[PRECEDENT] IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE-05 (NI ACT), DWARKA COURTS, DELHI CC No. 832/12 ID No. 02405R0271882011 HDFC Bank Ltd. Having its office at IInd Floor, Express Building, 9-10, Bahadur Shah Zafar Marg, New Delhi-110002. Complainant Vs. Jagbir Singh 13-B, 3rd Floor, Hauz Khas, Near Jagan Nath Mandir, New Delhi Accused Date of Institution : 17.09.2011 Offence Complained of : u/[SECTION] [ACT] Plea of Accused : Not Guilty Date of Reserving order : 07.12.2013 Date of Decision : 14.12.2013 Decision : Acquitted JUDGMENT
1. Complainant, a Banking company within the meaning of [ACT], engaged, inter alia, in the business of Banking has filed the present complaint through Sh. [ENTITY], its authorized representative (AR) stating that erstwhile Centurion Bank of Punjab Ltd., has been amalgamated with HDFC Bank Ltd., pursuant to Order dated 20.05.2008 of Reserve Bank of India with effect from 23.05.2008.
2. Briefly stated the grievance of the complainant is that accused had approached the erstwhile Centurion Bank of Punjab Ltd and had requested for grant of loan. The requested of the accused was duly considered and a [PRECEDENT] was granted to him under agreement no. 91629818. It is stated that accused undertook to repay the same in equal monthly installments, including the interest thereon.
3. Complainant stated that accused issued a cheque bearing no. 262782 dated 11.07.2011 for Rs. 99,483/- drawn on Canara Bank, Hauz Khas, New Delhi-110016 (hereinafter referred to as 'cheque in question'), in accordance with the agreement against the payment of dues accumulated on account of non payment of the monthly installments under the agreement with assurance that the cheque will be honoured upon presentation. It is further stated that the cheque in question when presented for clearance by the complainant was dishonoured on the ground "Funds Insufficient" by the bank of the accused vide cheque return memo dated 11.07.2011.
4. It is stated that within a period of 30 days of the receipt of information from its banker about the dishonour of the said cheque, the complainant sent a legal notice dated 02.08.2011 through speed post demanding payment of dishonoured cheque within 15 days of the receipt of the notice. It is further stated that despite the service of the legal notice, the accused has not made the payment of the cheque in question to the complainant till date. Thus feeling aggrieved from the conduct of the accused, complainant has filed the present complaint praying that accused be summoned, tried and punished in accordance with [SECTION] of [ACT].
[PRECEDENT]
5. Pre-summoning evidence was led by the complainant on 19.10.2011. Prima facie case was made out against the accused and accused was summoned vide order of the same date.
6. Accused who was lodged at Nimka Jail, Faridabad at the relevant time was produced before the Court pursuant to production warrants issued by the Court on 01.04.2013. Accused requested for legal aid and accordingly, Sh. [ENTITY], Ld. Counsel was appointed by DLSA to assist the accused. Notice was framed upon the accused on 24.06.2013 to which the accused pleaded not guilty and claimed trial.
7. On an application filed under [SECTION] [ACT], which was allowed vide order dated 13.09.2013, accused was granted permission to cross- examine the complainant.
8. In the meanwhile, AR of the complainant was substituted and Sh. [ENTITY] was appointed as authorized representative (AR) of the complainant.
9. In post summoning complainant's evidence, Sh.
[ENTITY], AR of the complainant examined himself as CW1 and tendered his affidavit Ex. CW1/B and relied upon the documents Ex. CW1/1 to Ex. CW1/8. Ex. CW1/1 is the copy of power of attorney in favour of Sh. [ENTITY], Ex. CW1/2 is the cheque in question, Ex. CW1/3 is the cheque return memo, [PRECEDENT] Ex. CW1/4 to Ex. CW1/6 are the legal notice along with speed post and proof of delivery respectively, Ex. CW1/7 is the power of attorney in favour of Sh. [ENTITY] and Ex. CW1/8 is the statement of account.
10. Statement of accused under [SECTION] [ACT] was recorded on 19.10.2013.
11. In Defence evidence, accused examined himself on Oath under [SECTION] [ACT] as DW1. In his evidence, DW1 deposed that he had taken loan of Rs. 13 lac from the complainant and have repaid about Rs. 3-4 lac to the complainant. DW1 deposed that the installment was of Rs. 33,700/- (approximately). DW1 stated that he had not received any legal notice from the complainant. DW1 further deposed that he had given blank signed security cheques before the sanction of loan to the complainant and that he could not make further payment to the complainant since he was taken into judicial custody in another case on 05.01.2012. DW1 deposed that he does not owe liability towards the cheques in question since he had already made payment qua the same to the complainant. DW1 deposed that he had also given a cheque of Rs. 2,25,000/- to the official of the complainant and had also asked for receipt from him but the said official told him that the receipt would be issued after 2-3 days. DW1 deposed that the said cheque had been encashed but he has not been issued receipt till date by the complainant. DW1 deposed that he also went to the office of the complainant but the same had been [PRECEDENT] closed. DW1 deposed that he does not owe liability towards the complainant as alleged and that he has been falsely implicated.
