Delhi District Court
Axis Bank Ltd vs . on 3 December, 2014
1
IN THE COURT OF SH. BABRU BHAN, METROPOLITAN MAGISTRATE,
(SPL. NI COURT )04 DWARKA COURT, NEW DELHI
AXIS BANK LTD.
Vs.
AJAY KUMAR PASSI
C.C. No.196/14
PS: Bara Khambha Road U/s 138 N.I. Act
JUDGEMENT
a) Date of commission of offence: 15.01.2010
b) Name of Complainant Axis Bank Ltd. through its authorized representative.
c) Name and address of the Ajay Kumar Passi S/o Late
accused : Sh. R.L. Passi, Aged 53
years, R/o H.No. 9/1041,
Behind Laxmi Cinema, New
Delhi110031.
d) Offence complained of: U/s 138 N.I. Act
e) Plea of accused: Pleaded not guilty
f) Final order: Convicted
g) Date of order: 03.12.2014
h) Date of institution of case: 22.01.2010
i) Date of decision of case: 03.12.2014
CC No.196/14; Axis Bank Ltd. vs. Ajay Kumar Passi Page 1 of 11 2
1. The complainant in the present case is body corporate registered under the Companies Act, 1956. It has filed the present complaint alleging the facts that the accused availed a personal loan under the loan agreement PPNOD100078331 from the complainant. The desired loan was disbursed to the accused. The loan was to be repaid in installments as agreed between the parties. In discharge of liability arising out of this loan, the accused issued cheques bearing no'307542', '307543' & '307544' all dated 26.08.2009 and for sum of Rs.35,890/ and drawn on Bank of India, Subzi Mandi, New Delhi in favour of the complainant. The said cheques were presented for encashment via image based clearing system, however, the same were returned unpaid due to 'insufficient funds'. On receiving the intimation of dishonour, the complainant demanded the cheque amount via legal demand notice dated 07.12.2009. It is alleged that the accused failed to make the payment within the statutory period despite service of notice upon him. Hence, this complaint.
2. This complaint was filed by Sh. Kapil Gera on behalf of the complainant bank, however, he was subsequently substituted by Sh. Govind Singh. During the post summoning evidence, Sh. CC No.196/14; Axis Bank Ltd. vs. Ajay Kumar Passi Page 2 of 11 3 Govind Singh was examined as CW1. He filed his evidence by way of an affidavit Ex.CW1/B. The documents relied upon by the complainant are detailed as under: ● Authority Letter and Power of Attorney (Ex.CW1/1), ● Impugned cheques (Ex.CW1/2 to Ex.CW1/4), ● CTS cheque clearing advice (Ex.CW1/5), ● Legal demand notice (Ex.CW1/6), ● Postal receipt, courier receipt and A.D. Card (Ex.CW1/7 & Ex.CW1/8), ● Loan agreement (Mark1/1), ● Statement of account (Ex.CW1/11) & ● Certificate u/s.2(a) of Bankers Book Evidence (Ex.CW1/12).
3. CW1 was cross examined by ld. counsel for the accused. During the cross examination, CW1 stated that he was employed with the complainant since February, 2008. Witness further stated that the affidavit filed by him in evidence was drafted by the counsel on his instruction and in his presence. He further stated that he derived the knowledge of the present case on the basis of the documents provided by the complainant to him. The witness admitted that he had no personal knowledge regarding the dealings of the accused CC No.196/14; Axis Bank Ltd. vs. Ajay Kumar Passi Page 3 of 11 4 with the complainant bank. Witness further deposed that loan in question amounting to Rs.12.46 lacs disbursed to the accused by him. He also stated that the impugned cheques were not handed over to any employee of the complainant bank but same were dropped in the box installed in the bank for this purpose. He stated that he was not aware about the date on which the said cheques were dropped. The witness denied the suggestion that cheques were handed over at the time of loan disbursement. He also stated that there was not agreed mode of repayment and it all depended upon the accused. He also denied the suggestion that prior to presentation of impugned cheques, the repayment of loan was being made through PDCs. The witness also denied the suggestion that Ex.CW1/2 and Ex.CW1/3 were never presented for encashment. Witness denied the suggestion that legal demand notice was not sent via registered post.
