HDFC Bank Ltd. v. State of Kerala, rep. by Public Prosecutor, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933** **Crl.Rev.Pet.No. 1849 of 2011()** **--------------------------------------------** **CMP.NO. 333/2011 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE** **....................** ## **REVN. PETITIONER(S)/ COMPLAINANT** **--------------------------------------------------------** **HDFC BANK LTD, SIMAZ TOWER, VANDIPETTA, CALICUT, REP.BY ITS ASSISTANT MANAGER SOJIN KUMAR.U.** **BY ADV. SRI.T.RAJESH** **RESPONDENT(S):** **--------------------------** **STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/08/2011,ALONG WITH CRRP NO.1850 OF 2011 AND CONNECTED CASES, THE COURT ON 22/08/2011 PASSED THE FOLLOWING:** **sts** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.R.P.NOS.1849, 1850, 1910 1911 & 1912 OF 2011 ----------------------------------Dated this the 22[nd] day of August, 2011** ## **O R D E R** The above revisions are filed by a common petitioner, a Bank, challenging the legality, propriety and correctness of the dismissal of its complaints, five in number, against the drawer of the cheque in the respective complaints imputing offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act'. The aforesaid complaints, all of them, were dismissed at the threshold by the learned Judicial First Class Magistrate Court - IV, Kozhikode, under Section 203 of the Code of Criminal Procedure. Petitioner in all the revisions is hereinafter referred to as the 'complainant Bank'. 2. Though the allegations imputed in the complaints against the respective accused over the cheque/cheques covered, differ in some particulars, as all complaints had been dismissed **Crl.R.P.NOS.1849, 1850, 1910, 1911 & 1912/2011** **2** more or less on similar grounds and the challenge raised against such dismissal is common in all cases, these revisions after being heard together are disposed under this common order. 3. No notice was ordered to the respondents in the revisions as the dismissal of the complaints was without issuing summons and hearing them. 4. Crl.R.P.No.1849 of 2011 is against the dismissal of the complaint numbered as C.M.P.No.333 of 2011. Cheque issued by the accused named in that complaint for a sum of Rs.19,050/dated 25.11.2010, allegedly, in discharge of the liability to pay the amount in a loan transaction by the drawer/accused was dishonoured and the amount was not paid after issuing of the statutory notice, was the case of the complainant. That complaint was dismissed by the learned Magistrate since the name of the accused was seen written as the payee, with a seal as “HDFC Bank Ltd. with car loan A/c” affixed after the name of the payee. Stamping of the seal by the complainant bank could have been done only after the issuing of the cheque, there is ## **Crl.R.P.NOS.1849, 1850, 3 1910, 1911 & 1912/2011** uncertainty over the name of the payee in view of the endorsement made as aforesaid, there is no valid negotiable instrument, and as such, the offence under Section 138 of the N.I.Act is not attracted in the case, was the view taken by the learned Magistrate to dismiss the complaint. 5. Crl.R.P.No.1850 of 2011 arises from C.M.P.No.2445 of 2011. In the complaint, the name of the accused is shown to be the payee with the seal of the complainant bank affixed after his name without specifying even the account number and that render the payee under the instrument uncertain/unidentifiable, and that cheque cannot be considered as a valid negotiable instrument, and, therefore, no offence under Section 138 of the N.I.Act would lie, was the view taken for dismissing such complaint. 6. Crl.R.P.No.1910 of 2011 arises from C.M.P.No.1192 of 2011. Two cheques for Rs.16,500/- each allegedly issued towards the repayment of the loan amount availed by the accused from the bank, on its dishonour, were involved in the **Crl.R.P.NOS.1849, 1850, 4 1910, 1911 & 1912/2011** complaint. Such cheques were filled with a blue coloured ball point pen, with a seal as “HDFC Bank Ltd. loan A/c” stamped after the word 'pay' in the instrument with no other payee's name shown, the complainant could not give any explanation for not writing the payee's name in the cheque, and the stamping of the seal could not have been made by the accused, but, only by the bank are the circumstances taken by the learned Magistrate to hold that the payee under the instrument is uncertain and no offence under Section 138 of the N.I.Act has been made out, to dismiss the complaint. 