IN THE COURT OF MS RUCHIKA SINGLA METROPOLITAN MAGISTRATE -08, ROOM NO.212 DWARKA, DELHI AXIS BANK Versus VINOD SHARMA CC No.482/1/10 PS: Sabji Mandi U/s-138, [ACT] 1.
Serial No. of the case : 02405R0377712010 2. Date of commission of offence : 19.02.2010 3. Name of the complainant : Axis Bank Ltd. Trishul, 3rd Floor, Law Garden, Ellisbridge, Ahmedabad-380009 4. Name of the accused, and his : [ENTITY] address House no. 3066/7, B-2, Ground Floor, Back portion, Ranjit Nagar, New Delhi 110 008 5. Date of Reserving Judgment : 08.01.2013 6. Date when judgment was : 22.01.2013 pronounced 7. Offence Complained of : [SECTION], [ACT]. Plea of accused : Pleaded not guilty. 9. Final Order : Convicted 10. Date of Order : 22.01.2013 - JUDGMENT - Brief Statement of reasons for the decision of the case
1. It is the case of the complainant that the accused has committed an offence under [SECTION] [ACT] (hereinafter referred to as [ACT]). The Axis Bank v. [ENTITY] complainant has alleged that the accused took a loan of Rs.13,00,000/- from the complainant bank vide Home Loan Account no. PH1260100113012 which the accused undertook to pay in EMIs. However, the accused defaulted in several installments and issued five cheques of Rs. 14,980/- drawn on Jammu & Kashmir Bank Ltd. towards payment of his outstanding dues (the cheques are bearing on. 028636, 028637, 028638, 028651 and 028653 drawn on 01.09.2009, 01.10.2009, 01.11.2009, 01.12.2009 and 01.01.2010 respectively). The said cheques were presented by the complainant and the same was returned dishonoured with the remarks 'Insufficient Funds' vide cheque return advice dated 15.01.2010. Thereafter, it is the case of the complainant that it served upon the accused a legal notice dated 29.01.2010 but despite service of the same, the accused failed to make the payment. Hence the present complaint under [SECTION] [ACT] was filed.
2. Pre-summoning was led by the complainant and the cognizance was taken against the accused vide order dated 28.06.2010. Accused put in his appearance and was granted bail on 27.09.2011. Thereafter, on the basis of prima facie material on record, notice under [SECTION], [ACT] was served upon the accused on 19.10.2011 to which he pleaded not guilty and claimed trial. The accused was permitted to cross-examine the CW. CE was closed vide order dated 27.04.2012. Thereafter, the Statement of the accused under [SECTION], [ACT] was recorded on 01.05.2012 and the matter was adjourned for defence evidence. The accused got examined one Sh. [ENTITY] as DW1. The same was closed vide order dated 04.09.2012. Thereafter, the matter was listed for final arguments. Complainant failed to address arguments despite serving legal notice upon it. Arguments have been advanced by the Ld. Counsel for the accused. I have also perused the record.
3. For the offence under [SECTION] [ACT] to be made out against the accused, the complainant must prove the following points that:
(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
Axis Bank v. [ENTITY]
(c) The said cheque has been presented to the bank within a period of six months from the date of the cheque or within the period of its validity.
(d) The aforesaid cheque, when presented for encashment, was returned unpaid / dishonoured.
(e) The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
(f) The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
4. Hence, firstly, the complainant must prove that the accused had issued the impugned cheques. The cheques are Ex.CW1/3 to Ex.CW1/7. The accused has admitted his signatures on the cheque. However, the accused has alleged that he never took the loan from the complainant. It is the defence of the accused that he has only signed these cheques and handed over the same to a representative of M/s Ganpati Builders for applying for a loan and for verification of his bank account with the Jammu & Kashmir Bank. He further alleges that the representative of M/s Ganpati Builders had assured him that he would procure a loan for the accused. Further, the accused alleges that the loan was given by the complainant to M/s Ganpati Builders directly. He states that he did not execute any document with the complainant. He has, lastly, denied any kind of liability towards the complainant. Hence, it is argued that he is not liable for the alleged offence.
