Bangalore District Court
Hdfc Bank Ltd vs Mr. C Vijay Anand on 21 January, 2025
KABC0C0082102023
IN THE COURT OF XIV ADDL.CHIEF JUDICIAL
MAGISTRATE, MAYOHALL UNIT, BENGALURU
Dated this the 21st day of January, 2025
Present: SANTHOSH S.KUNDER, B.A.,LLM,
XIV Addl.C.J.M., Bengaluru.
JUDGMENT UNDER SECTION 355 of Cr.P.C
C.C.No.52511/2023
Complainant HDFC Bank Ltd.,
Branch Office at Municipal No.3/1,
Ground Floor,
Rathtrotthana Bhavan,
Ward No.77, Nrupathunga Road,
Bengaluru-560001.
Represented by its Legal Officer,
Mrs.Anna Febronia Raymond.
(By Sri.Jai.M.Patil, Kumar B.M.,
Chethan.S and
H.Raghavendra, Advocates)
V/s
Accused Mr.C.Vijay Anand,
S/o Mr.Chandravelu Murugappa Chetty,
Age 48 years,
Ff-1, Anuadi Comforts-2,
Riches Garden Road,
Raghavendra Nagar,
4th Main, Kalkere New Extension,
Ramamurthy Nagar,
Bengaluru-560 016.
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Also at:-
Mr.C.Vijay Anand
Working at Tenova India Private Limited,
No.108/D, 6th Main, 3rd Phase,
Industrial Area,
Bengaluru-560 058.
(By Sri.Sabu Kalabilagi, Advocate)
Offence U/s 138 of Negotiable Instruments Act
Plea of the Pleaded not guilty
accused
Final Order Accused is held guilty & convicted
This complaint is filed against the accused for the
offence punishable under Section 138 of the Negotiable
Instruments Act.
2. Complaint averments in brief:-
Complainant is a banking company, incorporated
and registered under the Companies Act. The accused has
availed personal loan from the complainant, vide loan
account bearing No.92926863. He had agreed to repay the
loan in EMIs. Under the said contract, the accused was in
due of a sum of ₹2,62,227/-. Towards payment of the
same, he has drawn cheque bearing No.343315 dated
02.09.2022 on Axis bank Ltd., in favour of the
complainant. When the complainant presented the said
cheque for encashment, it was returned unpaid on
06.09.2022 with shara 'funds insufficient'. Thereafter, the
complainant has issued a legal notice dated 28.09.2022 to
the accused through RPAD calling upon him to pay the
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cheque amount. In spite of service of notice on 29.09.2022,
he has failed to pay the cheque amount. Therefore, this
complaint is filed.
3. During pre-cognizance stage, the complainant
examined its Legal Officer Sri.Hemanth Kumar.R as PW-1.
This court took cognizance of the offence punishable under
Section 138 of Negotiable Instruments Act and issued
summons to the accused.
4. Pursuant to the summons, accused has
appeared before this court. He was enlarged on bail. After
compliance of Sec.207 of Cr.P.C, this court recorded his
plea. He has pleaded not guilty and claimed to be tried.
5. During trial, the complainant got substituted new
power of attorney-Mrs.Anna Febronia Raymond.
Accordingly, complaint cause-title of the complaint was
amended. New power of attorney is examined as PW-2 and
Ex.P.1 to 9 marked through her. Ex.P10 marked for the
complainant during cross-examination of PW-2.
6. After the closure of complainant's evidence,
incriminating evidence was put to the accused by
examining him under Section 313 of Cr.P.C. He has denied
the incriminating evidence.
7. By way of defence, the accused has stepped into
witness-box to examine himself as DW-1 and got marked
Ex.D-1 to 5.
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8. Heard the arguments on both sides. In addition
to oral argument, advocate for the accused filed notes of
argument.
9. Perused the records.
10. Points for consideration are:
1. Whether the complainant has proved
that accused has drawn cheque bearing
No. 343315 dated 02.09.2022 for
₹2,62,227/-, on Axis Bank Ltd, Peenya
Branch, in favour of the complainant
towards discharge legally recoverable debt
and the said cheque was dishonored for
the reason 'funds insufficient' and in spite
of service of statutory notice dated
28.09.2022, he has failed to pay the
amount covered under the dishonored
cheque and thereby committed the offence
punishable under Section 138 of N.I.Act?
