mandate form was not signed by the accused in front of him. CW1 denied the suggestion that ECS mandate form was not signed by the accused. CW1 stated that mandate form Ex.CW1/5 does not specify as for CC.No.26285/1 Page no. 3 of 20 how many months the ECS amount has to be deducted from the accused bank which is the HP State Co OP. Bank Ltd., but volunteered that at the time of disbursement of the loan the tenure of the loan was decided by parties mutually for 48 months. CW1 admitted that no document has been filed by which the tenure of ECS deduction can be specified. CW1 denied the suggestion that the legal demand notice dated 13.01.2010 was never received by the accused. CW1 stated that the proof of sending of legal notice is already Ex. CW1/4 and the internet generated report of the delivery is on record but no acknowledgment by the accused is on record. CW1 stated that he was authorised by Mr. Ramnathan Gopal Krishnan in Mumbai but he does not remember when the power of attorney was handed over to him. CW1 stated that the power of attorney was signed by Mr. Ramnathan Gopal Krishnan in his presence on the date mentioned in the power of attorney i.e. 05.10.2010. Then cross examination was deferred for want of statement of account, which was produced and exhibited as Ex.CW1/6. In further cross examination , CW1 deposed that till date the complainant was relying only on the documents which are exhibited on the court record. CW1 deposed that the statement of account which is Ex.CW1/6 belongs to the branch of Nehru Place, Delhi and pertains to the period of June, 2007 to January, 2011.CW1 stated that he cannot tell who was the Branch Manager or the Principal Accountant of the abovesaid branch the time of the alleged transaction in question i.e January, 2010.CW1 further stated that he cannot tell who has fed the data in the computer in respect of this statement of account. CW1 stated that he cannot tell whether the data in the computer in respect of this statement of account which is Ex.CW1/6 can be amended and admitted that no certificate is placed in the record file to the effect that the data contained in Ex.CW1/6 has not been amended/altered or changed but volunteered that as this is given by the employee of the bank whose seal and signature is there on the Ex.CW1/6. CW1 stated that Mr. Raman Sachdeva, who has signed the Ex.CW1/6 is the operations manager in the bank. CW1 deposed that there is CC.No.26285/1 Page no. 4 of 20 an entry which is marked 'A' for the presentment of the alleged ECS.CW1 further stated that the statement of account Ex.CW1/6 is reducing balance statement of account. CW1 stated that On 4th January, 2011 the total liability of the accused towards the complainant bank was the principal outstanding of Rs.1,89,910/ and the interest of Rs. 29,583/ the total of the same is Rs.2,19,493/.CW1 denied the suggestion that the bank has never presented the ECS due to which there is no entry with regard to presentment and also with regard to bouncing charges. CW1 stated that a document whereby the accused has authorised the bank to debit his account for the alleged transaction on January, 2010 is the ECS mandate form Ex.CW1/5 which shows the accused himself has signed this particular document to deduct the ECS of the specific amount mentioned in the ECS form and also from his specific account of the other bank through which the ECS has to be deducted and the ECS mandate form does not give the tenure of the loan, however in order to know the actual tenure of the loan the complainant has a separate statement of account which is Ex.CW1/6. CW1 stated that the authorization is given by the accused whenever the formalities of the loan documents is completed between the party and the bank. CW1 further stated that as per the statement of account the tenure of the loan is 48 months and the same is shown in the 3rd column 21.06.2007 where the disbursement of the loan is given Rs. 3,73,000/ [Marked 'B'].Lastly , CW1 denied the suggestion that he was deposing falsely. Complainant's evidence stood closed vide order dated 21.12.2011. 6 Complainant's evidence was followed by statement of accused under Section 313 Cr.P.C wherein accused stated that he did not remember whether he has availed personal loan of Rs.3,73,000/ approximately from the complainant vide loan account no. 33336 in the year 2007. Accused also stated that he did not remember as to whether he agreed for electronic clearing service funds from your bank account no. 832 bearing MICR No. 110013251 maintained with Bank of India and an amount of Rs.11153/ was to be transferred every month by signing the ECS mandate form which is Ex.CW1/5 and also CC.No.26285/1 Page no. 5 of 20 denied his signature on the ECS mandate form. Accused also stated that he did not know the fact that the electronic funds transfer initiated by the complainant in respect of the equated monthly installment for the month of January, 2010 amounting to Rs. 11,153/ could not be executed on the grounds of insufficient balance in your account. Accused denied to have received any legal notice and stated that his address starts from nine in roman words and not in numerical as given in the complaint and in that case any correspondence will be sent/received at some other address. Accused also stated that he has been living at the address given by him in his details since birth. Lastly , he stated that he wanted to lead defence evidence and matter was posted for defence evidence. But on the date fixed , accused intended not to lead any evidence and consequently defence evidence stood closed on 03.03.2012 and matter got fixed for final arguments. 7 Learned counsel for complainant Ms. Aparna and learned counsel for accused Ms. Shikha addressed their respective final arguments at length. Before appreciating the evidences and arguments of both the parties, it would be appropriate to advert to the relevant provisions of Payment of Systems and Settlements Act , 2007.