5. All these facts have been alleged by the accused. Hence, the onus to prove these facts lay upon the accused. In his evidence, the accused got examined one Sh. [ENTITY] as DW1, who deposed that he had taken a home loan from the complainant. Further, he deposed that he took the loan for Emerald Heights, Agra, UP from Ganpati Builders. He stated that he had given blank security cheques to the builder's officials. He further deposed that the scheme was no EMI till possession. Apart from this witness, no evidence was led by the accused. However, the court is unable to accept the submission that by examining the said witness, the accused has proved the above mentioned facts as alleged by him. The facts as stated by DW1 Axis Bank v. [ENTITY] do not pertain to the facts and circumstances of the present case. Hence, his testimony is irrelevant. No documentary evidence was led by the accused to prove any of the above mentioned facts.
6. However, the Ld. Counsel for the accused has relied upon the cross-examination of CW1 in his support, wherein CW1 admitted that the loan was disbursed directly to M/s Ganpati Builders. It is submitted by the Ld. Counsel for the accused that actually, there was a tripartite agreement between the complainant, the accused and M/s Ganpati Builders, wherein the loan was granted to M/s Ganpati Builders and the accused had undertaken to repay the same, on allotment of a flat by M/s Ganpati Builders. Questions to the same effect have been put to CW1 in his cross-examination. Hence, the court accepts the submission that there was a tripartite agreement between the complainant, the accused and M/s Ganpati Builders. The court also accepts the submission that the loan was granted at the instance of M/s Ganpati Builders and the loan was also disbursed to it.
7. Then, it is stated by the Ld. Counsel for the accused that the loan became repayable on the handing over of the possession of the said flat to the accused by M/s Ganpati Builders but till date the same was not done. Hence, the loan was not payable by the accused. From the above submission, it is clear that the accused admits that he had to repay the loan, but he alleges that the timing is not correct as till date the possession had not been handed over to him. Now, this fact that the payment was not due, must be proved by the accused. But the accused did not lead any evidence to that effect that the possession was not handed over to him.
8. As per the ordinary course of conduct in these situations where a builder, consumer and bank are involved, the loan is given to the consumer at the instance of the builder. The loan is also disbursed to the builder. But the liability to pay back the loan remains of the consumer. This is to facilitate the purchasing of the property from the builder by the consumer. Now, merely because in the present case, CW1 admitted that the loan was disbursed to M/s Ganpati Builders and that the loan was granted at the instance of M/s Ganpati Builders, shall not imply Axis Bank v. [ENTITY] that the accused has no liability. At the cost of repetition, the accused has himself brought out the facts of the tripartite agreement on record. Again, he admits that the loan was granted for purchasing the flat. He goes on to admit that he was to repay the loan. He also states in his statement under [SECTION], [ACT] that he had handed over the cheques to the representative of M/s Ganpati Builders for procuring the home loan. In absence of any proof to the effect that the liability had not become due, the court is of the opinion, that the complainant has proved that the accused was liable to pay the amount of the cheques in question. Then, it is a relevant fact that the cheques Ex.CW1/3 to Ex.CW1/7 are in the possession of the complainant. The accused says that he is unaware how the cheques came in the possession of the complainant. But he took no steps to retrieve the same from the complainant. There is nothing on record to show that he initiated any kind of proceedings against the complainant for the alleged misuse of the cheques. In view of the same, the court is not inclined to accept the version of the accused.
9. Furthermore, it is pertinent to refer to [SECTION] of the [ACT] which contains provision regarding 'inchoate instrument'. [SECTION] is as under:
"Inchoate stamped Instruments - Where one person signs and delivers to another papers stamped in accordance with the law relating to negotiable instruments then in force in (India), and either wholly blank of having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount co red by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, in any holder in due course of such amount; provide that no person other than a holder in due course shall recovered from the person delivering the instruments anything in excess of the amount intended by him to be paid hereunder."
10. In [PRECEDENT], it was held by Hon'ble High Court of Delhi that:
by putting the amount and the name of payee, there is no material alteration on the cheque under [SECTION] of [ACT]. In Axis Bank v. [ENTITY] fact there is no alteration but only adding the amount and the date .
11. Further, in the case of [PRECEDENT], it was held by Hon'ble High Court that :
" it is possible for drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filed by the payee at a subsequent point of time .