2. What order?
11. The above points are answered as under:
Point No.1 : In the Affirmative.
Point No.2 : As per final order for the following:
REASONS
12. Point No.1:-The case of the complainant is that
the accused had availed personal loan from the
complainant and for discharge of said loan liability, he has
drawn the cheque in question, which on presentation, was
dishonored for the reason 'funds insufficient' and in spite
of service of demand notice issued under Section 138(b) of
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N.I.Act, he has failed to pay the cheque amount and
therefore, the present prosecution is launched.
13. The complainant has examined its Legal Manager
Mrs.Anna Febronia Raymond as PW-2. As many as ten
documents were marked for the complainant. Ex.P-1 is
cheque in question; Ex.P-2 is bank endorsement; Ex.P-3 is
copy of legal notice dated 28.09.2022; Ex.P-4 and 5 are
postal receipts; Ex.P-6 and 7 are postal acknowledgment
cards; Ex.P-8 is the copy of power of attorney; Ex.P-9 is
certified copy of extract of Board resolution dated
15.04.2023; and Ex.10 is the loan account statement of
the accused.
14. It was argued by the learned counsel for the
complainant that the accused has failed to discredit the
testimony of PW-2 and the documents marked for the
complainant. The accused has not disputed borrowing of
loan. It was submitted that the accused agreed to repay
the loan in installments. But, he has defaulted in making
the payment of installments. It was argued that, though
the accused has contended that he has paid 31
installments, he has not produced document to
substantiate the same. On the contrary, loan statement at
Ex.P10 shows that he has overdue loan, repayable to the
complainant. The complainant has produced ample
evidence before the court to show that as on the date of
drawing of the cheque, he was outstanding loan of
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₹2,62,227/-. He has submitted that the cheque in question
was drawn by the accused to pay the loan outstanding and
the said cheque was dishonored. Therefore, he is liable for
conviction.
15. On the other hand, learned counsel for the
accused has argued that out of sanctioned loan of
₹40,20,190/-, a sum of ₹39,93,589/- was disbursed to the
accused which is evident from Ex.D1. It was argued that
the cheque in question was taken by the complainant
before the sanction of the loan for the purpose of activating
ECS. Therefore, offence under Section 138 of N.I. Act does
not attract. While pointing out the cross-examination of
PW-2, learned counsel for the accused submitted that
PW-2 has admitted that the accused has paid 20 EMIs
which is also finding support from Ex.D3. Therefore, it was
submitted that the accused has proved that he is not guilty
of the offence and thus, he is entitled for acquittal.
16. Now coming to the evidence of PW-2, who during
her cross-examination dated 01.02.2024 stated that, in the
year 2019, accused has approached the complainant for
personal loan of ₹40,00,000/-. It is elicited that the
accused has issued the subject cheque at the time of
availing the loan. However, he is unable to answer as to
how many cheques were taken from the accused at the
time of sanction of loan. When it was suggested that, at the
time of availing loan, the accused has issued cheques from
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Sl.No.343312 to 343320, PW-2 has pleaded ignorance.
When it was questioned, if the amount mentioned in the
cheque towards principle or interest, PW-2 has replied
that, it was issued towards payment of EMI. PW-2 has
denied the suggestion that the signature appearing on the
cheque does not belong to the accused.
17. During cross-examination dated 14.08.2024 it is
elicited as under:-
"ನಿಪಿ.10 ರಲ್ಲಿ ಕಂಡು ಬರುವಂತೆ ಚೆಕ್
ನಂ.343314 ಇದು ದಿ.06.09.2019 ಮಾನ್ಯಗೊಂಡಿದೆ
ಎಂದರೆ ಸರಿ. ಅದು ಮೊದಲ ಕಂತಿನ ಚೆಕ್ಎಂದು ಸಾಕ್ಷಿಯು
ಮುಂದುವರೆದು ಹೇಳುತ್ತಾರೆ. ನಿಪಿ.10 ರಲ್ಲಿ ಕಂಡು
ಬರುವಂತಹ payment received ಎಂಬ
ನಮೂದುಗಳು ECS payment ಗಳು ಇರುತ್ತವೆ.