Section 25 of the Act reads as under:
(l) Where an electronic funds transfer initiated by a person from an account maintained by him cannot be executed on the ground that the amount of money standing to the credit of that account is insufficient to honour the transfer instruction or that it exceeds the amount arranged to be paid from that account by an agreement made with a bank,such person shall be deemed to have committed an offence and shalt,without prejudice to any other provisions of this act, be punished with imprisonment for a term which may be extend to two years, or with fine which may extend to twice the amount of the electronic funds transfer, or with both:
Provided that nothing contained in this section shall apply unless CC.No.26285/1 Page no. 6 of 20
(a) the electronic funds transfer was initiated for payment of any any amount of money to another person for the discharge ,in whole or in part, of any debt or other liability;
(b) the electronic funds transfer was initiated in accordance with the relevant procedural guidelines issued by the system provider;
(c) the beneficiary makes a demand for the payment of the said amount of money by giving a notice in writing to the person initiating the electronic funds transfer within thirty days of the receipt of information by him from the bank concerned regarding the dishonour of the electronic funds transfer; and
(d) the person initiating the the electronic funds transfer fails to make the payment of the said money to the beneficiary within thirty days of the receipt of the said notice, (2) It shall be presumed ,unless the contrary is proved, that the electronic funds transfer was initiated for the discharge,in whole or in part, of any debt or other liability.
(3) It shall not be defence in a prosecution for an offence under subsection(I) that the person, who initiated the electronic funds transfer through an instruction, authorisation, order or agreement, did not have reason to believe at the time of such instruction,authorisation,order or agreement that the credit of his account is insufficent to effect the electronic funds transfer.
(4) The Court shall,in respect of every proceeding under this section,on production of a communication from the bank denoting the dishonour of electronic funds transfer ,presume the fact of dishonour of such electronic funds transfer ,unless and until such fact is disproved.
(5) The provisions of Chapter XVII of the Negotiable instruments Act,1881,shall apply to the dishonour of electronic funds transfer to the extend the circumstances admit.
Explanation For the purposes of this section,"debt or other liability" means a legally enforceable debt or other liabilty, as the case may be.
CC.No.26285/1 Page no. 7 of 20 8 Learned counsel for the complainant has contended that accused availed
personal loan from the complainant and towards the repayment of the EMI , accused had agreed for Electronic Clearing Service(ECS) of funds from his Bank account and an amount of Rs 11153/was to be transferred every month. However , the ECS initiated in respect of the equated monthly installment for the month of January 2010 amounting Rs 11153/ could not be executed on the ground of Insufficient Balance in the account of the accused. It is further contended that on the dishonour of the said Electronic Funds Transfer , complainant got sent a legal notice demanding the payment which accused failed to pay thereby committing offence under section 25(1) of the Payment and Settlement Systems Act.