7. Crl.R.P.No.1911 of 2011 arises from C.M.P.No.1130 of 2011. A cheque issued for Rs.2,007/- by the accused named in the complaint towards repayment of the loan amount availed by him from the bank was dishonoured and statutory notice was not responded with payment, was the case of the complainant bank. That complaint was also dismissed as the cheque involved in the case suffered from the infirmities as noted in C.M.P.No.1192 of 2011 covered by Crl.R.P.No.1910 of 2011, adverted to supra, a repetition of which is not warranted, to dismiss the complaint. **Crl.R.P.NOS.1849, 1850, 1910, 1911 & 1912/2011** **5** 8. Crl.R.P.No.1912 of 2011 arises from C.M.P.No.1128 of 2011. Two cheques for Rs.1,769/- each issued by the accused named in the complaint towards repayment of the loan availed by him from the bank were dishonoured and the amounts were not paid after issuing of the statutory notice was the case of the complainant. In the aforesaid two cheques, the payee has been shown as the accused with a seal as “HDFC Bank Ltd. A/c consumer loan” on the top of the instrument and that would render the payee named uncertain was the view taken by the learned Magistrate to dismiss the complaint. 9. The learned counsel appearing for the complainant bank assailed the dismissal of the complaints for the reasons adverted to as above by the learned Magistrate urging that the bank had been denied even an opportunity to show that it is a holder of the instrument in the respective cases and such instruments had been issued by the respective drawer towards discharge of the debt or liability arising out of loan transactions with the bank. The bank is entitled to be in possession of the instrument and as **Crl.R.P.NOS.1849, 1850, 6 1910, 1911 & 1912/2011** such, it is a holder and in favour of such holder, a presumption is available under Section 118 (g) of the N.I.Act to conclude that he is a holder in due course is the further submission of the counsel. Reliance is placed by the counsel in **Punjab Sindh Bank v. Vinkar Sahakari Bank Ltd. (2001 (3) KLT 533 (SC))** in support of the submissions made as aforesaid. The counsel had also relied on two decisions of the Allahabad High Court in **Anil Kumar Jaiswal v. State and Another (2007 KHC 6049)** and **Sardar Jasvir Singh and Another v. State of U.P. and Another (2007 KHC 6429)** to contend that the question whether the complainant is a holder in due course can be examined only after evidence has been recorded, and the proceedings cannot be quashed at the initial stage, and that the holder in due course includes a person who comes in possession of an instrument where such cheque was payable to bearer, which, according to the counsel, is the case in all the instruments produced with the complaint. Even if an instrument was drawn in favour of self, the holder of such instrument, if he is entitled to receive the sum on dishonour of the instrument has to be treated as the 'holder in due course', is the submission of **Crl.R.P.NOS.1849, 1850, 1910, 1911 & 1912/2011** **7** the counsel relying on **Intech Net Limited v. State (2007 KHC 6023)** . 10. The learned counsel has also placed before me copies of the complaint, affidavit of the complainant, and also photocopies of the cheques, produced in one of the complaint, C.M.P.No.1128 of 2011, covered by Crl.R.P.No.1912 of 2011, for perusal. A detailed discussion over the question of law posed for consideration with reference to the decisions cited by the counsel, is not called for at this stage where the complaints have been dismissed at the threshold by the learned Magistrate expressing views as stated aforesaid. In almost all the complaints in the cheques produced, the column of payee was affixed with the seal of the bank relating to the loan account, in some of them added with the name of the borrower - the accused in the complaints. Such bank seal could have been affixed only subsequent to the issue of the cheque is the view taken by the learned Magistrate. To draw such conclusion there was no materiel whatsoever. The question whether the bank is a holder of the instrument, and as such, could it be treated as a holder in **Crl.R.P.NOS.1849, 1850, 8 1910, 1911 & 1912/2011** due course, to file a complaint against the accused named in its complaint was a matter which required to be