ನಿಪಿ.10 ರ ಪ್ರಕಾರ ಆರೋಪಿಯು ಒಟ್ಟು 20 ಕಂತುಗಳನ್ನು
ಕಟ್ಟಿರುತ್ತಾರೆ. ಒಂದು ಕಂತಿನ ಮೊತ್ತ ರೂ.87,409/-
ಆಗಿರುತ್ತದೆ. ಆರೋಪಿಯು ಒಟ್ಟು ರೂ.18,34,000/-
ಗಳನ್ನು ಕಟ್ಟಿರುತ್ತಾರೆ. ಈವರೆಗೆ ಆರೋಪಿಯು ಒಟ್ಟು
ರೂ.23,84,000/-ಗಳನ್ನು ಕೊಡಲು ಬಾಕಿ ಇರುತ್ತಾರೆ.
ಅದರ ಪೈಕಿ ಅಸಲು ಎಷ್ಟು ಮತ್ತು ಬಡ್ಡಿ ಎಷ್ಟು ಎಂದು
ಕೇಳಿದಾಗ ರೂ.23,84,000/- ದಲ್ಲಿ ಅಸಲು ಮತ್ತು ಬಡ್ಡಿ
ಸೇರಿದೆ ಎಂದು ಸಾಕ್ಷಿಯು ಹೇಳುತ್ತಾರೆ. ನಿಪಿ.10 5 ನೇ
ಪುಟದಲ್ಲಿರುವ ಕ್ರಮ ಸಂಖ್ಯೆ. 1 ರಿಂದ 30 ರ
ನಮೂದುಗಳು ಆರೋಪಿಯು ಕಟ್ಟಲು ಬಾಕಿ ಇರುವ
ಕಂತುಗಳು ಇರುತ್ತವೆ. ಆ ಕಂತುಗಳು ಬಾಕಿ ಇರುವಂತಹ
ಸಮಯದಲ್ಲಿ ಆರೋಪಿಯು ನಿಪಿ.1 ಚೆಕ್ಕನ್ನು ಕೊಟ್ಟಿಲ್ಲ."
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"XXXXX ನಿಪಿ.1 ಚೆಕ್ಕಿನಲ್ಲಿರುವ ಆರೋಪಿಯ ಸಹಿ
ನೀಲಿ ಇಂಕಿನಲ್ಲಿದೆ ಎಂದರೆ ಸರಿ. ಅದರಲ್ಲಿರುವ ಬೇರೆ ಕೈ
ಬರವಣಿಗೆಗಳು ಕಪ್ಪು ಇಂಕಿನಲ್ಲಿದೆ ಎಂದರೆ ಸರಿ. XXXXX"
"ನಿಪಿ.10 ರ ಪ್ರಕಾರ ದಿ.06.07.2024 ಕ್ಕೆ
ಆರೋಪಿಯು ಒಟ್ಟು ರೂ.22,63,744/-ಗಳನ್ನು ಕೊಡಲು
ಬಾಕಿ ಇರುತ್ತಾರೆ. XXXXXX"
"XXXXX ಆರೋಪಿಗೆ ಒಟ್ಟು ರೂ.39,93,589/-
ಗಳನ್ನು ಡಿಸ್ಬರ್ಸ್ ಮಾಡಲಾಗಿದೆ. XXXXXX"
18. Coming to the defense evidence, where during
further examination-in-chief dated 03.09.2024,
accused/D.W-1 has deposed that, out of sanctioned loan of
₹40,20,190/-, a sum of ₹39,93,589/- was disbursed and
credited to joint account of himself and his wife which is
produced at Ex.D-5. He has claimed that he has repaid
about ₹28,00,000/- and odd. He has produced Ex.D1 to 5.
Ex.D1 is loan disbursement advice; Ex.D2 is copy of loan
agreement; Ex.D3 is loan repayment schedule; Ex.D4
Section 65(B) certificate and Ex.D5 is bank account
statement.