12. Final arguments were advanced by Sh. [ENTITY], Ld. Counsel for complainant and Sh. [ENTITY], Ld. counsel for accused from DLSA.
13. Ld. Counsel for complainant has prayed for conviction of accused on the ground that they are successors of Centurion Bank of Punjab Ltd and thus, entitled to recover the cheque amount from the accused, that the signature on cheque in question is admitted and that liability of the accused is also admitted and thus, accused is liable to be convicted under [SECTION] [ACT].
14. On the other hand, Ld. Counsel for accused has prayed for acquittal of the accused on the ground that cheque in question was given as security cheque to Centurion Bank of Punjab Ltd and that accused has already paid installments for which cheque in question has been presented. Thus, it was argued that liability of the accused is not made out and hence, he is entitled to be acquitted.
15. I have considered the submissions and perused the record carefully.
16. In the present case, accused has admitted his liability towards the complainant and also that cheque in question [PRECEDENT] bears his signature. The only dispute raised by the accused is with respect to issuance of cheque in question as security cheque in favour of Centurion Bank of Punjab Ltd. and payment of installments reflected in cheque amount.
17. Now, so far as issue of security cheque is concerned, a perusal of cheque in question shows that the same has been issued in favour of Centurion Bank of Punjab Ltd and is dated 11.07.2011. Complainant has failed to specify in its complaint as to when, how and to whom the cheque in question was issued by the accused. CW1 in his cross-examination has deposed, " It is correct that the cheque in question was not issued in my presence. It is correct that there is no document on record which can show that accused had issued the cheque in question on the date mentioned on the same. It is correct that the loan in question was sanctioned by Centurion Bank of Punjab. The Centurion Bank has amalgamated with HDFC on 23.05.2008. It is correct that on 11.07.2011, HDFC was looking after the loan in question and all the cheques were also being issued in the name of HDFC ". From the deposition of CW1 and perusal of cheque in question, it is crystal clear that cheque in question was issued by the accused in favour of Centurion Bank of Punjab prior to its amalgamation with HDFC Bank. Moreover, as per CW1, the mode of payment of the loan was through ECS. Thus, it is inexplicable as to why the accused would issue a cheque for payment of installments when the repayment mode is already fixed through ECS. CW1 has clearly failed to establish on record that cheque in question was issued by the accused [PRECEDENT] towards discharge of his liability as alleged by them. Rather, deposition of CW1 has fortified the defence of accused that cheque in question was issued as security cheque.
18. Coming to the cheque amount, again complainant has failed to establish the same. Perusal of statement of account Ex. CW1/8 shows that each EMI was for Rs. 33,161/-. However, cheque amount in question is Rs. 99,483/-. CW1 has explained in his cross-examination that cheque amount reflects amount of three EMIs. However, CW1 has failed to state the months for which these EMIs were pending. Thus, it is inexplicable as to how and why the cheque in question came to be issued for three EMIs only on 11.07.2011. Moreover, the statement of account Ex. CW1/8 which is for the period 20.07.2007 till 12.09.2013 also fails to reflect the cheque in question which in turn creates a doubt on the authenticity of the statement of account.
19. Further, complainant was successor of Centurion Bank of Punjab Ltd., however, complainant has not placed on record any document to show that they have intimated accused about the amalgamation and that accused had consented expressly or impliedly for the complainant to present the cheque in question for Rs. 99,483/-.
20. It may be that there is a huge loan amount outstanding against the accused as on date but then, merely because accused is under liability towards the complainant does not [PRECEDENT] mean that liability for the purpose of [SECTION] [ACT] has been made out. In [PRECEDENT], it was observed by Hon'ble High Court of Delhi that mere liability of respondent to pay her dues is not enough to proceed under [SECTION] [ACT] as the appellant has civil remedy to recover outstanding dues.
21. In the present case, complainant had to prove that accused had issued cheque in question towards discharge of liability as alleged by them. However, complainant has failed to establish the same. Rather accused has succeeded in rebutting the presumptions in favour of complainant and has established that cheque in question was issued as security cheque in favour of Centurion Bank of Punjab Ltd. It is a settled law that a security cheque does not attract the penal provisions of [SECTION] of [ACT] (vide [PRECEDENT]; [PRECEDENT] decided by Hon'ble High Court of Delhi on 01.03.2011) and thus, it cannot be said that the offence under [SECTION] [ACT] has been made out against the accused.
22. Accordingly, in view of the observations made above, accused stands acquitted of the offence under [SECTION] [ACT]. File be consigned to Record Room. Announced in Open Court 14.12.2013 ([ENTITY]) METROPOLITAN MAGISTRATE-05 NEGOTIABLE INSTRUMENTS ACT DWARKA COURTS, NEW DELHI 14.12.2013