Delhi District Court
M/S Barclays Bank Plc vs Raj Kumar Sharma on 30 November, 2011
IN THE COURT OF SHRI ARUN KUMAR, METROPOLITAN
MAGISTRATE:DWARKA COURTS:NEW DELHI
CC NO: 6696/09
Unique Case ID No: ____________
M/s Barclays Bank PLC
Eros Corporate Tower,
Nehru Place,
Delhi110019
Through its Authorised Representative
Mr. Vaibhav Dubey ...............Complainant
Versus
Raj Kumar Sharma
Prop./Partner/Director/Authorized Person
DGII/5 D 3rd Floor
Vikaspuri, Delhi110018 ................Accused
Offence Complained of or proved : Under Section 25 of
the Payment and Settlement
Systems Act, 2007
Plea of the Accused : Pleaded not guilty
Date of filing : 16.04.2009
Date of Institution : 25.04.2009
Date of reserving judgment/order : 18.11.2011
Final Order/Judgment : Acquitted
Barclays Bank v. Raj Kumar Sharma
CC No. 6696/09
Judgment dated 30.11.2011 1 of 24
Date of pronouncement : 30.11.2011
JUDGMENT:
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:
1. Vide this judgment, I shall dispose of the present complaint u/s 25 of the Payment and Settlement Systems Act, 2007, filed by the complainant against the accused.
2. Case of the complainant, as per the complaint, is that in pursuance of terms and conditions embodied in agreement number 2655194, the complainant had granted a loan/finance facility to the accused, repayable by the accused with interest in equal monthly installments through ECS and the accused accordingly issued standing instructions to its bankers, viz. Centurion Bank of Punjab bearing bank MICR No. 110233029, to debit a sum of Rs. 11,364/ towards the EMI in respect of the aforesaid loan transaction, on monthly basis, from his bank account bearing no. 120401000006250 and correspondingly to credit the said amount in the account of the complainant. According to the complainant, the electronic funds transfer initiated by the accused, in respect of the EMI for the month of 05.02.2009 amounting to Rs. 11,364/ could not be realized, on Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 2 of 24 ground of "Insufficient Balance" and an intimation in this regard was received by the complainant vide intimation in respect of transaction no. TXBA1394230 dated 06.02.2009 issued by M/s India Ideas.com (P) Ltd. (Bill Desk), user institution, registered with RBI. Thereafter, the complainant had sent a demand notice dated 05.03.2009 vide registerd AD post dated 05.03.2009, within the prescribed period, calling upon the accused to pay the ECS amount within 15 days of receipt of the notice, however, since the accused had failed to make the payment, the present complaint u/s 25 of the Payment and Settlement Systems Act, 2007 has been filed by the complainant through its duly authorized representative Mr. Vaibhav Dubey.
3. The accused was summoned vide order dated 30.04.2009, whereupon accused has entered the appearance on 18.07.2009 and Notice u/s 251 Cr.P.C. was issued to the accused on 02.01.2010 to which he did not plead guilty and claimed trial and the matter was fixed for complainant's evidence.
4. AR of the complainant has filed his affidavit in post summoning evidence reiterating the submissions made in the complaint and has examined himself as the sole witness on behalf of the complainant. The complainant has relied upon the following documents: Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 3 of 24 EX.CW1/A: Copy of Power of attorney in favour of the AR. EX.CW1/C: Intimation regarding failure of the electronic funds transfer EX.CW1/D: Demand notice dated 05.03.2009 EX.CW1/E: Postal Receipt regarding disptch of demand notice by Registered AD dated 05.03.2009 EX.CW1/X: Copy of Demand promissory note.
Mark 'A': ECS mandate
5. CW1 was duly cross examined by Ld. Counsel for the accused and at the request of Ld. Counsel for the complainant, Complainant's evidence was closed vide order dated 07.04.2010. Thereafter, accused was examined u/s 313 of Cr.P.C. on 03.05.2010 and the matter was adjourned for defence evidence.