4. Sh. Lokesh Vats posted as clerk in Bank of India was examined as CW2. He filed the documents Ex.CW2/1 regarding the dishonour of impugned cheques on 16.11.2009.
5. Thereafter the entire incriminating evidence was put to the accused under the mandate of section 313 CrPC, wherein, the CC No.196/14; Axis Bank Ltd. vs. Ajay Kumar Passi Page 4 of 11 5 accused explained that the cheques were issued blank signed. He admitted the loan but denied the receipt of legal demand notice.
6. Accused deposed as DW1 in his defence. He stated that cheque Ex.CW1/2 to Ex.CW1/4 were issued as security and not for the payment of loan amount. He addmitted his signatures upon the impugned cheques but denied the filing of other contents. He also filed his savings passbook of Bank of India as Ex.DW1/1. As per Ex.DW1/1, ECS in favour of the complainant had commenced from 20.09.2007 and the amount was Rs.26,594/. During the cross examination, DW1 admitted of having availed loan of Rs.7.50 lacs approximately. He further admitted that loan was to be repaid in 36 or 38 monthly installments. Accused could not admit or deny that the loan sanctioned was Rs.12.46 lacs. He also failed to tell the number of EMIs paid by him. He also could not admit or deny whether he had paid entire loan amount or not. He denied the suggestion that agreed mode of repayment was through ECS and cheques both. He also denied the signatures upon loan agreement mark1/1. He further denied that EMI amount was Rs.35,890/. He also denied the suggestion that impugned cheques were installments cheques.
CC No.196/14; Axis Bank Ltd. vs. Ajay Kumar Passi Page 5 of 11 6
7. Arguments heard. Now in light of about detailed facts and evidence, I am proceeding with the judgment.
8. First point argued by Ld. counsel for the accused is that when witness makes a deposition via affidavit which is not based on personal knowledge, the source of information should be clearly disclosed in verification and if the nature and source of knowledge is not disclosed, the affidavit is not as per law and same is liable to be rejected. It is further argued that AR for the complainant has not disclosed the source of his knowledge regarding the facts of this case. Further, CW1 has deposed during his cross examination that he never dealt with the accused regarding the loan in question and therefore, have no personal knowledge of the dealings of the accused with complainant bank.
9. Ld. Counsel for the accused also relied upon the following judgments to bolster her argument:
(i). Radhey Shyam Garg Vs. Naresh Kumar Gupta, SC, 2010.
(ii). A. K. Nambiar Vs. Union of India, AIR, 1917 SC.
(iii). State of Bombay Vs. Purshotam, AIR, 1952 SC. CC No.196/14; Axis Bank Ltd. vs. Ajay Kumar Passi Page 6 of 11 7
10. This argument advanced by Ld. Counsel for the accused is hardly impressive. The complainant is a body corporate and it has to be represented by someone who can appear in the court. The AR for the complainant cannot be expected to be an eye witness to the every transactions which has taken place between the bank and the borrower. Naturally, the authorized Representative would derive the knowledge regarding the case from the records and documents of the complainant bank. This fact has been clearly mentioned by the AR during his cross examination that the knowledge regarding the present case was derived on the basis of documents provided by the complainant bank. The case is based on documents and the personal knowledge of the AR regarding dealings of the accused with the complainant bank is not necessary. The facts of the above referred judgments are not applicable to the facts of the present case. The affidavit filed by the CW1 is admissible in evidence and there is no legal infirmity with the same. Thus, this argument is liable to be rejected.
11. The second argument advanced by the Ld. Counsel of the accused is that complainant has failed to prove that the impugned cheques were issued by the accused in discharge of any legal debt or liability.
