HSBC LIMITED Vs. K SHIVA KUMAR

JUDGEMENT

(1.) AN interesting point is raised by the learned counsel for the appellant, which can as well be a precedent for the Courts below in deciding this type of cases falling under Section 138 of the Negotiable Instruments Act.

(2.) BEFORE going into the point raised by the learned counselforthe appellant, it is germane to refer to a few facts of the case. The complainant/appellant Bank is a scheduled bank registered with Reserve Bank of India and is governed by Banking Regulations Act. The appellant Bank, apart from usual activities, offers production/services to its customers by way of car loans, housing loans, credit cards, etc. During the course of the said business transactions, the first respondent approached the appellant-Bank and submitted an application to avail credit card facility and on consideration of necessary documents furnished by the first respondent, the appellant bank allotted credit card bearing account no. 5548 5135 0250 3329 to the first respondent and he was using the said card for his requirements and was making payments to the appellant Bank as and when the amount is due as per the statement of account furnished by the Bank. Towards partial discharge of his liability against the above credit card, the first respondent issued a cheque bearing no. 082414 dated 29. 06. 2002 for a sum of rs. 10,000/- drawn on ICICI Bank, S. D. Road branch in favour of the appellant Bank. On presentation, the said cheque was dishonoured for the reason "insufficient account balance", vide cheque return memo dated 01. 07. 2002 and the appellant Bank got issued a legal notice dated 13. 07. 2002 demanding the first respondent to pay the amount covered by dishonoured cheque within fifteen days from the date of receipt of notice, as provided for under Section 138 of the Negotiable instruments Act. Though the first respondent received the notice on 15. 07. 2002, he did not pay the said amount. Hence, the appellant bank filed a complaint under Section 138 of the Negotiable Instruments Act on 27. 06. 2003.

(3.) IN support of its case, the appellant Bank got examined its legal off icer as P. W. 1 and got marked Ex. P1, cheque bearing No. 082414 dated 29. 06. 2002, Ex. P2-cheque return memo dated 01. 07. 2002, Ex. P3-office copy of legal notice dated 13. 07. 2002, Ex. P4-postal receipt dated 13. 07. 2002, Ex. P5-postal acknowledgement dated 15. 07. 2002, Ex. P6-certified copy of substitute power of attorney dated 05. 12. 2006, Ex. P7-statement of account for the period from 30. 06. 2002 to 13. 10. 2003 and P8-certified copy of General Power of attorney dated 26. 07. 2004. No oral and documentary evidence was adduced on behalf of the first respondent.