6. Accused has examined himself as DW1, with the permission of court under Section 315 of the Cr.P.C. and since no other witness was examined on behalf of the accused despite repeated opportunities, DE was closed vide order dated 01.11.2011 and the matter was fixed for final arguments.
7.Final arguments in the present complaint were heard on 18.11.2011. Ld. Counsel for the accused has also filed written submissions. However, none has appeared on behalf of the complainant to advance arguments Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 4 of 24 despite repeated opportunities. It has been contended by Ld. Counsel for the accused that the complaint is not maintainable in view of the fact that the same has not been filed by duly authorized representative of the complainant. Moreover, according to him, although the complaint has been filed under Section 25 of the Payment and Settlement Systems Act, 2007, but the accused has been summoned under Section 138 of the NI Act. According to him, the complainant has failed to prove that the alleged ECS mandate has been executed by the accused. According to him, the complainant has also failed to prove that the accused had any legally enforceable debt or liability towards the complainant in as much as the complainant has failed to place on record the alleged loan agreement and neither the ECS mandate nor the return memo has been duly proved by the complainant According to him the complainant has further failed to prove the service of legal notice, in terms of proviso (c) to section 25 of the Payment and Settlement Systems Act, 2007, on the accused and as such the present complaint is liable to be dismissed and the accused is entitled to be acquitted. Ld. Counsel for the accused has relied on the judgment passed by Hon'ble Delhi High Court in HDFC v. Amit Kumar Singh in support of his last submission. Ld. Counsel for the accused has also cited the following judgments in support of his Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 5 of 24 submissions: 2011 (1) DCR 3; 2010 (2) DCR 184; 2010 (2) DCR 700; 2010 (2) DCR 674; 2011 (1) DCR 102; 2011 (1) DCR 89; 2011 (1) DCR 108; 2011 (1) DCR 646; 2011 (1) DCR 135; 2011 (1) DCR 627; 2011 (1) DCR 645; 2011 (1) DCR 495; 2011 (1) DCR 201; 2011 (1) DCR 254; 2008 (152) DLT 637; AIR 2009 SC 1168.
8. On the basis of submissions made on behalf of the accused, following issues arise for determination by this Court:
(a) Whether the present complaint is not maintainable as not filed by the duly authorized representative of the complainant?
(b) Whether the alleged Electronics fund transfer has been initiated by the accused or in other words whether the alleged ECS mandate has been signed by the accused for making the payment in discharge of any legally enforceable debt or liability?
(c) Whether the legal notice in terms of Proviso (c) to Section 25 of the Payment and Settlement Systems Act, 2007 has been duly served on the accused or not?
I shall deal with aforesaid issues one by one.
Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 6 of 24
(a) Whether the present complaint is not maintainable as not filed by the duly authorised representative of the complainant?
9. It is submitted by Ld. Counsel for the accused that the present complaint is not maintainable as the same has not been filed by the complainant through duly authorized representative. According to him, the present complaint has been filed by Mr. Vaibhav Dubey, alleged AR of the complainant, however, he has failed to prove beyond reasonable doubt that he has been duly authorized by the complainant. It is submitted by him that alleged AR has placed on record a photocopy of alleged POA in his favour, however, same cannot be considered in view of the fact that the same has not been properly proved by him as per the provisions of Evidence Act. According to him the AR should have placed on record the original power of attorney in his favour alongwith the board resolution in favour of executant of the power of attorney, however, he has failed to place on record the same despite repeated opportunities. Even otherwise, according to him, not only the alleged power of attorney is not registered but also the same has not been executed in presence of the alleged AR.
