[ad_1]
Bangalore District Court
Hdfc Bank Limited vs Jagadish Kumar K on 9 May, 2025
KABC030117532024
IN THE COURT OF XXXVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
~:PRESENT:~
SRI. VEERESH KUMAR C.K. B.A.L, LL.M, CC [Cyber Laws]
XXXVIII ADDL. CHIEF METROPOLITAN MAGISTRATE
BENGALURU
C.C. No.6204/2024
Date Of Judgment: 9th day of May, 2025
M/s.HDFC Bank Limited
a company registered under the
Companies Act 1956 and having its
Registered office at HDFC Bank
House, Lower Parel- (West),
Mumbai-400 013 and having branch
office at: Ground Floor,
Rashtrothana Bhavan, Municipal
No.3/1, Ward No.77
Nrupathunga Road, Bengaluru-560 001
Rep. By its Authorized Signatory
Sri.Sai Mallikarjuna Reddy, 23 yrs ...Complainant
(By Sri.Mariappa.M.S, Advocate)
----//VERSUS//----
Sri. Jagadish Kumar.K
S/o.Kodhandappa, 38 yrs.
No.568, near Human Rights Office
Bengaluru-560 067
also at:
G4S Facility Services India Pvt. Ltd.
Salarpuria Sattya Magnificia, No.78
7th Floor, Udayanagar, near Tine Factory
Bengaluru-560 016. ...Accused
(By Sri.T. Anand, Advocate )
KABC030117532024 Judgment C.C No.6204/2024
-: 2:-
:: J U D G M E N T :
:
T
his case emanates from a private complaint filed by thecomplainant alleging that the accused has committed
the offence punishable under section 138 of the Negotiable
Instruments Act, 1881 r/w.25(1) of the PASS Act, 2007, by
issuing standing instruction for Debit authorization form for
an amount of Rs.4,26,371.66/-, as the same was dishonored.
2. The Essential Facts:
It is the case of the complainant that the complainant is
functioning in the address stated in the cause title. It is a
public limited company carrying on business of financial
services including personal loan schemes. During the course
of business of the complainant bank, the accused approached
the complainant for taking personal Loans and also took the
said loan by executing a loan agreement vide No.123508058
and also under took to repay the same with interest in equated
monthly installments under the said agreement. The accused
KABC030117532024 Judgment C.C No.6204/2024
-: 3:-
also undertook to pay monthly installments regularly. The
accused towards discharge of liability issued standing
instruction for repayment of loan to debit account for the
amount of Rs.4,26,371.66 from the account bearing
No.50100329557492 to be transferred from the account of the
accused every month. The complainant has also executed
Auto Debit instruction on 26/12/2023 towards repayment of
loan amount of Rs.4,26,371.66. But the said auto debit
instruction returned dishonored on 26/12/2023 for the
reason ‘funds insufficient’ vide SL No.S123508058025-1.
After intimation of dishonor of the said standing instruction
within the prescribed time, the complainant got issued a legal
notice dated 5/01/2024 calling upon the accused to pay sum
of Rs.4,26,371.66 as per the agreement. The said notice was
duly served on the accused. In-spite of the same, accused has
not come forward to make payment. Thereby accused has
committed an offence U/S.138 of N.I.Act r/w.Section 25(1) of
KABC030117532024 Judgment C.C No.6204/2024
-: 4:-
the Payment and Settlement Systems Act, 2007. Hence, the
present complaint.
3. On presentation of the complaint, this Court has
taken cognizance for the offence punishable U/sec. 138 of N.I.
Act. The summons was issued to the accused. In pursuance to
the service of summons, the accused has entered his
appearance through his Counsel and was enlarged on bail.
The accused also filed application U/S.145(2) of Cr.P..C to
enter into defence against the case of the complainant.
4. The complaint copies were furnished to the accused
as per Sec. 207 of Cr. P. C. The plea was recorded under Sec.
251 of Cr.P.C. The accusation was read over to the accused
and to which he has pleaded not guilty and claimed to be
tried.