19. DW-1 was cross-examined by the learned
counsel for the complainant. During cross-examination
dated 29.06.2024, DW-1 has admitted that he is residing
in the address shown in the cause-title of the complaint for
more than 10 years. He has admitted that he has availed
personal loan from the complainant. He has asserted that
he used to pay the loan installments through ECS. He has
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stated that the signature appearing on Ex.P6 (postal
acknowledgment card) does not belong to him. However,
when signature appearing on the cheque. i.e., Ex.P1(a)
confronted to him and asked, if it is his signature, DW-1
had answered that it looks like his signature. He has
denied the suggestion that signature appearing on Ex.P1
and 6 are similar. He has stated that he has to check as to
who has affixed signature on Ex.P6. It is elicited that he
has not issued reply to legal notice. Relevant portion of
deposition of D.W-1 dated 29.06.2024 is extracted as
under:-
"XXXXX Ex.P.1(a) looks like my
signature. I am deposing falsely
that Ex.P.1(a) looks like my
signature. I am deposing falsely
that Ex.P.1(a) looks like my
signature although it is my
signature. It is false to suggest that
Ex.P.1(a) and signature appearing
in Ex.P.6 are similar. I have to
check as to who has signed on
Ex.P.6."
20. During cross-examination dated 19.07.2024, he
has stated that in his absence, correspondence would be
received by his wife and children. He has admitted that he
has availed loan of ₹26,00,000/- from the complainant. He
has admitted that loan account number is 92926863. He
does not remember the number of the EMIs paid by him.
Loan account statement confronted to DW-1 and the same
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is marked as Ex.P10. DW-1 has claimed that before the
disbursement of loan, he has given three cheques to the
complainant; but he does not remember if those cheques
were signed or not. He has admitted that Ex.D1 belongs to
him.
21. During further cross-examination dated
30.09.2024, he has claimed that he used to pay loan
installments through bank transfer, online payment and
through cash. He has further claimed that he used to make
payment of installments across bank counter also.
However, he does not remember the exact amount which
he had paid by cash. He has stated that, receipts have
been issued to him by the bank for having received the
installments in cash. He has claimed that he has paid
₹27,00,000/- and odd amount to the complainant towards
loan.
22. It is pertinent to note that the accused admits
that he has issued cheques from serial No.343311 to
343320 to the complainant. This is forth-coming from the
suggestion to PW-2 during cross-examination dated
15.03.2024 which reads as under;
"XXXXX ಸಾಲ ತೆಗೆದುಕೊಳ್ಳುವ ಸಂದರ್ಭದಲ್ಲೆ
ಆರೋಪಿಯಿಂದ ಚೆಕ್ಕು ಸಂಖ್ಯೆ 343311 ರಿಂದ
343320 ರವರೆಗಿನ ಚೆಕ್ಕುಗಳನ್ನು ನೀವು
ಪಡೆದುಕೊಂಡಿದ್ದೀರಿ ಎಂದರೆ ಸಾಕ್ಷಿ ನನಗೆ ಗೊತ್ತಿಲ್ಲ
ಎನ್ನುತ್ತಾರೆ. XXXXX''
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23. Further, the accused has categorically admitted
his signature and the cheque by giving suggestion to PW-2.
During cross-examination dated 14.08.2024 to the fact
that signature of the accused on the cheque is in blue ink.
The said portion of deposition of PW-2 is extracted here
under:-
"XXXX ನಿಪಿ.1 ಚೆಕ್ಕಿನಲ್ಲಿರುವ ಆರೋಪಿಯ ಸಹಿ
ನೀಲಿ ಇಂಕಿನಲ್ಲಿದೆ ಎಂದರೆ ಸರಿ. XXXXX''
24. After going through the evidence on record, it is
forthcoming that the accused does not dispute availing
loan of ₹26,00,000/- from the complainant. However, he is
claiming that he has repaid about ₹27,00,000/- and odd to
the complainant. But, to substantiate the said contention,
no documents produced. Documents at Ex.D1 to 5 do not
support his contention that he has repaid ₹27,00,000/-
and odd to the complainant.
