Hdfc Bank vs Sukan

Hdfc Bank Ltd Vs Sukan

Case Details

Case Type	CR CRIMINAL REVISION
Filing Number	1147/2020
Registration Number	120/2020
Filing Date	04-03-2020
Registration Date	05-03-2020

First Hearing Date	05th March 2020
Decision Date	11th March 2020
Case Status	Case Disposed
Court Number and Judge	464-District And Sessions Judge;
Nature of Disposal	Contested--Dismissed;

Petitioners & Respondents

Petitioner

Hdfc Bank Ltd, ;

Petitioner Advocate

Anish Bhala;

Respondent Name

Sukan;

Order Details

Order Date

05-03-2020

CR No.75/2020 HDFC Bank Ltd. Vs. Sukan 05.03.2020 Fresh revision petition u/sec.397 (1) r/w/sec.399 Cr.P.C. is received by way of assignment. It be checked & registered. Present: Sh.Anish Bhola, counsel for the petitioner Sh.Bhola submits that the judgement relied upon by the Ld. MM in HDFC Bank Ltd. Vs. Amit Kumar is no more a good law, in view of the law laid down in Kishore Sharma Vs. Sachin Dubey bearing Crl. Appeal No. 1326/2019 decided by Hon'ble Supreme Court of India on 03.09.2019. Since the respondent has not been served before the Ld. Trial Court, notice to him in the present petition can be dispensed with. Arguments heard. Now, to come up for Orders on 11.03.2020. (NAROTTAM KAUSHAL) District & Sessions Judge (SouthWest) Dwarka Courts, New Delhi 05.03.2020 (PG)