9 In retort , learned counsel for the accused raised following contentions. Firstly , power of attorney of the complainant is not valid and therefore complaint is not maintainable. Secondly , execution of the ECS mandate form by the accused is not duly proved. Thirdly , the statement of account filed by the complainant is not proved in accordance with the provisions of the bankers books Evidence Act , 1891.Lastly , complainant bank has failed to prove that accused had any debt or any liability to make the alleged payment of Rs 11,153/ for the month of January.
10 I have perused the records of the case giving consideration to the submissions of the counsels.
Before deliberating upon the submission of learned counsels, it will be useful to refer to the relevant paragraphs of the Judgment of the Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde (1) Apex Court Judgments 412 SC. Para 31 reads as under...
"31. The courts below, as notice hereinbefore, proceeded on the basis that section 139 raises a presumption in regard to existence of CC.No.26285/1 Page no. 8 of 20 a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct" (Emphasis added)
11 The Apex Court thus reiterated well established legal position that for rebutting the presumption under section 139 of the said Act, it is not necessary in every case for the accused to step into the witness box. The Apex Court held that the standard of proof on the part of the accused and that of prosecution to prove a case is different. The prosecution has to prove the guilt of an accused beyond reasonable doubt, but the standard of proof so as to prove a defence is "preponderance of probability". Inference of preponderance of probabilities can be drawn even by reference to circumstances. In paragraph 44 the Apex Court observed thus : "The presumption of innocence is a human right (see Narendra Singh v. State of M.P., Ranjitsing Brahmajeetsing Sharma V. State of Maharashtra and Rajesh Rajan Yadav V. CBI) Article 6 (2) of the European Convention on Human Rights provides :
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." Although, India is not bound by the aforementioned convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused's rights and the interest of the society is required to be taken into consideration. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned purpose the nature of the offence, seriousness as also gravity thereof may be taken into consideration. The courts must be on guard to see that merely on the application of presumption as contemplated under section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction........." (Emphasis added).
In paragraph 45 the Apex Court held thus:
CC.No.26285/1 Page no. 9 of 20 "45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as human rights and the doctrine of reverse burden introduces by section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
(Emphasis added) 12 Thus, what has been held by Apex court is that presumption of innocence forms part of human rights and therefore the doctrine of reverse burden introduced by section 139 has to be delicately balanced.
13 Thus, it is amply clear from the above mentioned Judgment of Apex Court that for proving his case accused need not in every case step into the witness box to adduce defence evidence. He can rely on the broad improbablities in the case of the complainant , the improbabilities in the evidence of the witnesses of the complainant , the acceptability of suggestions made to the complainant witnesses in the course of cross examination as also defence evidence if any. So , the presumption under section 139 of N.I Act need not be rebutted only by leading defence evidence and the said presumption can be rebutted even on the basis of the facts elicited in the cross examination of the complainant. 14 First limb of argument advanced by learned counsel for the accused is that the power of attorney of the complainant witness Sh. Vaibhav Dubey is not valid and CC.No.26285/1 Page no. 10 of 20 admissible in evidence as the same is not proved in accordance with law. It is pointed out that the said power of attorney is neither executed before nor authenticated by a Notary Public as the attestation by the Notary Public is ante dated to the execution of the said attorney. Learned counsel also invited the attention of this court to the cross examination of the complainant witness in this regard. To substantiate her plea , learned counsel has relied upon Electric Construction & Equipment Company Ltd v. Jagjit Electric Works AIR 1984 Delhi 363.
15 Before appreciating the aforesaid controversy , let me refer to section 85 of the Evidence Act , 1872 which is as follows:
"85. Presumption as to powers of attorney The Court shall presume that every document purporting to be a Power of Attorney, and to have been executed before, authenticated by, notary public, or any Court, Judge, Magistrate, Indian Consul, or Vice Consul, or representative of the Central Government, was so executed and authenticated."