considered after taking cognizance of the complaint and evidence recorded in the case. The complaints are seen dismissed under Section 203 of the Cr.P.C., it appears, without even taking cognizance of the complaints. Only where a compliant is taken cognizance and after enquiry, a complaint can be dismissed under Section 203 of the Cr.P.C. If cognizance cannot be taken on the complaint whatever be the reasons thereof, then, it is a case of rejection of the complaint. What is seen from the orders impugned is that from the power of attorney holder of the bank, who was present, explanation was called for with regard to the uncertainty in the name of the payee in the instrument and, thereupon, holding that no valid explanation has been offered, complaint had been dismissed under Section 203 of the Cr.P.C. expressing some views also over the validity of the instrument produced. Evidently, the representative of the complainant was not examined in any of the cases. There was no examination of the complainant or his authorized representative is evident from the submissions made in the impugned orders and it was a case **Crl.R.P.NOS.1849, 1850, 9 1910, 1911 & 1912/2011** where cognizance was not taken on the complaints at all. Even assuming that cognizance was taken on the basis of the affidavit tendered with the complaint, which would suffice the requirement of examining the complainant as under Section 200 of the Cr.P.C., in view of the provision covered by Section 145 of the N.I.Act, still, an enquiry affording an opportunity to the complainant bank to clear the doubts, if any, over the uncertainty of payee and validity of cheque could not have been dispensed with. Since the payee's name in the instrument is shown as that of the bank, whether it be affixed under a seal or otherwise, added with the name of the borrower in some cases, it would render the payee uncertain, was the view expressed by the learned Magistrate, to refuse to take cognizance of the complaint. But such dismissal without giving an opportunity to the complainant after cognizance being taken on the complaint, to show the entertainability of the complaints cannot at all be justified. I am not expressing any opinion over the question whether the bank in the present case could be considered as a 'holder' of the instrument and even if that be so, whether it could be treated as a 'holder in due course' and, thus, competent to file ## **Crl.R.P.NOS.1849, 1850, 10 1910, 1911 & 1912/2011** a complaint against the drawer of the instrument in the respective complaints. At any rate, this was a case where dismissal of the complaints at the threshold expressing certain views over the uncertainty of payee and validity of the cheque by the learned Magistrate without taking cognizance, and thus, denying an opportunity to the complainant to present his case, was not correct. Needless to point out that if there is room for doubt over the uncertainty of the payee and it persists only as a doubt but not with certainty, the complainant is entitled to canvass for taking cognizance of his complaint and be given a chance to tender materials and place authorities in support of his case and to have a decision on the merits including the legal question, if any, involved. 11. I make it clear that none of the observations made in the order in these revisions, which have been rendered without notice to the accused in the complaint cases, is to be treated as lending support to the case of the complainant bank that it is a 'holder' or a 'holder in due course' of the cheque/cheques produced in the respective complaints. That question **Crl.R.P.NOS.1849, 1850, 11 1910, 1911 & 1912/2011** necessarily has to be resolved with reference to the legal principles applicable, but, after affording an opportunity to the complainant, and not merely on the basis of entertaining some doubts over the uncertainty of the payee or validity of cheque/cheques produced in the complaints. The orders dismissing the complaints covered by all the revisions are set aside, and the learned Magistrate is directed to take back the complaints on file and to pass appropriate orders thereof in accordance with law. The complainant bank is directed to mark its appearance before the learned Magistrate on 05.09.2011. With the above directions, the revisions are disposed of. ## **S.S.SATHEESACHANDRAN JUDGE** prp **Crl.R.P.NOS.1849, 1850, 12 1910, 1911 & 1912/2011**