Final Order Judgement

Order Date

11-03-2020

IN THE COURT OF SH. NAROTTAM KAUSHAL, DISTRICT & SESSIONS JUDGE : SOUTH WEST DISTRICT DWARKA COURTS : NEW DELHI. CR No.75/20 HDFC Bank Ltd. Through its Authorised Representative Mr. Sachin Kumar Verma Having its Registered Office at: HDFC Bank House, Senapati Bapat Marg, Lower Parel (West), Mumbai – 400013 Having inter-alia its branch office at: 1st Floor, Tower A, Plot No. 31, Near Jaguar Land Rover and BMW Showroom) Najafgarh Industrial Area, Shivaji Marg, Moti Nagar, New Delhi – 110015 …..Revisionist Versus Sukan H.No. 224/2 (V) Chhaprola-Teh Palwal (D) Faridabad Palwal 121102 Haryana …..Respondent Date of Institution : 05.03.2020 Date of Arguments : 05.03.2020 Date of Order : 11.03.2020 Argued by : Sh. Anish Bhola, counsel for petitioner ORDER: 1. Present is a revision petition against the order dated 31.01.2020 passed by Judge Evening Court, Dwarka. Vide the impugned order, the ld. Trial court has declined to take cognizance of the complaint as the petitioner/complainant had failed to satisfy the Court as regards delivery of 'legal demand notice' upon the respondent. 2. The ld. Trial court has relied upon law laid down in HDFC Bank Ltd. V/s Amit Kumar Singh reported as (2009) 160 DLT 478. The law in the cited judgment was suffered by the present petitioner itself in other similar cases, where service of legal demand notice had not been effected on account of addressee's address being not available with the complainant. The law enunciated by the Hon'ble High Court in the cited judgment holds ground as on date, as the present petitioner who was also petitioner in the cited case has either chosen not to challenge it or has not been successful in challenge to the same. Having, thus, got the law settled which denounced the practice of filing complaints with incorrect or incomplete address of the respondents; petitioner is still indulging in the same practice contrary to the law as settled. This court finds that the conduct of the petitioner needs to be condemned for attempting to flood the Trial Courts with half baked litigations. 3. Shorn of all the unnecessary details, the facts necessary for disposal of revision petition are that petitioner bank filed a complaint under section 25 of the Payment & Settlement Systems Act 2007 (hereinafter called as PASSA). Before institution of the complaint, petitioner is pleaded to have issued a notice of demand, which could not be served upon the respondent on the ground of insufficient/wrong address. Observing that the notice of demand had been dispatched at incomplete/wrong address the Ld. Trial Court took the view that court issued notice would also meet the same fate and complaint will remain pending in the judicial system without serving any purpose. Nonetheless, the Trial Court gave an opportunity to the petitioner to file an affidavit that Authorized Representative of the petitioner 'had personally visited the address of the respondent and found the respondent to be residing at the address mentioned'. Having failed to furnish any such affidavit, the ld. Trial Court declined to take cognizance. 4. Sh. Anish Bhola, ld. Counsel for petitioner Bank has challenged the impugned order on the ground that the fact of service, is a triable issue and the court cannot decline to take cognizance merely because the written notice of demand was not served. Sh. Bhola has relied upon the law laid down in 'Kishore Sharma v/s Sachin Dubey' Crl. Appeal No. 1326 of 2019 decided on 03.09.2019 by the Hon'ble Supreme Court of India to urge that failure of service of demand notice is a triable issue. Sh. Bhola also referred to law laid down in M/s Ajeet Seeds Ltd. vs K. Gopal krishnaiah reported as (2014) 12 SCC 685, D Vinod Shivappa vs Nanda Beliappa, reported as (2006) 6 SCC 456 and CC Alavi Haji's vs Palapetty Muhammed reported as (2007) 6 SCC. 5. I have heard Sh. Bhola and perused the impugned order. I have also studied the judgments relied upon by Sh. Bhola. It may be noticed that the present is a complaint u/s 25 PASSA Act. The law relied upon and the judgments discussed pertain to Section 138 NI Act. It may further be noticed that the provisions of Sectioin 25 PASSA Act and Section 138 NI Act are pari metria. Language of Section 25 (c) & (d) PASSA contain the same legal requirements to constitute an offence as section 138 (b) & (c) NI Act. Since, there is no dispute to the provisions being pari metria, the law shall be discussed, as has been laid down by Hon'ble higher Courts for provisions under Section 138 NI Act. 6. To constitute an offence punishable u/s 138 NI Act the first ingredient is for the cheque to have been presented within the period of validity and the same being returned un-encashed for insufficiency of funds. The second and third ingredients, necessary for disposal of the present revision petition, are: a) That the holder of the cheque or the payee makes a demand for payment of the amount due by giving a notice in writing, within thirty days of information by the bank. b) Failure of the drawer of such cheque, to make payment of amount demanded in legal notice, within 15 days of the receipt of notice. For ready reference section 138 Proviso (b) & (c) is reproduced herein. 138. Dishonour of cheque for insufficiency, etc., of funds in the account:- (a) xxx (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. The controversy in the present dispute revolves around clause (b) & (c) of section 138 NI Act i.e. making a demand of payment by way of a notice in writing by holder of cheque and failure to make the payment within 15 days of the demand notice having been 'received' by the drawer of cheque. 7. Interpreting section 138 (b) & (c) of NI Act and the requirement of notice in writing to have been issued/served, the Hon'ble High Court of Delhi in 'HDFC Bank Limited vs Amit Kumar Singh (supra) (hereinafter called as Amit Kumar Singh's Case) held as under:- 4. The question arose in the clauses of the precise wording of Section 138 (c) NI Act where one of the conditions for the offence to be attracted is that the drawer the cheque should fail to make the payment to the payee “within fifteen days of the receipt of the said notice”. Therefore, the receipt of the notice by the payee is an essential condition which must be fulfilled followed by the failure of the drawee to make payment within 15 days thereafter. Although Section 138 (b) NI Act states that “the payee has to only give a notice in writing to the drawer”. Can it be said that by merely giving such notice, the subsequent stage of receipt of such notice by the drawer is automatically to be presumed? 