The above provision uses the words , notary , execution and authentication. Now referring to the Advanced Law Lexicon of P. Ramanatha Aiyar, where the word Notarize is defined as under:
"Notarize. To take acknowledgments, affidavits or depositions, authenticate documents, as a notary public; to swear or affirm to, before a notary.
To attest to the authenticity of (a signature, mark, etc.)"
16 Also referring to the functions of the Notaries as specified in Section 8 of the Notaries Act, 1952 where clause (a) reads as under:
"8. Functions of notaries. (1) A notary may do all or any of the following acts by virtue of his office, namely: (a) verify, authenticate, certify or attest the execution of any instrument;"
CC.No.26285/1 Page no. 11 of 20 17 Now turning to the definition of „authentication‟ under the Advanced Law Lexicon of P. Ramanatha Aiyar, which reads as under:
"Authentication. 1. Broadly, the act of proving that something (as a document) is true or genuine, esp. so that it may be admitted as evidence; the condition of being so proved (authentication of the handwriting).
2. Specific., the assent to or adoption of a writing as one‟s own. (Black, 7th Edn., 1999) Authentication is the process of validating the identity of someone or something (Information Technology) The act of authenticating.
A process used to confirm the identity of a person or to prove the integrity of the specific information. (Information Technology) 18 So , from the above it is clear that 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 in this regard. When a seal of the Notary is put on the document, Section 85 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. Mere attestation of POA cannot lead to an inference that it was executed before the Notary Public. Execution of POA before the Notary Public and authentication by it is essential condition for valid notarization under the Notary Act and Evidence Act. The condition of notarization can only be fulfilled if it was executed before the Notary Public, meaning thereby that execution and notarization of the POA are on the same date and notarization CC.No.26285/1 Page no. 12 of 20 bears the words "signed/executed before me". The Stamp of Notary indicating the registration number need to be affixed by the Notary.
19 In the complaint in hand , complainant witness Sh. Vaibhav Dubey has stated in Para 3 of his evidence by way of affidavit that he is authorized by the complainant Bank vide Power of Attorney Dated 05.10.2010 to institute , sign , depose , verify and pursue the present complaint for and on behalf of the Complainant Bank. In his cross examination , he admitted that the Power of Attorney Ex CW1/1 was signed by Mr. Ramanathan Gopal Krishnan on the date mentioned in the power of attorney i.e 5/10/2010. Relevant portion of the said Power of Attorney is as follows:
IN WITNESS WHEREOF the said Mr. Ramanathan Gopalakrishnan has put his hand this 05 day of October 2010.
SIGNED AND DELIVERED by the within named Mr. Ramanathan Gopalakrishnan....
20 So , it is clear from the above that the said power of attorney was executed by Mr. Ramanathan on 5th of October 2010 whereas it is shown to be notarized on 4.10.2010 which is a day prior to the date of execution. So , it appears from this that execution of the said power of attorney was not before the Notary Public and consequently there cannot be proper authentication of the same meaning thereby that presumption under section 85 of Evidence Act cannot be raised. Neither any other witness is examined by the complainant to prove the execution of Power of Attorney in favour of the complainant witness Sh. Vaibhav Dubey nor any explanation has been tendered by the complainant with regard to the aforesaid discrepancy. It is also pertinent to mention that from the bare perusal of the power of attorney ExCW1/1 , it appears that the initials of Sh. Vaibhav dubey in whose CC.No.26285/1 Page no. 13 of 20 favour attorney is alleged to be executed does not tally with his initials on his complaint as well as evidence by way of affidavit which throws doubt on the case of the complainant and further strengthens the stand of the accused that complainant witness is not validly authorized to prosecute the present complaint.
21 To bolster my observation , I would like to refer to the judgment of the Allahabad High Court in Wali Mohammad Chaudhari & Ors. Vs. Jamal Uddin Chaudhari AIR (37) 1950 Allahabad 524, which analyzed Section 85 of the Evidence Act. It was observed that authentication is not merely attestation but something more. Authentication would require a person to have assured himself of the identity of the person who has signed the instrument as well as the fact of execution. It is for this reason that a Power of Attorney bearing the authentication of a Notary Public or an authority mentioned in Section 85 of the Evidence Act is taken as sufficient evidence of the execution of the instrument by the person who appears to be the executant.