CC No.196/14; Axis Bank Ltd. vs. Ajay Kumar Passi Page 7 of 11 8
12. Before proceedings further with the discussion on the above argument, it would be very relevant to mention the statutory presumptions contemplated u/s 118 and 139 of Negotiable Instrument Act. Section 118 provides that unless contrary is proved, it shall be presumed that every Negotiable Instrument was made or drawn for consideration. Section 139 provides that it shall be presumed, unless contrary is proved that holder of a cheque received the cheque for the discharge, in whole or in part or of any debt or liability. These presumptions, as the language suggests, are rebuttable in nature.
13. In light of above presumptions, the burden is upon the accused to show that the impugned cheques were not issued in discharge of any debt or liability. The AR for the complainant was subjected to a detailed cross examination by Ld. Counsel for the accused. But surprisingly, it was nowhere disputed that accused availed loan of Rs. 12.46 lacs from the complainant. Not even a single suggestion was put to CW1 that impugned cheque was issued for purpose of security. It is not the case of the accused that he had returned the entire amount to the complainant and therefore, he was not liable to pay the cheque amount to the complainant on the relevant date. CC No.196/14; Axis Bank Ltd. vs. Ajay Kumar Passi Page 8 of 11 9
14. Further, the accused deposed during his statement u/s 315 CrPC that impugned cheques were issued blank signed for security and not towards payment of loan. During the cross examination, accused stated that he had availed a loan of Rs. 7.5 lacs (approx) from the complainant and same was repayable in 36 or 48 EMIs. However, when Ld. Counsel for the complainant put a suggestion that the loan given to him was Rs. 12.46 lacs, the accused stated that he could not admit or deny the same. He also failed to tell that whether he had paid the entire loan amount or not.
15. The above discussion clarifies that the loan has not been disputed.
It has not been contended that the same was repaid and therefore accused was not liable to make the payment of cheque amount. There is nothing on record which probablise that the cheques were issued as security and not in discharge of any liability. The bare statement of the accused that impugned cheques were issued for purpose of security is not sufficient to rebut the statutory presumptions.
16. Though, the statement of account Ex. CW1/11 is not annexed with a proper certificate fulfilling the conditions stipulated u/s 2A of Bankers' Books Evidence but the necessity of referring the CC No.196/14; Axis Bank Ltd. vs. Ajay Kumar Passi Page 9 of 11 10 statement of account would arise when the statutory presumptions of liability are rebutted. However, in the present case, it has already been discussed above that the liability and loan has not been disputed anywhere. Thus, even if the statement of account is not taken into consideration, the statutory presumptions are sufficient to prove the liability of the accused.
17. Thus, liability is statutorily presumed.
18. As far as the issuance of cheques on the same date is concerned, there is no illegality in issuance of any number of cheques on the same date. This fact does not leads to any presumption in favour of the accused.
19. The dishonor of impugned cheques is proved by document Ex.
CW1/5 and document Ex.CW2/1.
20. The legal demand notice Ex.CW1/6 was sent to the accused on 10.12.2009 by registered post, speed post and courier. The postal receipts, courier receipts and AD card are filed on record as Ex. CW1/7 to CW1/10. The correctness of address mentioned on the legal demand notice has not been disputed. Thus, the service of CC No.196/14; Axis Bank Ltd. vs. Ajay Kumar Passi Page 10 of 11 11 legal demand notice can be safely presumed under the mandate of section 27 of the General Clauses Act.
21. Thus, all the ingredients of offence u/s.138 N.I. Act are proved against the accused. He failed to rebut the statutory presumptions. He stands convicted accordingly.
Let the copy of this judgment be supplied to the accused. (Announced in the open court on 03.12.2014) This Judgment contains 11 pages.
and each paper is signed by me.
(BABRU BHAN) METROPOLITAN MAGISTRATE DWARKA COURTS /NEW DELHI CC No.196/14; Axis Bank Ltd. vs. Ajay Kumar Passi Page 11 of 11