17. In a situation where there is no proof of delivery submitted before the Court to show that the legal notice has in fact been received by the accused if a presumption is to be drawn and after taking cognizance summons are issued to the accused at the same address, it would either not be received back at all or received back with the remarks that the accused is not available at the address. Thereafter no further progress can be made in the criminal complaint. This is an outcome that ought to be avoided. 30. To recapitulate, a complainant in a case under Section 138 NI Act has at the pre-summoning stage to satisfy the learned MM that the legal notice in terms of the section 138 (b) NI Act was in fact “served” on the drawer of the dishonored cheque. If some proof of delivery, or an internet generated or postal delivery report or a signed acknowledgment due card of the drawer, or the unserved cover with the postal endorsement is produced before the learned MM, it will be in the discretion of the learned MM to form an opinion if a presumption of service should be drawn. If the complainant chooses to file an affidavit, the deponent should state that he either went personally and found that the accused was residing at the address or is able to produce some postal certificate or an endorsement by a courier service agency that the accused is in fact residing at the address and yet refusing to accept the notice. If the affidavit merely states that the accused is residing at the address without giving any further documentary proof in support thereof such an affidavit cannot be accepted as satisfying the requirement of Section 138 (b) read with section 138 (c) of the NI Act. (emphasis supplied) The view expounded by the Hon'ble High Court was that for constituting an offence punishable u/s 138 NI Act, notice as envisaged u/s 138 (b) NI Act ought to be served, not merely issued. In a situation where there was no proof of service of legal notice, the Magistrate ought to insist on proof of service of legal notice. The Court must at the stage of pre- summoning, insist on the complainant to show some proof of delivery of notice in the form of registered cover with the endorsement, or an internet generated delivery report or a delivery service stating that drawer had refused or has left or is not available. In case of non-availability of proof of delivery of notice, or notice being returned with the endorsement of insufficient/incorrect address, complainant ought to file an affidavit that he went personally and found the accused residing at the address. 8. To counter the law laid down in Amit Kumar Singh's case (supra), Sh. Bhola has relied upon 'Kishore Sharma's' case (supra). The relevant portion of para 4 is reproduced hereinbelow:- 4. …........ notice was duly served on the respondent or otherwise, is a triable issue; and cannot be proceeded as an indisputable position-as is expounded by this Court in 'Ajeet Seeds Limited vs K.Gopala Krishnaiah' reported in (2014) 12 SCC 685. The Hon'ble Supreme Court in para 4 has referred to law laid down in 'Ajeet Seeds' case (supra). For ready reference the law laid down in 'Ajeet Seeds' case (supra) is reproduced hereinbelow:- 11. xxxxx it must be held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The high Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence”. 9. In D. Vinod Shivappa's case the Hon'ble Supreme Court took the view that drawer may by dubious means manage to get an incorrect endorsement made on the envelope that premises was found locked or that the addressee was not available. The Hon'ble Supreme Court further held that it will be open for the complainant to prove at the trial by evidence that endorsement is incorrect and the addressee i.e. the accused had deliberately avoided to receive notice. Therefore, quashing of complaint at the stage of issuance of process was held to be improper. In CC Alavi Haji's Case the following question was referred to a three judge bench of the Hon'ble Supreme Court :- Whether in absence of any averments in the complaint to the effect that the accused had a role to play in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decision of this court in Vinod Shivappas case? Answering the reference in the negative, the Hon'ble three Judge Bench held that for a presumption under Section 27 of General Clauses Act to be drawn, complaint need not make necessary averments to raise the presumption of service of notice. The afore noticed judgment in D. Vinod Shivappa's Case and CC Alavi Haji's Case was further approved by the Hon'ble Supreme Court in Ajeet Seed's Case. A study of judgment in Ajeet Seeds Limited vs K.Gopala Krishnaiah' reported as (2014) 12 SCC 685 reveals that complaint was quashed by the Hon'ble High Court of Bombay on the ground that complaint did not plead an assertion that notice had been served upon the accused. The accused in the cited case had sought to quash the complaint on the ground that the legal notice of demand had not been served upon the accused and there was no such assertion in the complaint that demand notice had been served. Referring to law laid down in CC Alavi Haji's case, Hon'ble Supreme Court reversed the judgment of Hon'ble High Court of Bombay. It was held:- 11. xxxxx it must be held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The high Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence”. 10. Sh. Bhola, therefore, discussing the law laid down in CC Alavi Case, the Hon'ble Supreme Court in Ajeet Seed's case has argued that proof of service or the notice being returned unserved/unclaimed is a matter of evidence and this question to be considered at the stage of issuance of process would be pre-mature. Sh. Bhola on the strength of law laid down in Ajeet Seed's case has argued that the impugned order declining to take cognizance is improper. The question of service of demand notice or return thereof as 'not claimed' is a matter of trial. 