Delhi District Court
Cc No. 402-2021 Hdfc Ltd Through Aju ... vs . Manish Dimri Page No.1 Of 22 on 14 July, 2023
IN THE COURT OF SH. HARJOT SINGH
M.M.- 01, (N. I. ACT), DIGITAL COURT, PATIALA HOUSE COURT,
NEW DELHI.
JUDGMENT
CC No.402-2020 Housing Development Finance Corporation. Ltd., Capital Court, Olof Palme Marg, Outer Ring Road, Munirka, New Delhi-110067 Through its Authorized Representative Shri Aju Ashok ........................................................ Complainant Versus Mr. Manish Dimri R/o House no. 41, DDA Flats, Masjid Moth, Phase-1, New Delhi-110049 ........................................................Accused
a) Unique/new case number : DLND02-020492-2020
b) Name of complainant : Housing Development Finance Corporation. Ltd.,
c) Name of accused person(s) : Mr. Manish Dimri
d) Offence complained of : Under Section 25 of Payment and Settlement Systems Act, 2007
e) Plea of accused person(s) : Pleaded not guilty
f) Final order : Convicted
g) Date of such order :14.07.2023 BRIEF STATEMENT OF THE REASONS FOR THE DECISION CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.1 of 22 Harjot Digitally signed by Harjot Singh Date: 2023.07.14 Singh 17:57:11 +0530 (As mandated u/s 355(i) of the Code of Criminal Procedure, 1973.) Case of the complainant
1. Vide this judgment, this Court shall dispose off complaint for offence punishable under Section 25 of Payment and Settlement Systems Act, 2007 filed by the complainant against accused.
2. The present Judgment is a result of culmination of trial initiated on the complaint filed by the complainant. It is stated that the Complainant Company is engaged in the business of advancing loans under various schemes for residential accommodation to individuals and groups/societies after entering into written agreement / contract with the respective borrowers. That the Accused is a borrower of the Complainant Company. That the Accused was granted with the loan of Rs. 1,04,09,485/- out of which an amount of Rs.91,54,075/- has been disbursed to him to acquire property bearing property address 103-B, 3rd Floor, Big Sky Tower-1, Golf View Apartment Tower 1, Sector-1, Pocket-D, Sushant Golf City, Lucknow, Uttar Pradesh. That the above-said loan amount was sanctioned and was disbursed to the Accused, as per the request of Accused who had duly signed and executed written loan agreement / contract, thereby agreeing to abide by its terms and conditions. The Complainant Company had also issued a Loan Account No. 611100574 to the Accused. It is further stated that the Accused had agreed to repay the said loan amount advanced by the Complainant Company with interest in Equated Monthly Installments (hereinafter referred to as the "EMI's") of Rs. 91,889/-. However, the said EMI was subject to change with effect from the AIR Application Date and the current EMI payable by the Accused is Rs. 91,889/-. It is further stated that the loan of the Accused was in default and the Accused in order to clear the arrears, instructed Automated Cleaning House (hereinafter referred to as the "ACH") for automatic debit of CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.2 of 22 Digitally signed Harjot by Harjot Singh Date: Singh 2023.07.14 17:57:16 +0530 EMI amount of Rs. 91,889/- through his bank ICICI Bank Ltd, Noida Sector- 18 Wealth, Uttar Pradesh Branch with Account beaning Yo 125301500326 on 25" of every Calendar Month. It is further stated that as per the ACH instructions of the Accused, the Complainant Company duly presented the above said ACH request at the Bank of the Complainant Company, which is HDFC Bank Ltd, at Surya Kiran Building, K. G. Marg, Rajeev Chowk, New Delhi-110001, where the Complainant Company maintains an account, for debit of ACH for EMI dated 25.09.2020 for clearance of Rs. 91,889/-. It is further stated that in discharge of his liability accused provided him Automated Cleaning House (ACH), Reference No. 263888686, Loan Account No. 611100574, dated 25.09.2020, for an amount of Rs. 91,889/-, Drawn on HDFC Bank, which is Mark CW 1/D.