22 A reference is also made to the judgment of the Supreme Court in Jugraj Singh & Anr. Vs. Jaswant Singh & Ors. 1970 (2) SCC 386. It was noticed that there was no prescribed form of authentication but reliance was placed in Wali Mohammad Chaudhari case (supra). In that context it was noticed that a proper Power of Attorney duly authenticated as required by law had to be made before the power could be conferred on another person to execute the document or to present it for registration. 23 So , from the foregoing discussion , it is amply clear that complainant witness does not have a valid power of attorney in his favour to prosecute the present complaint , hence this issue is decided in favour of the accused and against the complainant.
CC.No.26285/1 Page no. 14 of 20 24 Second limb of argument advanced by learned counsel for the accused is that
the statement of account ExCW1/6 pertaining to the accused filed by the complainant is also not admissible in evidence as it is a computer generated document which does not comply with the requirements of Bankers Books Evidence Act. On the other hand , learned counsel for the complainant has contended that the said statement is properly stamped and signed by the authorized signatory of the complainant company hence the same cannot be said to be inadmissible in evidence.
25 On 21.12.2011, when complainant witness was recalled for further cross examination, then he produced the statement of account which was Ex CW1/6 , the admissibility of which was objected to by counsel for the accused. Thereafter , when complainant witness was questioned on the aforesaid statement , then he feigned ignorance as to the person who fed data in the computer in respect of the said statement. He admitted that there is no certificate on record to the efftect that the data contained in the said statement has not been amended or altered. Further , perusal of the statement Ex CW1/6 shows that the same is only stamped and signed by one Raman Sachdeva whose designation is only mentioned as authorized signatory. The said statement is not accompanied by the certificate in terms of section 65B of Evidence Act nor any witness is examined by the complainant to prove the authenticity of the said statement. Therefore , the statement of account Ex CW1/6 cannot be read in evidence. To fortify my view , I would like to place reliance on the latest Judgment if Kerala High Court in A.M Perumal v. Star Tours and Travels (India) Ltd 2011 (2) , RCR Civil 371 wherein it has been held that electronic record would be admissible in evidence only if the record produced satisfies the conditions laid down under section 65B(2) and contains a certificate as contemplated by section 65B(4) of Evidence Act. A reading of section 65B would be relevant:
CC.No.26285/1 Page no. 15 of 20
65B.Admissibility of electronic records:
1) Notwithstanding anything contained in this Act, any
information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media produced by a computer ( hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
2) The conditions referred to in subsection (1) in respect of a computer output shall be the following namely:
a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purpose of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say.
a) identifying the electronic record containing the CC.No.26285/1 Page no. 16 of 20 statement and describing the manner in which it was produced;
b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by the computer;
c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
26 Going by the evidence on record, I find that complainant has not cared to satisfy the conditions under section 65B(2).Neither ExCW1/6 contains a certificate as contemplated under section 65B(4) of Indian Evidence Act nor the person who took out the print copy was examined. The statement also does not clearly show that ECS for the month of January, 2010 has bounced. In cross examination of the complainant witness when he was questioned regarding any entry in the statement of account for the presentment of the alleged ECS then he stated that there is an entry which is mark A. But entry mark A on the said statement does not contemplate anything about the bouncing of the alleged ECS for the month of January 2010. In this view of the matter , no reliance can be given to statement Ex CW1/6.