25. As could be seen from Ex.P10 and Ex.D1 that
loan of ₹40,20,190/- was sanctioned by the complainant to
the accused on 05.08.2019, vide loan account
No.92926863 and a sum of ₹39,93,589/- was disbursed to
him on the same day. As could be seen from Ex.D3
(payment schedule), the tenure of the loan is 60 months
and repayable in equated installments. As evident from
Ex.P10 (loan account statement) at page Nos.4-5 that the
accused has paid only 21 installments between 06.09.2019
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and 06.05.2021; and that as many as 30 EMIs were
remained unpaid for the reason 'insufficient funds'. As on
the date of Ex.P-10-loan statement, I.e., 06.07.2024,
overdue loan was ₹22,63,744/-. As evident from this
document, as on 31.08.2022, overdue EMI amount was
₹4,29,800/-. Cheque at Ex.P1 is dated 02.09.2022. Thus,
as on the date of cheque, outstanding payable by the
accused was more than the amount appearing on the
cheque. The accused has failed to substantiate his defence
that he has repaid more than ₹27,00,000/- and odd to the
complainant towards the loan amount and that he has no
outstanding as contended by the complainant.
26. As noted above, the accused has admitted his
signature on the cheque. Nevertheless, intelligently he has
tried to take away the said admission by saying that
Ex.P.1(a) signature looks like his signature. From the
answers elicited during the cross-examination of DW-1, it
can be gathered that the accused used to put to different
signatures at different time. The said portion of cross-
examination dated 19.07.2024 reads as under:-
"I used to put similar signature on
all the legal documents including
bank documents/cheques. On
non-legal documents I used to
make short signatures. It is true
that my signature on vakalath and
bail bond differs. Witness states
that he has made short signature
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on bail bond. It is true that my
signature on plea and 313
statement differs. Witness states
that he has made short signature
and long signature on 313
statement. It is false to suggest
that I have deliberately affixed
short signature and long signature
on 313 statement. Afte realizing
that affixing short signature on
court document is not proper I
have also fixed long signature on
313 statement."
27. At one breath, the accused is contending that
signature is appearing on the cheque does not belong to
him and on the other, he is asserting (by way of suggestion
to P.W-1) that he has given cheque bearing No.343311 to
343320 to the complainant at the time of availing the loan.
It is equally important to note that the accused says that
Ex.P1(a) looks like his signature. Thus, it is clear that the
accused has taken contradictory stand, in so far as
signature on the cheque is concerned. Answers elicited in
his cross-examination shows that he used to make
different signatures at different time. He has stated that on
non-legal documents, he used to make short signatures. At
the same time, he has stated that he has made short as
well as long signature on the Section 313 of Cr.P.C
statement. This goes to show that the accused makes
different signatures at different time as per his
convenience. When the accused has admitted that he has
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issued the cheques (including the subject cheque) at the
time of availing the loan, in the absence of specific defence
regarding dispute to the signature, this court holds that
the complainant has proved execution of Ex.P1 by the
accused. As noted above, as on the date of cheque, he had
outstanding loan liability exceeding the cheque amount.
Therefore, this court holds that the cheque was drawn for
discharge legally recoverable debt.
28. Learned counsel for the accused has placed
reliance on the judgment of Hon'ble High Court of Delhi in
Vihan Exims Company Pvt.Ltd. & Ors V/s State,
Government of NCT of Delhi & Ors. (Text not produced)
to submit that the cheques issued towards security cannot
be presented prior to the loan maturity and thus, offence
under Section 138 of NI Act is not made out.
29. Learned counsel for the accused produced
judgment of Honb'le Supreme Court in the case of
Sri.Dattatraya V/s Sharanappa; [(2024) 8 SCC 573] and
in the case of Prem Raj V/s Poonamma Menon & Anr;
[(2024) 6 SCC 143] to submit that the cheques issued for
security does not attract the offence under Section 138 of
NI Act.
30. I have perused the judgments produced by the
learned counsel for the accused. In Sri.Dattatraya's case
(supra) the Hon'ble Supreme Court held that the standard
proof for establishing the defence by the accused is not as
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that of the standard of proof which the complainant
requires to prove in a prosecution under Section 138 of NI
Act. In Prem Raj case (supra), Hon'ble Supreme Court, the
sole issue that was required to be considered by the
Hon'ble court was, whether criminal proceedings can be
initiated and the accused therein held guilty with natural
consequences thereof to follow, in connection with a
transaction, in respect of which a decree by a competent
court of civil jurisdiction, already stands passed. In the
said case, the facts were that civil suit for recovery of
money was filed by the respondent therein, based on the
cheque and at the same time, prosecution was also
initiated under Section 138 of NI Act. The trial court
decreed the suit and the same was confirmed in appeal. In
138 proceedings, the trial court convicted the accused and
the judgment of conviction confirmed by the first appellate
court. Revision filed before the Hon'ble High Court was also
dismissed. Hon'ble High Court by taking into consideration
that observation of the civil court that the cheque was
issued only for the purpose of security, allowed the appeal
and set aside the judgment of conviction passed in Section
138 proceedings. The facts involved in the said case and
the one involved in the present case are altogether different
and thus the ratio laid down in the said judgment is not
applicable to the case on hand.