3. Complainant presented the ECS/ACH in question to his banker for encashment but the same was returned unpaid with the endorsement "Balance Insufficient" vide separate return memos dated 25.09.2020 Ex. CW1/E.
4. The complainant demanded the above said amount from the accused but he did not make the payment. Thereafter, complainant sent a legal notice dated 22.10.2020 Ex. CW1/D through email vide Ex. CW 1/G and through speed post. The speed post postal receipt is Ex. CW1/I and courier postal receipt is Ex. CW 1/H. The tracking report as per DTDC website and speed post website is Ex. CW 1/J and Ex. CW 1/K respectively. The accused failed to make the payment of the ECS/ACH amount to the complainant within the stipulated period. Hence, the present complaint case was filed.
5. Pre summoning evidence was recorded and proceedings were initiated against accused Manish Dimri. On summoning, accused entered his appearance CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.3 of 22 Digitally signed Harjo by Harjot Singh Date: 2023.07.14 17:57:21 +0530 and it was ensured that copy of complaint has been supplied. Thereafter notice under section 251 CrPC was put to the accused on 22.09.2021.
The Defence
6. Plea of defence was recorded on 22.09.2021. Wherein accused stated that "I agree that the impugned ECS/ ACH mandate has been signed by me. Initially, at the time of entering into the loan agreement, certain verbal commitments were made by officials of the complainant company and I had also made payments in accordance with the same. The amount of the loan was being credited in the account of the builder only. I had requested the builder to close the loan account and even sent multiple mails, in this regard but my request was not considered. I am apprehensive that this is a larger conspiracy between the builder and the complainant company. I wish to bring these facts to the notice of the Court, at an appropriate stage.". Thereafter, matter was fixed for complainant evidence and accused side was granted opportunity to cross-examine the complainant's evidence.
COMPLAINANT'S EVIDENCE
7. During the trial, complainant has led the oral and documentary evidence against the accused to prove his case beyond reasonable doubt. The following evidence are as under:
Oral Evidence CW1 Shri Aju Ashok Documentary Evidence Mark CW Copy of Authorization letter dated 02.11.2012. 1/A Mark CW Copy of Board Resolution dated 07.05.2012.
CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.4 of 22
Harjot Digitally signed
by Harjot Singh
Date: 2023.07.14
Singh 17:57:25 +0530
1/B
Mark CW Copy of Loan Agreement dated. 18.03.2014.
1/C
Ex. CW 1/ Loan account statement.
B
Mark CW Copy of the ECS Mandate.
1/D
Ex. CW Copy of the legal notice dated 22.10.2020. (Objected as to mode 1/D of proof being photocopy).
Ex. CW 1/E Return memo dated 25.09.2020.
Ex. CW Copy of the email dated 22.10.2020.
1/G
Ex. CW Courier receipt dated 22.10.2020.
1/H
Ex. CW 1/I. Speed post receipt dated 22.10.2020. Ex. CW 1/J Delivery Proof as per DTDC website. Ex. CW Delivery Proof as per speed post website. 1/K Ex. CW 1/L Certificate under Section 65 B of Indian Evidence Act. Ex. CW Copy of FIR against builder and the accused.
1/X
Ex. CW Copy of quadrapartite agreement.
1/X1
Complainant stepped in witness box as CW1 adopted his affidavit of pre-
summoning as his evidence reiterating almost all facts of complaint, stating all exhibits available on record.
8. Complainant evidence was closed vide order dated 14.11.2022 and thereafter, matter was fixed for recording statement of accused. CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.5 of 22 Digitally signed by Harjot Singh Harjot Singh Date:
2023.07.1417:57:31 +0530
STATEMENT OF ACCUSED
9. The statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 on 09.12.2022. Incriminating evidence was put to him. Accused denied all the allegations. In recording of statement of accused, accused opted to lead defence evidence and examined DW-1 Mr. Anshuman Sharma as defence witness.
10. Thereafter, defence evidence was closed vide order dated 24.03.2023.
11. Final arguments were addressed by the complainant and accused. Case file perused.
INGREDIENTS OF OFFENCE AND DISCUSSION-
12. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 25 of Payment & Settlement System Act, 2007, the prosecution must fulfill all the essential ingredients of the offence. It is relevant here to quote the relevant Section here which has been reproduced as below:
Section 25 Dishonour of Electronic Funds Transfer for insufficiency, etc., of funds in the account.