11. A study of the judgments of D.Vinod Shivappa, and CC Alavi Haji Cases (supra) reveals that both the cited cases, relied upon by Sh. Bhola are on a different wavelength, than the present case. In D. Vinod Shivappa's Case, the service report on demand notice was 'party not in station, arrival not known'. In CC Alavi Haji's case the endorsement by the postal department was 'accused was out of station'. In the face of such reports, where there was no dispute about the correctness of address, it is possible that an unscrupulous litigant would have managed such a report. Both of these judgments have been discussed & distinguished by Hon'ble Delhi High Court in Amit Kumar Singh's Case (supra). The case in hand before the Ld. Trial Court was on an absolutely different footing. In the present case, the notice had come back with the endorsement that the address was 'insufficient'. Presumption to be drawn under Section 114 Indian Evidence Act or Section 27 of G.C.Act envisages a proper service which would require the address to be correct and complete. In the present fact position where the address on the legal notice was incomplete or incorrect, no presumption of service can be drawn. The Hon'ble High court in Amit Kumar Singh's Case (supra) has also discussed the law laid down in CC Alavi Haji's Case and D.Vinod Shivappa's case. Discussing both the judgments, the Hon'ble High Court had formed an opinion that both the judgments worked on different platforms. In those cases, the endorsement by the postal department was that the party was not in station, which endorsement could have been manipulated by a unscrupulous litigant but an endorsement that the address is insufficient or incomplete was not the subject matter of law laid down in D.Vinod Shivappa's Case or in CC Alavi Haji's Case. 12. The law laid down in Ajeet Seed's Case (supra) is in perpetuation of the preposition of law enunciated in D.Vinod Shivappa's case & CC Alavi Haji's case; which has further been affirmed in the case of Kishore Sharma. None of these cases have discussed or envisaged the situation as in the present case, where the address was incomplete or incorrect. For the law laid down in above discussed judgments to be applied, first & foremost requirement is of the address of noticee to be correct & complete. Accordingly, in Amit Kumar Singh's Case, Hon'ble Delhi High Court required the complainant to make an averment in the affidavit that 'accused is infact residing at the address & yet refusing to accept the notice'. This court is of the opinion that the law laid down in Amit Kumar Singh's case still holds the water and has not been overruled by the Hon'ble Supreme Court in Ajeet Seed's case (supra) or Kishore Sharma's Case (supra). In the present case also, the Ld. MM has afforded an opportunity to the petitioner/complainant to make an averment that address was found correct on personal visit by the complainant or its authorized representative. The petitioner has chosen not to avail the remedy and has instead challenged the order. 13. Another very important factor which the Hon'ble Delhi High Court noticed in Amit Kumar Singh's case was clogging of Magisterial Courts by these kind of complaints where the address of the respondent/accused was not available with the complainant and the cases remained pending in the judicial system for years together at the stage of service itself. Reference be made para 26 of the said judgment, which is reproduced herein below:- 26. What is happening is that without the complainant being put to any trouble in finding out the correct address of the complainant, the burden is shifted to the court. Our Magistrates are stuck with several such complaints which they are unable to dismiss and are yet unable to proceed with because the accused has not been served. This was perhaps not the intention of the legislature when it introduced penal provisions into the NI Act. While on the one hand a penal statute should be strictly construed, at the same time the construction to be placed on the statue, and in particular Section 138 (b) and (c) should be that which advances the cause of justice keeping in view the object of the provision. The construction that commends itself to be adopted is that the Court must at the pre-summoning stage insist on the complainant showing to it some proof of delivery of notice in the form of the returned cover with the endorsement, or an internet generated delivery report or a delivery certificate stating inter alia that the drawer refused or has left or is not available. Anything short of this it would be unsafe for the court to accept and proceed on a presumption of deemed service in terms of Service 27 GC Act. 14. Sh. Bhola has further argued that ld. Trial Court should have afforded an opportunity to complainant to serve the accused at other addresses mentioned in the complaint. This court does not find any error in the impugned order, on this count as well; because it is not the case of complainant that notice of demand had been issued or served at other addresses also. 15. For the reasons noticed above, this court is of the opinion that there is no infirmity in the order passed by the Ld. MM, Dwarka Court. The same is upheld and the revision petition is dismissed. Copy of this order be sent to Trial Court. Present criminal revision petition be consigned to record room. Announced in open court (Narottam Kaushal) on 11.03.2020 District & Sessions Judge: SW District/Dwarka Courts New Delhi (AG) 2020-03-12T12:19:57+0530 NAROTTAM KAUSHAL

Order Date

11-03-2020

CR No. 75/20 HDFC Bank Ltd. V/s Sukan 11.03.2020 Present: Sh. Anish Bhola, ld. Counsel for petitioner. Vide separate order announced in the open court today, the order passed by Ld. MM, Dwarka Court is upheld and present criminal revision petition is dismissed. Copy of this order be sent to Trial Court. Present criminal revision petition be consigned to record room. (Narottam Kaushal) District & Sessions Judge: South West District Dwarka Courts/Delhi/11.03.2020 (AG)

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Frequently Asked Questions

The Petitioner in case Hdfc Bank Ltd vs Sukan is Hdfc Bank Ltd.

The Respondent in case Hdfc Bank Ltd vs Sukan is Sukan.

The case against Sukanwas filed on 04-03-2020 by Hdfc Bank Ltd.

The status of case Hdfc Bank Ltd against Sukan is Case Disposed.