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31. In the case on hand the complainant has
produced sufficient evidence to prove that the cheque was
drawn by the accused for discharge of outstanding loan
liability. Indisputably, the said cheque was dishonored for
the reason 'funds insufficient' vide bank endorsement at
Ex.P2 dated 06.09.2022. After receipt of information from
the bank regarding dishonored of the cheque, on
28.09.2022 the complainant issued a demand notice to the
accused to his residence as well as office address.
Admittedly, the accused lives in the very address to which
the notice was posted. Ex.P6 proves service of demand
notice on the accused. Admittedly, the accused has neither
issued reply nor complied with the demand made in the
notice. Having all the ingredients of the offence under
Section 138 of NI Act have been proved, offence is deemed
to have been committed. The accused has failed to make
out a probabilize his defence(s) to dislodge the
presumptions under Section 118(a) and 139 of N.I.Act.
Therefore, he is held guilty of the offence under Section
138 of N.I.Act. Accordingly, I answer Point No.1 in the
Affirmative.
32. Point No.2:-Punishment prescribed for the
offence under Section 138 of Negotiable Instruments Act is
imprisonment for a period which may extend to two years
or with fine which may extend to twice the amount of the
cheque or with both. Considering the facts and
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circumstances of this case, year of transaction and the rate
of interest stipulated under the loan agreement as being
reflected in Ex.P-10, this court is of the considered view
that it is just and desirable to impose fine of ₹3,50,000/-
to the accused and out of the said amount, it just and
proper to award a sum of ₹3,45,000/- as compensation to
the complainant as provided U/s 357(1) (b) of Cr.P.C and
the remaining sum of ₹5,000/- shall go to the State. In
view of the discussions made while answering Point No.1, I
proceed to pass the following:
ORDER
Acting under Section 255(2) of Cr.P.C.,
accused is convicted for the offence
punishable under Section 138 of Negotiable
Instruments Act.
Accused is sentenced to pay a fine of
₹3,50,000/-. In default to pay fine, he shall
undergo simple imprisonment for a period of
three months.
Out of the realized fine amount, a sum of
₹3,45,000/- is ordered to be paid to the
complainant as compensation and the
remaining sum of ₹5,000/- shall be
remitted to State.
Bail bonds executed by accused shall
stand cancelled.
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KABC0C0082102023
Accused is entitled for a copy of this
judgment free of cost which shall be
supplied to him forthwith.
(Dictated to the Stenographer, transcript computerized by her, revised
corrected and then pronounced by me in the open Court on this the 21 st
day of January, 2025)
( SANTHOSH S.KUNDER )
XIV Addl. C.J.M., Bengaluru.
ANNEXURES
List of witness examined for complainant:
PW.1 Hemanth Kumar.R PW.2 Mrs.Anna Febronia Raymond
List of documents marked for complainant:
Ex.P.1 Cheque Ex.P.2 Bank endorsement Ex.P.3 Copy of legal notice dated 28.09.2022
Ex.P.4 & 5 Postal receipts-2
Ex.P.6 & 7 Postal acknowledgments cards-2
Ex.P.8 Copy of Power of Attorney
Ex.P.9 Certified copy of extract of Board
resolution dated 15.04.2023
Ex.P.10 Loan account statement of the
accused
19
C.C.No.52511/2023
KABC0C0082102023
List of witness examined for defence:
DW.1 C.Vijayanand
List of documents examined for defence:
Ex.D.1 Loan disbursement advice
Ex.D.2 Copy of loan agreement
Ex.D.3 Loan repayment schedule
Ex.D.4 Section 65-B certificate
Ex.D.5 Bank account statement of accused
and his wifeXIV Addl.C.J.M., Bengaluru.
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