(1) 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 CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.6 of 22 Digitally signed Harjot by Harjot Singh Date: Singh 2023.07.14 17:57:35 +0530 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 shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended 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
(a) the electronic funds transfer was initiated for payment of any amount of money to another person for the discharge, in whole or in part, of any debt on 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 electronic funds transfer fails to make the payment of the said money to the beneficiary within fifteen days of the receipt of the said notice.
(2) It shall be presumed, unless the contrary is proved, that the electronic CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.7 of 22 Digitally signed Harjot byDate:Harjot Singh Singh 2023.07.14 17:57:40 +0530 funds transfer was initiated for the discharge, in whole or in part, of any debt or other liability.
(3) It shall not be a defence in a prosecution for an offence under sub-
section (1) that the person, who initiated the electronic funds transfer through an instruction, authorization, order or agreement, did not have reason to believe at the time of such instruction, authorization, order or agreement that the credit of his account is insufficient 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 (26 of 1881) shall apply to the dishonour of electronic funds transfer to the extent the circumstances admit. Explanation. For the purpose of this section, debt or other liability means a legally enforceable debt or other liability, as the case may be.
13. Further, the term "electronic funds transfer" have been defined u/s 2(C) of Payment and Settlement System Act, 2007 which is reproduced as under:
S. 2 (c) : "electronic funds transfer" means any transfer of funds which is initiated by a person by way of instruction, authorization or order to a bank to CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.8 of 22 Digitally signed Harjot by Harjot Singh Date: Singh 2023.07.14 17:57:45 +0530 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.
14. It is pertinent to note that Section 25(5) attracts the applicability of Chapter XVII of the Negotiable Instruments Act, 1881 to the dishonouring of an electronic funds transfer. Section 138 of the NI Act expressively provides provisions concerning the penalization of dishonoured cheques. Both these sections make the dishonouring of electronic funds and cheques an offence punishable with imprisonment, a fine or both. The prime difference between the two is that in the case of the former, the dishonour, which is the subject matter of the offence, is of electronic funds transfer rather than of a cheque.
15. In this regard I would like to rely upon a judgment of Hon'ble Delhi High Court in the case of Ritu Jain Vs. The State Through Standing Counsel & Anr. in Crl. M. C No. 555/2016 date of decision 12.03.2019, wherein it was held that by virtue of Section 25(5) of the Payments and Settlement Act, the provisions of Chapter XVII of the Negotiable Instruments Act, 1881 (26 of 1881) shall apply to the dishonour of an electronic funds transfer to the extent the circumstances admit. Therefore, when Section 25 of the Payment and Settlement Act,2007 is invoked, Section 138 of the NI Act is also applicable as the case may be.
CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.9 of 22 Digitally signed Harjot by Harjot Singh Date: Singh 2023.07.14 17:57:50 +0530
16. In order to establish the offence under Section 25 of payment and Settlement Systems Act, the prosecution must fulfill all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence:-
First ingredient: The accused initiated electronic funds transfer from an account maintained by him with the bank.
Second ingredient: The said ECS has been initiated in discharge of any legal debt or other liability. As per the explanation given in Section 25 of the Act , debt or other liability means a "legally enforceable debt or other liability".
Third ingredient: The ECS has been initiated in accordance with the relevant procedural guidelines issued by the system provider.
Fourth ingredient: The ECS when presented for encashment was returned unpaid/dishonored.
Fifth ingredient: The payee of the ECS issued a legal demand notice of demand within 30 days from receipt of information by him from the bank concerned regarding the dishonor and the person who initiated the ECS failed to make the payment within 15 days of the receipt of the aforesaid notice of demand.
APPRECIATION OF EVIDENCE- .
17. The accused can only be held guilty of the offence under Section 25 of the Payment and Settlement Systems Acts 2007, if the above-mentioned ingredients are proved by the complainant co-extensively. Additionally, the conditions CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.10 of 22 Digitally signed Harjot by Harjot Singh Date: Singh 2023.07.14 17:57:54 +0530 stipulated under Section 142 NI Act have to be fulfilled.