10. I have considered the aforesaid submissions made on behalf of accused and have also perused the material available on record in the Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 7 of 24 light of relevant legal principles. In my considered opinion, a power of attorney need not be registered one, before reliance can be placed on the same, nor the same is required to have been executed in presence of the attorney. Once a power of attorney is purported to have been executed before a notary public and duly authenticated by the later, there arises a presumption not only in favour of its due execution as per law but also with respect to the competency of the executant of the power of attorney to execute the same, in terms of provisions of Section 85 of the Indian Evidence Act. However, to raise the aforesaid presumption, the original power of attorney is required to be produced before the court, though it is not necessary that the same be also placed on record. As once an original document is produced in the court, a copy of the same can always be kept on record which can be duly exhibited and read in evidence. However, in the present case the AR of the complainant though alleged that he had produced the original at the time of presummoning evidence, has failed to produce the same during the cross examination. Furthermore, though it is not required that the power of attorney must be executed in the presence of attorney holder or that it should be signed by the attorney holder but in the present case the power of attorney is admittedly signed by the alleged AR. POA Ex. CW1/A seems to have been authenticated Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 8 of 24 by the notary public, on a perusal of the same, it is not apparent as to execution by which of the party to POA has been authenticated by him, since admittedly the POA has been signed by both the parties to POA at different time and places. Thus, in my considered opinion, the alleged AR has failed to prove beyond reasonable doubts that he was the duly authorized representative of the complainant for the purposes of filing the present complaint against the accused as despite objection by Ld. Counsel for the accused as to mode of proof, the alleged AR has not only failed to produce the original POA but even the basic facts for raising the presumption under Section 85 of the Evidence Act have not been proved by him. Thus the first question is answered in affirmative.
(b) Whether the alleged Electronics fund transfer has been initiated by the accused or in other words whether the alleged ECS mandate has been signed by the accused for making the payment in discharge of any legally enforceable debt or liability?
11. Before dealing with the second issue it would be apposite to reproduce the provisions of section 25 and section 2(c) of the payment and Settlement Systems Act, 2007 which reads as follows: Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 9 of 24 "S. 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 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 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--
(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 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 electronic funds transfer fails to make the payment of the said money to the beneficiary within Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 10 of 24 fifteen 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 a defence in a prosecution for an offence under subsection (1) 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 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 purposes of this section, "debt or other liability" means a legally enforceable debt or other liability, as the case may be.
S. 2 (c) : "electronic funds transfer" means 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 Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 11 of 24 initiated by telephone, internet and, card payment;
12. A perusal of Section 25 of the Payment and settlement Systems Act shows that one of the basic ingredient of the offence under Section 25 is that the electronics funds transfer is initiated by the accused out of the account maintained by him with a bank for payment of any amount of money to another person for the discharge, in whole or in part, of any debt or other liability, in accordance with the relevant procedural guidelines issued by the system provider. In other words not only the ECS mandate must be signed by the accused but also it should be initiated in accordance with relevant guidelines issued by system provider. In the present case it is submitted by Ld. Counsel for the accused that the complainant has failed to prove that the alleged ECS mandate has been signed by the accused. Even otherwise, according to him, the complainant has failed to prove the ESC mandate as per the relevant provisions of Indian Evidence Act regarding proof of facts by documentary evidence. It is further submitted by him that the complainant has not placed on record the original ECS mandate and even in the copy produced by the complainant the signatures seems to have been tempered with and hence the complaint on the basis of the same is not maintainable. It is further submitted by him that the accused has Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 12 of 24 categorically denied that alleged ECS mandate bears his signatures, not only during the cross examination of CW1, but also, in his statement under Section 313 of Cr.P.C. Further, the accused has examined himself on oath after obtaining permission of the court under section 315 Cr.P.C. and has deposed that the alleged ECS mandate does not bears his signatures.
13. I have considered the aforesaid submissions made on behalf of accused in the light of relevant legal principles and have perused the record. I have also perused the judgments relied upon by the accused and the same shall be referred where ever they are found to be applicable to the facts of the present case. I find force in the aforesaid submissions made on behalf of the accused. The first and foremost condition for applicability of Section 25 of the payment and Settlement Systems Act, 2007 is that the electronic funds transfer must be initiated by the accused in accordance with the procedural guidelines laid down by the system provider. There is no presumption under the law regarding the initiation of electronic funds transfer by the account holder/accused and the fact as to whether or not the electronic funds transfer has been initiated by the accused is required to be proved as per the provisions of Indian Evidence Act. The burden of proving the aforesaid fact is on the complainant and Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 13 of 24 the complainant is required to prove the same beyond reasonable doubts. Even the presumption that the electronic funds transfer has been initiated for payment of money in discharge of any legally enforceable debt or liability can only be raised after the proper initiation of the transfer is duly proved by the complainant.