5. To substantiate the case, the authorized signatory
of complainant is examined as PW.1 and has filed Affidavit in
KABC030117532024 Judgment C.C No.6204/2024
-: 5:-
lieu of sworn statement and got marked documents as Ex.P.1
to P.8. After completion of the evidence of complainant, the
statement of the accused U/Sec. 313 of Cr.P.C. was recorded.
He has denied all incriminating circumstances appearing
against him. In spite of opportunities, the accused has not
cross examined the complainant/PW.1, as a result cross of
PW.1 was taken as Nil. The accused has not led the defence
evidence on his behalf.
6. Heard the arguments of the learned counsel for
complainant. Accused has not advanced any arguments.
Meticulously perused the available materials on record.
7. Based upon the above materials the following points
for consideration are as follows:
POINTS FOR CONSIDERATION
1) Whether the complainant proves that the
accused has issued Auto Debit Instruction
for repayment of loan amount of
Rs.4,26,371.66 in favour of complainant in
discharge of legally enforceable debt and
KABC030117532024 Judgment C.C No.6204/2024
-: 6:-
same is dishonored with an endorsement as
“Funds Insufficient” and thereby committed
an offence punishable U/Sec. 138 of N.I. Act
r/w.Section 25(1) of the Payment and
Settlement Systems Act, 2007?
2) What order ?
8. The above points for consideration are answered as
below:
Point No.1: In the AFFIRMATIVE
Point No.2: As per final order, for the
following:-
::REASONS::
9. On Point No.1: The narration of the entire
averments of the complaint, as narrated at the inception, is
desisted in order to avoid the repetition.
10. However, it is well settled that whenever
complainant alleged that the accused has committed an
offence punishable U/Sec.138 of N.I. Act, obviously, the
complainant has to establish that there was a legally
enforceable debt and to discharge the said legally enforceable
KABC030117532024 Judgment C.C No.6204/2024
-: 7:-
debt, the accused has issued the instrument and
subsequently the said instrument has been dishonored.
Keeping in view of these main and important ingredients of
section 138 of N.I. Act, proceed to discuss the evidence
available on record.
11. As already been stated above, the complainant has
examined its Authorized Signatory as PW.1. He has filed
affidavit in lieu of his examination in chief U/Sec.145 of N.I.
Act reiterating the entire averments of the complaint and got
marked Ex.P.1 to 9.
12. The Ex.P.1 is the Dishonor Memorandum, Ex.P.2 is
the S.I. Debit authorization form, Ex.P.3 is the copy of Legal
notice, Ex.P4 is the postal receipt, Ex.P.5 is the postal
acknowledgment, Ex.P.6 is the returned postal cover, Ex.P.7 is
the SPA and Ex.P.8 is the account statement. On perusal of
Ex.P.2, makes it clear that it supports the stand taken by the
complainant. The instrument is to be presented for
KABC030117532024 Judgment C.C No.6204/2024
-: 8:-
encashment within the period of its validity from the date on
which the instrument has been issued. The Ex.P.2 instrument
was presented on 26/12/2023, which is within the prescribed
period.
13. The complainant is required to issue notice, in
writing, to the drawer/accused making a demand for
repayment of the said instrument amount within 30 days from
the date of receipt of information about the dishonor of the
instrument. Ex.P.3 is the copy of Legal notice, Ex.P4 is the
postal receipt, Ex.P.5 is the postal acknowledgment, Ex.P.6 is
the returned postal cover. Thereby, it is found that the
complainant has issued legal notice within 30 days from the
date of knowledge of dishonor of instrument. Thus, the
provisions of clause (a) & (b) of proviso to Sec.138 of N.I. Act
have been complied with.
14. The drawer/accused is entitled to have 15 days time
to make the payment of the instrument amount. Even after
KABC030117532024 Judgment C.C No.6204/2024
-: 9:-
elapse of 15 days time for making payment the accused has
not made payment. Further the clause (b) of Sec. 142 of N.I.
Act makes it clear that the complaint has to be filed within 30
days from the date of cause of action arose. The endorsement
made by this Court on the complaint reveals that the
complainant presented the complaint on 20/02/2024 and as
such, this complaint is well within the period of limitation.
Therefore, this Court is of the considered opinion that the
complainant has complied all the necessary components
which attracts section 138 of N.I. Act R/w sec.25 of PASS Act.