Notably, there is no dispute qua the proof of first, third and fourth ingredient. The complainant had proved the original ECS Mandate vide Mark CW 1/D, which the accused has not disputed as being drawn on the account of the accused and is duly signed by the accused. It is further not disputed that the ECS has been initiated in accordance with the relevant procedural guidelines issued by the system provider. The ECS in question was returned unpaid vide return memo Ex. CW 1/E.
18. As far as the proof of fifth ingredient is concerned, the accused in his plea of defence has stated that he is not able to recollect, whether he received the legal demand notice or not. Further, the accused in his statement recorded under Section 313 of Cr.P.C has stated that he has not received the legal demand notice. The copy of legal demand notice and postal receipts/tracking reports have been placed on record by complainant. Accused has also not disputed the genuineness of postal receipts and tracking reports. At this juncture, reliance is placed upon the judgment passed by Hon'ble Supreme Court in the case of C.C.Alavi Haji vs. Palapetty Muhammed, 2007 (6) SCC 555 wherein it has been held:
"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 CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.11 of 22 Digitally signed Harjot by Harjot Singh Date: Singh 2023.07.14 17:57:58 +0530 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 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."
Therefore, in such circumstances, presumption under section 114 Indian Evidence Act and section 27 of General Clauses Act can be raised to the effect that notice was duly served upon the accused. The presumptions have not been rebutted by the accused therefore it can be safely established that accused has received the legal demand notice.
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19. As far as the proof of second ingredient is concerned, the complainant has to prove that the ECH has been initiated by the person for discharging a legally enforceable debt or other liability. In the present case, the accused raised the defence that he is not liable to pay the ECS amount to the complainant as the liability to pay the amount is of the builder only to whom the loan amount was disbursed. It is well settled law that mere denial by the accused would not rebut the statutory presumptions u/s 139 and u/s 118 of NI Act r/w Section 25 (2) of Payment and Settlement Systems Act, 2007 which arises in favour of the complainant under NI act and PASA act and presumption will still arise in favour of complainant.
20. Hence, once the accused admits that he has issued ECS Mandate, it relates to the fact that an initial presumption as contemplated u/s 139 of Negotiable Installments Act r/w Section 25(2) of Payment and Settlement Systems Acts 2007 has to be raised by the court in favour of the Complainant. Section 139 of the Negotiable Installments Act r/w Section 25(2) of Payment and Settlement Systems Acts 2007 contemplates that it shall be presumed unless contrary is proved that the electronic funds transfer was initiated for the discharge, in whole or in part, of any debt or other liability. The presumption referred to u/s 139 of Negotiable Installments Act r/w Section 25(2) of Payment and Settlement Systems Acts, 2007 is mandatory presumption and in general a rebuttable CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.13 of 22 Digitally signed by Harjot Singh Date: 2023.07.14 17:58:07 +0530 Harjot Singh presumption.
21. Since the provisions of Section 25 (1) and 25 (2) of Payment and Settlement Systems Act, 2007 r/w explanation are similar to the provisions of Section 138 and 139 of N.I. Act, it is just and proper to consider the principles of law laid down in the landmark judgment passed by the Hon'ble Supreme Court of India in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of N.I. Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarize the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.14 of 22 Digitally signed by Harjot Singh Date: 2023.07.14 17:58:12 +0530 Harjot Singh evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
22. The presumptions raised under Section 118(b) and Section 139 NI Act r/w Section 25 (2) of Payment and Settlement Systems Act, 2007 are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability towards the complainant.
23. Defence that the ECS in question was not initiated for any legal debt or other liability.
In a nutshell, the case of the accused is that the officials of M/s Tulsiyani Construction and Developers(hereinafter called the builder) promised him a flat at discounted rates and obtained a loan from the complainant company in his name after showing allotment of 1 flat in his name. It is argued that the loan was disbursed directly in the bank account of the builder and the builder was to repay CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.15 of 22 Harjot Digitally signed by Harjot Singh Date: 2023.07.14 Singh 17:58:16 +0530 the loan amount after depositing the amount in the loan account opened in the name of the accused. It is further argued that the builder had deposited some installments in the loan account of the accused but he later on failed to do so and the ECS in question got dishonored for insufficient funds in the loan bank account of the accused. It is further argued that the builder in connivance with the bank officials has defrauded him and he has no legal liability to pay anything to the complainant company.