14. It would be pertinent, at this stage, to reproduce the relevant portion of guidelines "Electronic Clearing Service (Debit Clearing) Procedural Guidelines" issued by Department of Payment and Settlement Systems, Reserve Bank of India which reads as follows:
"v) Responsibility of the Destination Banks: The ECS Debit works on the strength of the mandates given by the destination account holders to the user institution for effecting payment from their accounts. The mandates are required to be authenticated (primarily for signature verification of the bank's customer) by the respective bank branches within a period of seven days from the date of receipt of such requests.
After authentication, the branch would retain a copy for its record, and the customer would submit the other copy to the user institution. At the time of authenticating the mandates, the destination branches should ensure the nomenclature of the accounts visàvis those appearing in themandates. The destination branches can debit their customers' account only on the basis of the mandates given to them. The account holder / customer is also entitled to withdraw the mandate / ECS Debit instructions from its banker without involvement of Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 14 of 24 the user institution, The withdrawal instructions of a customer would be treated equivalent to a 'stop payment' instruction in cheque clearing system. The user institution should stop including the relative transaction in the ECS file, after receipt of such countermanding by the customer.
The destination account holder may also be given the facility of putting an upper limit for each individual transaction in the mandate, and/or a time limit for operations of a particular ECS mandate (life of a mandate) by the user/ destination banker. The destination branch may also allot a unique identification number to the mandate, which could be referred to by the ECS User in all the transactions. The number could include a reference to the branch identity, the type of account and a reference to the customer's account, the purpose of the debit, etc. This would also serve the destination branch as a control reference tool to monitor the ECS debits being received through the clearing house."
15. Thus, in terms of the aforesaid guidelines, the ECS mandate is required to be authenticated by the destination bank before it can be submitted to the user institution. In the present case, the alleged ECS mandate mark 'A' has not been authenticated by the destination bank i.e. banker of the accused. In terms of Section 64 of the Indian Evidence Act, the contents of document must be proved by production of the original document and the secondary evidence of it is generally inadmissible except in cases provided under Section 65 of the Act. Thus, though the Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 15 of 24 complainant was required to prove the aforesaid document by producing the same in original but the complainant has placed on record, the copy of the same, despite objection by the accused as to mode of proof of the aforesaid document. Moreover, the execution of a document can be proved either by examination of author of the document or by examination of the person in whose presence the document has been signed by another. In the present case, the complainant has failed to prove the same by examining either of the aforesaid persons. On the other hand, the accused has examined himself on oath and categorically denied that the alleged ECS mandate mark 'A' has been signed by him. Admittedly, the alleged ECS mandate was not signed by the accused in the presence of CW1. The complainant has even failed to prove the circumstances under which the aforesaid document would have been executed by the accused, in as much as, even the alleged loan agreement executed between the parties, for payment of alleged EMI under which, the ECS mandate is alleged to have been executed by the accused. On the other hand, the accused has categorically denied that any loan agreement was executed between the parties. It has been held by Hon'ble Kearala High Court in A.S.Bafakkithangal v. Purushothaman 2011(1) DCR 3 as follows: Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 16 of 24 " After examining his evidence, the learned magistrate concluded that the case set up by the complainant as to the circumstances under which the cheque was issued by the accused is not convincing, and that finding cannot be disturbed solely on the basis of some admission culled out from the witness examined by the accused."
Thus the case of the prosecution must stand on its own legs and where the complainant has failed to establish the execution of the alleged mandate by the accused, neither any presumption nor any admission as to liability by the accused would help the complainant.