27 Third limb of argument raised by learned counsel for accused is that the ECS mandate form ExCW1/5 is not signed by the accused and complainant has failed to prove the due execution of the said document by the accused. Before adverting to this issue , let CC.No.26285/1 Page no. 17 of 20 us see what is the relevancy of the ECS mandate form. Section 25 of the Act which starts with the words "where an electronic funds transfer initiated by a person from an account maintained by him......".Electronic funds transfer is defined in the act as any transfer of funds which is initiated by a person by way of instruction,authorisation or order to a bank to debit or credit an account maintained with that bank through electronic means and includes point of sale transfers,automated teller machine transactions,direct deposits or withdrawal of funds, transfers initiated by telephone, internet and card payment. 28 So , it is amply clear from the above that for fastening liability under section 25 there has to initiation of electronic funds transfer which is proved by proving the execution of ECS mandate form. In the complaint in hand , complainant witness has stated in para 4 of his affidavit that towards the repayment of the EMI, the accused had agreed for Electronic Clearing Service (ECS) of funds from his bank account No. 832 bearing MICR No 110013251 maintained with Bank of India and an amount of Rs 11,153/ was to be transferred every month. The ECS mandate form alleged to be signed by the accused is Ex CW1/5.Accused has denied his signatures on the said form by putting suggestion in cross examination of the witness and also in his statement under section 313 Cr.P.C. read along with 281 Cr.P.C. Complainant witness has stated that he did not have any personal knowledge of the alleged loan transaction but accused has signed the mandate form thereby authorizing the complainant to debit his account but also admitted that ECS mandate form was not signed in his presence. When the execution of a document is denied , the party seeking to prove that document must not only prove that the alleged executant has signed that deed , but he must also prove that the executant had signed the same with the knowledge of its contents. In order that execution of a document may be proved what is required under section 67 of the Evidence Act is that the author of the CC.No.26285/1 Page no. 18 of 20 document may be examined and the witnesses who have seen the executant signing the document must depose that they have seen the executant signing the document. The execution of a document is a question of fact and can be proved like any other fact by direct as well as circumstantial evidence. Generally , the burden to prove its execution is on person in whose favour it is executed. In the present complaint , it has been an admitted position that ECS mandate form was not signed in the presence of CW1 and complainant has not examined any other witness to prove the due execution of the said ECS mandate form.
29 Legal position is settled that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the evidence of those persons who can vouchsafe for the truth of the facts in issue. In the present complaint , from the foregoing discussion it is manifest that complainant has failed to prove the execution of the ECS mandate form which is the bedrock of the case of the complainant therefore , in view of this no presumption can be raised in favour of the complainant. 30 Another aspect that catches my attention is that in section 25 of the Act there is a condition prescribed in clause b of the proviso which says that electronic funds transfer has to be initiated in accordance with the relevant procedure guidelines issued by the system provider but there is no averment in the complaint that the aforesaid condition has been complied with. Hence , in view of this since the aforesaid condition which is sine qua non for the completion of offence under section 25 has not been fullfiled by the complainant therefore present complaint stands failed on this aspect as well.
CC.No.26285/1 Page no. 19 of 20 31 In the facts and circumstances of the case, on appreciation of the evidence
and on the basis of materials on the record, I hold that complainant has failed to prove the passing of consideration and also the execution of ECS mandate form by the accused which is the foundation of the present complaint. Complainant has also failed to prove the valid authority in favour of its witness Vaibhav Dubey to prosecute the present complaint and statement of account filed by the complainant is also inadmissible in evidence due to want of proper certificate as envisaged by Section 65B of Evidence Act. In view of this , issuance of notice demanding payment of the ECS amount and non payment of the amount even after receipt of notice by the accused do not assume any importance in the light of the aforesaid findings of the court.
32 In the backdrop of aforesaid discussion, I hold that complainant has failed to establish that accused initiated electronic funds transfer towards the discharge of legally enforceable debt or liability. No material whatsoever is placed on record which could evince that accused was liable to pay the amount covered in the ECS in question. Therefore, no offence under section 25 of Payment and Settlement Systems Act 2007 is made out against the accused, hence accused Rakesh Passi stands acquitted. Bail Bond stands discharged.
ANNOUNCED IN THE OPEN (NAVJEET BUDHIRAJA)
COURT ON 10.04.2012 METROPOLITAN MAGISTRATE
SPECIAL COURT 06,
DWARKA COURTS, DELHI.
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