In the present case, the accused has raised a two-fold defence which is discussed as follows:
23.1 Firstly, it is contended by the accused that the AR of the complainant does not have any personal knowledge of the transaction in question and is therefore, no competent to depose as a witness in the present matter. It is further contended that the authority letter of the AR (Mark CW 1/A) bears a note that the AR can exercise authority to depose in the present matter only on production of employee identity card and no such employee identity card was produced by the AR during his examination and cross-examination before this court.
The AR of the complainant in his cross-examination has stated that he has not personally done the transaction with the accused and he cannot remember the name of the person who had entered into the loan transaction with the accused. He has denied the suggestion that he is intentionally not disclosing the name of the person who has entered into loan transaction with the accused. Further, he CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.16 of 22 Digitally signed Harjot by Harjot Singh Date: Singh 2023.07.14 17:58:20 +0530 stated that he has no personal knowledge of the present matter and he was also not present at the time of signing of loan agreement and quadra-partite agreement between the parties.
Further, the AR of the complainant vide his evidence affidavit Ex. CW 1/A has stated that his knowledge as to the present transaction is not personal but is document based and is based on official records of the complainant company. He has deposed in his cross examination that he is well aware of the contents of the loan agreement and quadra-partite agreement. He has denied the suggestion that he is not aware of the contents of the loan statement Ex. CW 1/B. No other question has been asked or suggestion has been given and no other evidence or document has been produced by the accused to show that the AR of the complainant does not have due knowledge of the present transaction. In order to depose as a witness, the knowledge of the witness is material. The knowledge can either be personal knowledge or due knowledge based on documents/records of the company. In the present case, the knowledge of the AR is not personal and the same is due knowledge based on documents of the complainant company. Nothing has been brought on record by the accused to show that the AR does not possess due knowledge of the transaction in question. Merely because the AR does not know when and where the loan agreement and quadra-partite agreement was signed does not mean that the AR does not have CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.17 of 22 Harjot Digitally signed by Harjot Singh Date: 2023.07.14 Singh 17:58:24 +0530 due knowledge of the transaction in question. Therefore, it cannot be said that the AR does not have due knowledge of the present matter. Further, mere non production of the employee identity card as contended by the accused is not fatal as the accused has cross examined the AR of the complainant at length without any objection. Further, the accused has not disputed the identity and authority of the AR to depose as complainant witness there and then at the time of examination and cross-examination of the AR as complainant witness. Therefore, the contentions of the accused are merely bald contentions and are not tenable. The contentions are hereby rejected.
23.2 Secondly, the accused contended that he has no liability to pay the EMIs to the complainant company and the liability to pay the same was of the builder only. The contentions are based on the following facts :
a) That the loan amount was not disbursed to him but was disbursed directly to the builder.
b) That the property against which the loan was disbursed is still in the possession of the builder and is mortgaged with the complainant company and the mortgage is yet to be redeemed by the complainant company.
c) That the EMIs of the loan were initially paid by the builder only and the liability to pay the remaining EMIs is of the builder only.
It is not disputed that the loan amount was credited in the bank account of the CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.18 of 22 Digitally signed Harjot by Harjot Singh Date: Singh 2023.07.14 17:58:28 +0530 builder only. The AR of the complainant vide his cross-examination recorded on 31.10.2022 has admitted that the loan amount was disbursed to the builder as per the normal practice and the same is done with the consent of the borrower i.e. the accused in the present case. The accused has not disputed that he has not consented to disburse the loan amount to the builder. Further, it is not disputed that the property against which the loan amount was disbursed is mortgaged with the complainant company and the mortgaged is not yet redeemed. The same is also admitted by the AR in his cross examination.