16. In Om Prakash v. Subhash Chand 2011(1) DCR 108 it has been held by Hon'ble Punjab and Haryana High Court in a case arising out of Section 138 of the NI Act, which is in pari materia with the provisions of Section 25 of Payment and Settlement Systems Act, 2007, that if the court comes to conclusion that the cheque upon dishonour of which the complaint has been filed by the complainant is tempered with, the accused is entitled to be acquitted. In the present case, a bare perusal of the alleged ECS mandate mark 'A' would show that the signatures on the same have been tempered with by overwriting thereon and hence the due execution of the mandate cannot be said to have been duly proved by the Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 17 of 24 complainant. The accused has taken a consistent stand during cross examination of CW1, in his statement under Section 313 Cr.P.C. and even in his examination in chief as DW1 that the ECS mandate has not been signed by the accused. He has also moved two separate applications for referral of the aforesaid mandate to CFSL for examination of the alleged signatures of the accused and for examining the handwriting expert in his defence. The first application moved by the accused was dismissed vide order dated 02.02.2011 on the basis of submission made on behalf of the complainant that the loan was granted to the accused on the basis of loan application form and not on the basis of the ECS mandate form, which was for the purpose of clearance of installments only. The second application was dismissed by Ld. Counsel for the complainant predecessor of this court vide order dated 06.04.2011 with the observation that the overwriting on the signatures in the mandate is apparent on a bare perusal and there is no need to call an expert for the same and even otherwise the complainant has failed to prove the aforesaid documents in the manner prescribed under the Indian Evidence Act. Thus while the accused had made all efforts to prove that the alleged ECS mandate has not been signed by him, the complainant has even failed to prove the circumstances under which the aforesaid ECS mandate Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 18 of 24 has been signed by the accused either by production of the alleged loan agreement or by production of the original ECS mandate. On the other hand complainant has objected to the aforesaid applications moved on behalf of the accused. Moreover, the ECS mandate has not been authenticated by the destination bank in terms of guidelines issued by RBI and as such the said ECS mandate cannot form the basis of complaint under Section 25 of the Payment and settlement Systems Act, 2007. Hence the second question is answered in the negative.
(c) Whether the legal notice in terms of Proviso (c) to Section 25 of the Payment and Settlement Systems Act, 2007 has been duly served on the accused or not?
17. So far as the third issue is concerned, the case of the complainant is that on the dishonour of the said electronic funds transfer, the complainant had within the prescribed period of limitation sent a demand notice dated 5/3/2009 through its advocate, vide registered AD demanding the payment against the said Electronic Funds transfer, within 15 days of receipt of the said notice but the accused had failed to clear his/ her legal debt with the above notice. On the aforesaid deposition by CW1, it has been contended by Ld. Counsel for the accused that the Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 19 of 24 complainant has grossly failed to prove the service of aforesaid demand notice on the accused and as such the present complaint is not maintainable against the accused. According to him, in view of judgment of Hon'ble Supreme Court in Herman Electronics case reported in AIR 2009 SC 1168, there is a difference between 'sending the notice' and 'receipt of the notice' and it is the later which is required to be proved in a complaint under Section 138 of the NI Act or for that matter under Section 25 of the Payment and settlement Systems Act, 2007. According to him, even if it be admitted that the notice was sent to the accused, the same has not been received by the accused, as deposed by the accused in his testimony while examining himself as DW1. According to him, even the presumption under Section 27 of the General Clauses Act is not available to the complainant in the present complaint as the complainant has not only failed to sufficiently aver in the evidence by way of affidavit that the demand notice was sent to the correct address of the accused but also the same cannot be discerned on a perusal of the postal receipt which is Ex. CW1/E as the name and address of the accused has not been mentioned in the aforesaid postal receipt. According to him, even if, it is presumed that the legal notice was sent to the accused, the aforesaid presumption being rebuttable in nature, the accused has sufficiently Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 20 of 24 rebutted the aforesaid presumption not only by way of cross examination of the CW1 but by leading positive evidence in the form of testimony of the accused himself wherein the accused has categorically denied the receipt of the aforesaid notice. Ld. Counsel for the accused has further relied upon the judgment of Hon'ble Delhi High Court in HDFC v. Amit Kumar Singh and has submitted that in terms of the aforesaid judgment, when the complainant is required to place on record some proof of delivery of the notice to the accused even at presummoning stage, at which stage the court has to form merely a prima facie view, the requirement in terms of standard of proof is much stronger during the trial of the case as, during the trial, the complainant must prove its case beyond reasonable doubts.