12. Also, in the case of [PRECEDENT] it was held that the cheque could be filled up by anybody if it is signed by the account holder of the cheque. It was further held that body of the cheque need not necessarily be written by the accused and it can be in the handwriting of anybody else or typed on a machine, so long as the accused does not dispute the genuineness of the signatures on the cheque.
13. Therefore, in the light of [SECTION], [ACT] and the above discussed case law, a presumption rises in the favour of the complainant that the accused that he had given the blank cheques to the complainant with an implied authority to fill in the blanks at a later time and present the cheque for encashment. Now, the onus shifts upon the accused to show that such an implied authority was not there or that the cheque was misused by the complainant or that the same were never handed over by him to the complainant. However, this onus has not been discharged by the accused. He has not led any evidence to prove his averment. Hence, in view of the same, the court is of the opinion that the complainant has successfully proved that the cheques Ex.CW1/3 to Ex.CW1/7 were issued by the accused in the favour of the complainant.
14. Secondly, the complainant must show that the cheque was issued in discharge of any legal debt or liability. In the light of the above discussion, it is proved that the accused had taken the loan from the complainant. It is not averred that the liability has been discharged. The accused stated that he is not liable to pay the same. The complete aspect has been discussed Axis Bank v. [ENTITY] above. The accused also argues that there is one other connected matter bearing [CASE NUMBER] pending before this court, where the complainant has filed a complaint under [SECTION], [ACT] on the basis of a cheque for Rs.13.00 lacs. It is submitted that Rs.13.00 lacs is the alleged loan amount. It is stated that both the cases cannot be sustained together. However, the court does not understand why. The alleged cheque of Rs.13.00 lacs was issued on 20.01.2010 i.e. later than the present cheques Ex.CW1/3 to Ex.CW1/7. Furthermore, the complainant has clarified in the complaint [CASE NUMBER] that the cheque for Rs.13.00 lacs had been issued by the accused, as a consolidated instrument, after the dishonour of the EMI cheques. The commission of both the offences is independent of each other. In the opinion of the court, pendency of the matters cannot imply that the other is not maintainable. The objection is not acceptable.
15. Thirdly, to prove the commission of the said offence, the complainant must show that the cheque was presented to the bank within limitation. It is matter of record that the cheques Ex.CW1/3 to Ex.CW1/7 were issued on 01.09.2009, 01.10.2009, 01.11.2009, 01.12.2009 and 01.01.2010 respectively and the same was presented for encashment on 15.01.2010 as per the returning memo Ex.CW1/8 (colly). Hence, this essential ingredient is also made out.
16. Fourthly, the complainant must show that on the presentment of the cheque, the same was returned unpaid or dishonored. As mentioned earlier, the returning memo Ex.CW1/8 is on record which clearly shows that the cheque was returned unpaid on 15.01.2010 for 'Funds Insufficient'.
17. Fifthly, the complainant must show that it had issued a legal notice upon the accused within the stipulated period of 30 days of the dishonour of the cheque. The complainant has placed on record the copy of legal notice dated 28.01.2010 which is proved as Ex.CW1/9. The postal receipts are Ex.CW1/10 to Ex.CW1/12. The complainant has also proved the proof of delivery as Ex.CW1/13. Accused has denied the receipt of legal notice. However, the address of the accused as mentioned on the notice and as furnished by him in the bail bonds is the same. In Axis Bank v. [ENTITY] this regard, it has been held by the Hon'ble Supreme Court has held in [PRECEDENT] that when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of [SECTION] of the Act stands complied with. Hence, as the legal notice has been sent to the correct address, this ingredient is also fulfilled.
18. Lastly, the complainant must show that the accused has failed to make the payment within 15 days of the receipt of legal notice. This is a matter of record. The accused has admitted that he did not make payment to the complainant. His only defence is that he is not liable to pay the said amount. This aspect has already been discussed earlier.
19. In view of the above discussion, the court is satisfied that the complainant has successfully proved beyond reasonable doubts that the accused has committed the offence under [SECTION], [ACT]. Hence, the accused is convicted for the said offence.
List the matter for arguments on quantum of sentence.
ANNOUNCED IN THE OPEN (RUCHIKA SINGLA) COURT ON 22.01.2013 METROPOLITAN MAGISTRATE-08 DWARKA COURTS, DELHI Axis Bank v. [ENTITY]