Even the accused has not challenged any of the mandatory
requirements to be complied by the complainant.
15. As per the Judgment of Hon’ble Supreme in case of
APS FOREX SERVICES PRIVATE LTD., vs. SHAKTI
INTERNATIONAL FASHION LINKERS AND ORS., reported in
[2020] ACR 457 wherein it is held that, once accused has
admitted issuance of cheque which bears his signature, there
KABC030117532024 Judgment C.C No.6204/2024
-: 10:-
is presumption that there exists legally enforceable debt or
liability under Sec.139 of N.I. Act. In the present case the
issuance of the instrument and the signature on the
instrument is not disputed nor contested by the accused. The
said decision is aptly applicable for raising presumption in
favour of complainant.
16. Therefore, when once it is proved that the
instrument belonged to the accused coupled with proof that
the instrument bears the signature of the accused. The
presumption must be that the instrument was issued for a
legally enforceable debt or liability. As this Court holds that
the complainant has proved the execution of Ex.P.2,
instrument and the accused failed to rebut the presumption
then this Court has to draw a presumption that the
instrument has been drawn for lawful consideration. As a
result, the presumption is drawn in favour of complainant.
KABC030117532024 Judgment C.C No.6204/2024
-: 11:-
17. The accused has not rebutted the presumption
raised against him. The accused has not cross-examined the
complainant witness nor challenged the documents exhibited
by the complainant. Even the accused has not led the defence
side evidence. There is nothing on record to doubt the case of
the complainant and documents. In view of the same there is
absolutely no embargo to consider the case of the complainant
to hold that the accused is guilty of the alleged offence.
18. From the evidence on record, it is clear that the
accused has failed to rebut the presumption and complainant
has proved the existence of the legally recoverable debt and
also issuance of instrument for discharge of the said debt.
Admittedly the complainant has complied with all
requirements of Section 138 of the N.I. Act and sec. 25 (1) of
PASS Act. The statutory notice as required by law had been
issued. The version of complainant is certain and stands
proved. Hence, the above point is answered accordingly.
KABC030117532024 Judgment C.C No.6204/2024
-: 12:-
19. On Point No. 2 : In view of the above findings the
accused is found guilty for the offence punishable under
Section 138 of N.I. Act R/w 25 (1) of PASS Act. It is just and
proper to sentence the accused to pay fine equivalent to the
instrument amount along with appropriate penalty. Thereby,
proceed to pass the following:
:: ORDER ::
• In exercise of Sec. 264 of Cr.P.C., the accused is
convicted for the offence punishable U/Sec.
138 of N.I. Act r/w. Section 25(1) of the
Payment and Settlement Systems Act, 2007 and
sentenced to pay fine of Rs.4,40,000/-, and in
default of payment of fine the accused is
sentenced to undergo simple imprisonment for
a period of one year.
• Out of fine amount of Rs.4,40,000/-, a sum of
Rs.4,30,000/- shall be paid to the complainant
as compensation as per Section 357 (3) of
Cr.P.C and the remaining amount is defrayed
to the state as its expenses.
KABC030117532024 Judgment C.C No.6204/2024
-: 13:-
• Office is directed to supply the copy of this
Judgment to the accused, free of cost.
(Dictated to the Stenographer on computer, typed by him, same was corrected by me
and then pronounced in the Open Court, on this the 9th day of May, 2025.)(VEERESH KUMAR C.K.)
XXXVIII ADDL.C.J.M.,
BENGALURU.
ANNEXURE
1. List of Witnesses examined for Complainant:
PW.1: Sri.Sai Mallikarjuna Reddy.
2. List of Witnesses examined for Defence:
– Nil –
3. List of Documents marked for Complainant:
Ex.P.1 : Dishonor Memorandum. Ex.P.2 : S.I. Debit Authorization form. Ex.P.3 : Notice. Ex.P.4 : Postal Receipt. Ex.P.5 : Postal Acknowledgment. Ex.P.6 : Returned postal cover Ex.P.7 : SPA Ex.P.8 : Account Statement.
4. List of Documents marked for Defence:
– Nil –
(VEERESH KUMAR C.K.)
XXXVIII ADDL.C.M.M.,
BENGALURU.
[ad_2]
Source link