Therefore, the only question left to be decided here is whether the builder was liable to repay the loan amount or whether the primary liability to repay the loan amount was of the borrower of the loan i.e. accused.
On one side, the AR of the complainant in his cross-examination has denied the suggestion that the loan by way of EMIs were to be repaid/refunded by the builder. Further, the AR deposed that he cannot say if the installments in the loan account of the accused has been paid by the builder. He further deposed that even if the EMIs were deposited by the builder in the loan account of the accused, then the same was due to some arrangement between the accused and the builder only. On the other side, the accused has not produced any document or evidence to show that there was some arrangement between him and the builder qua which that the EMIs was to be repaid by the builder only. Further, the CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.19 of 22 Digitally signed Harjot Singh by Harjot Singh Date: 2023.07.14 17:58:32 +0530 accused has failed to prove that the complainant company was privy to any such arrangement or that the arrangement was agreed to by the complainant company. Further, no proof of the installment being deposited by the builder has been placed on record by the accused. Further, DW-1 in his testimony has not brought on record any document to show that the builder was responsible for returning the loan amount.
It is pertinent to note here that the accused has admitted the loan agreement and the signatures on the same. It is also admitted that the loan was borrowed by him from the complainant company. It is also admitted that he undertook to repay the loan amount by way of equated monthly installments of Rs. 91,889/- each. Even if it is presumed that the builder had deposited the initial EMIs in the loan bank account of the accused, then also the primary liability to repay the loan falls upon the borrower only. Any sought of arrangement to repay the loan amount between the accused and the builder will not absolve the primary liability of the borrower to repay the loan amount. Therefore, the only irresistible conclusion that comes to the fore is that the accused was primarily liable to repay the loan amount to the complainant company and the ECS instructions were issued by him in order to discharge legally enforceable debt or liability towards the complainant. Therefore, the defence raised by the accused in not tenable and is hereby rejected.
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Harjot Digitally signed
by Harjot Singh
Singh Date: 2023.07.14
17:58:37 +0530
24. Considering, the evidence of the complainant on the whole, this court is of the considered opinion that the complainant has withstood the test of cross- examination. There is nothing in the cross-examination of the complainant and in the defence evidence that rebuts the presumption of legally enforceable debt in favour of the complainant qua the ECS in question. The accused has failed to rebut the presumption, either through the cross-examination of the complainant or by way of defence evidence.
25. Hence, in the light of discussions in the aforegoing para(s), it is apparent that the case of the complainant that the ECS in question was inititated by the accused for the purpose of discharging a legal debt or liability is worthy of credit and inspires the confidence of the court. The fact that the accused has failed to rebut the presumption by way of any evidence or document clearly indicates that the ECS was initiated in "discharge of legally enforceable debt or other liability".Thus, it can be clearly said that the accused has failed to rebut the presumption raised under section 139 of NI Act r/w Section 25 (2) of PASA Act. Thus, the second ingredient to the offence under Section 25 of Payment and Settlement Systems Act 2007 stands proved.
CONCLUSION:
26. To recapitulate the above discussion, the accused has failed in establishing a probable defence on a standard of preponderance of probabilities to rebut the presumption under section 118 and 139 of the NI CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.21 of 22 Digitally signed Harjot by Harjot Singh Date: Singh 2023.07.14 17:58:41 +0530 Act r/w Section 25 (2) of PASA Act by punching the holes in the case of the complainant and making the case of the complainant doubtful. Cogent evidence is required to be proved beyond reasonable doubt to secure conviction in a criminal trial. The complainant has been successful in establishing that the ECS in question was initiated in discharge of existing legal debt or liability owed to the complainant. In the result of the analysis of the present case, the accused Manish Dimri , is hereby convicted of the offence punishable under Section 25 of Payment and Settlement Systems Act, 2007.
Announced in the open Court
Digitally
signed by
On 14.07.2023 Harjot Harjot Singh
Date:
Singh 2023.07.14
17:58:46
+0530
(Harjot Singh)
M.M (N.I.Act),Digital Court-01
PHC/New Delhi/14.07.2023
CC No. 402-2021 HDFC LTD THROUGH AJU ASHOK Vs. MANISH DIMRI Page No.22 of 22