18. I have considered the aforesaid submissions made on behalf of accused and have perused the record and on a thoughtful consideration, I do agree with the submissions made on behalf of the accused that the complainant has failed to prove the basic fact that the legal notice Ex. CW1/D was sent to correct address of the accused, in as much as, not only there is no whisper in para 7 of the affidavit of CW1 to the effect that the notice was sent to accused, but even the postal receipt placed on Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 21 of 24 record by the complainant does not bear the name and address of the accused. In para 7 of his affidavit CW1 has merely stated that on the dishonour of the said electronic funds transfer, the complainant had within the prescribed period of limitation sent a demand notice dated 5/3/2009 through its advocate, vide registered AD demanding the payment against the said Electronic Funds transfer, within 15 days of receipt of the said notice but the accused had failed to clear his/ her legal debt with the above notice. Thus in the aforesaid para, the witness has failed to mention as to whom and on what address the notice was sent by the counsel for the complainant. It is settled proposition of law that in order to raise the presumption under 27 of the General Clauses Act, regarding the due delivery of the postal article to the addressee, three things must be proved i.e. a) the envelope was properly addressed, b) requisite postal charges had been prepaid; c) the article was sent through registered post. These facts can either be proved by production of original postal receipt or by way of testimony of some competent witness, though the evidence in the form of postal receipt would be the best evidence as per the rules of evidence. However, as has been observed hereinabove the complainant has failed to prove the aforesaid basic facts in either manner. This is despite the fact that the accused has not only denied the due Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 22 of 24 service of the notice upon him, during the cross examination of CW1, but the accused has also stepped into the witness box to deny the same. Hence, I find myself unable to raise the aforesaid presumption regarding service of the legal notice on the accused, from the facts proved by the complainant. However, that apart, had this been the only defence raised by the accused that the complaint is not maintainable since he did not receive the legal notice, the accused might not have been allowed to raise this defence, in view of the judgment of Hon'ble Supreme Court in C.C.Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555, since the accused had the option to make the payment of ECS amount in question within 15 days of receipt of summons from the court alongwith the copy of the complaint and if the accused has failed to make the payment even within 15 days of service of summons he cannot take the defence at a later stage that he was not served with the legal notice. But this is not a case where the accused had taken the defence of nonservice of legal notice as the only defence in his favour, but in the present case, the accused has successfully taken the defence of nonexecution of the ECS mandate and nonmaintainability of the present complaint at the behest of alleged AR of the complainant and as such even the observations in C.C. Alavi Haji's case (Supra) does not help the case of the complainant, in Barclays Bank v. Raj Kumar Sharma CC No. 6696/09 Judgment dated 30.11.2011 23 of 24 the facts and circumstances of the present case. Accordingly the third question is answered in negative.
20. To sum up, since the complainant has failed to prove that the complaint has been filed by duly authorized representative of the complainant, and that the Electronic Funds transfer was initiated by the accused in accordance with the guidelines laid down by the system provider and also that the legal notice was duly served upon the accused, the accused is entitled to be acquitted of charges under Section 25 of the Payment and Settlement Systems Act, 2007. Therefore, in view of the aforesaid facts and circumstances and in view of the aforesaid discussions, the accused is hereby acquitted of charges under Section 25 of the Payment and Settlement Systems Act, 2007.
21. Ordered accordingly.
Pronounced in the Open Court on this 30th day of November, 2011. This Judgment consists of 24 signed pages.
(ARUN KUMAR)
Metropolitan Magistrate:Dwarka Courts
Barclays Bank v. Raj Kumar Sharma
CC No. 6696/09
Judgment dated 30.11.2011 24 of 24