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TMI Blog2024 (8) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... has been transferred from his NRE Account to the defendant s Hyderabad Branch - as alleged officials of defendant no. 2 had obtained a blank cheque from the plaintiff no. 2 and in a clandestine manner, filled entries in the cheque and added detailed instructions on the back of the cheque without any such directions by the plaintiffs Whether the suit is within time? - Admittedly, the suit is based on the fact that on 23.04.1990 money was illegally transferred from plaintiffs account by the defendant bank. The suit was filed on 22.04.1993, i.e. within three years from the date of cause of action. Therefore, the suit as filed was within the limitation period of three years. The Court fees of Rs. 2,70,000/- was filed along with the suit and since the court fee of Rs. 3,672 was not available on the said date, it was purchased and deposited on 07.05.1993. All objections were duly removed and the matter was re-filed on 17.05.1993. It is settled proposition that the deficiency in court fee is not fatal and the payment of deficit court fee is a curable defect. Under section 149 of CPC, the courts have been granted the discretion to permit receiving the deficit court fee at any stage, even i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring of cheques and bank operations) the bank is required to take action, including but not limited to conducting an inquiry and registering of an FIR. The defendant bank cannot be accepted to say that a Specimen Signature Card of an individual is lost and the defendant bank did nothing about it. The party which comes to the court and seeks the courts adjudication on issues in its favour has to discharge the onus of proof. The plaintiffs have failed to prove that the instructions written on the reverse side of the cheque were not given by the plaintiff no. 2 but written by the defendant bank. The plaintiffs have failed to prove that the act of encashing the cheque in question, i.e. Ex. PW1/D31, is improper especially since the defendant bank has sufficiently proved that the plaintiff no. 2 would continually sign cheques both signed as R. Murti and R. Shandilya in the NRE Account no. 6523. Thus the plaintiffs have not been able to discharge the onus of proof. Whether, the transfer of Rs. 2 crores is hit by the provisions of Foreign Exchange Regulation Act? If so, to what extent? - FERA is a special legislation, containing exhaustive provisions of investigation, inquiry, trial and ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 28th March 1990 in the said NRE Account. The account was originally opened by plaintiff no. 2 as a Non-Resident Indian, however since she subsequently changed her residential status, she is said to have ceased to be a joint signatory in the said NRE Account. 5. It is stated that in the absence of plaintiff No. 1 from Delhi, plaintiff no. 2 on 23.04.1990 received a note from the then Branch Manager of defendant no. 2 requesting a blank cheque (only bearing signature of plaintiff no. 2) on urgent basis. 6. On the return of the plaintiff no. 1, the plaintiff no. 1 learnt that a sum of Rs. 2,00,00,000/- has been transferred from his NRE Account to the defendant s Hyderabad Branch. 7. After repeated inquiries, the plaintiffs learnt that the money has been transferred by the defendant bank claiming to have adjusted the same against certain liabilities of M/s. Asian Wire Ropes Ltd. of which plaintiffs were neither shareholders, directors nor guarantors on the said date. Hence, the plaintiffs were neither liable nor responsible for debts and liabilities of M/s. Asian Wire Ropes Ltd. 8. It is alleged by the plaintiffs that the officials of defendant no. 2 had obtained a blank cheque from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the then Branch Manager of defendant no. 2 requested blank cheques from the plaintiff no. 2, rather it is alleged that that the plaintiff no. 2 issued a cheque bearing no. 432283 dated 23.04.1990 for an amount of Rs. 2 crore on yourself with instructions on the back on the cheque to the defendant bank to please issue a telegraphic transfer on your Hyderabad Branch (Bank St.) favoring Asian Wire Ropes Ltd. Simultaneously, a telex message was received from the plaintiff no. 1 dated 23.04.1990 stating that formalities for taking over M/s. Asian Wire Ropes Ltd. have been finalized and a request for transfer of Rs. 2 crore to the Asian Wire Ropes Ltd Account at the Vijaya Bank Bank St., Hyderabad was made. It is stated that the plaintiffs also sent a letter dated 23.04.1990 to the Bangalore office authorizing the payment. A copy of Memorandum of Understanding dated 20.04.1990 between the plaintiffs and the management of the companies namely M/s Asian Wire Ropes Ltd and M/s Asian Ispat Pvt Ltd. was also shared with defendant bank in this regard. 16. The defendant bank state that the plaintiff No. 2 was joint signatory to the account and the cheque was issued by plaintiff no. 2 who w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss box for being cross-examined. 20. The defendant bank examined the following witnesses: i. DW1: Sh. Rajeev Shetty, (then Branch Manager of the defendant bank) tendered his evidence by way of affidavit and relied upon the following documents: a. Exhibit PW1/D5: The Original letter dated 14.10.1989 by M/s. Gambro Nexim (India) Medical Ltd. b. Exhibit PW1/D4: The Original abstract of the Resolution dated 14.10.1989 passed by the Board of M/s. Gambro Nexim (India) Medical Ltd. handed over to the Defendant Bank by the Plaintiff No. 1. c. Exhibit PW1/D6: The Original Specimen Signature Card in current account no. 1571 belonging to company M/s. Gambro Nexim (India) Medical Ltd. signed by the Plaintiff No. 1. d. Exhibit PW1/D8: The Original declaration form dated 16.10.1989 signed by the Plaintiff No. 1 and Plaintiff No. 2 for opening of current account in the name of M/s. Gambro Nexim (India) Medical Ltd. e. Exhibit PW1/D9: The Original Account Opening Form of current account in the name of M/s. Gambro Nexim (India) Medical Ltd. bearing the signatures of the Plaintiff No. 1 and Plaintiff No. 2. f. Exhibit PW1/D49, Exhibit PW1/D50, Exhibit PW1/D51, Exhibit PW1/D52, Exhibit PW1/D53, Exhib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedhar Rai, Chief Manager, Hyderabad Branch tendered his evidence by way of affidavit. However, vide order dated 27.04.2013, the defendant bank submitted before the learned Joint Registrar that the defendant bank do not wish to examine DW3 and dropped him as a witness. iv. DW-4: Mr. M. Janakiram, Chairman and Managing Director of M/s. Asian Wires Ropes Ltd. tendered his evidence by way of an affidavit. However vide order dated 27.04.2013, the defendant bank submitted before the learned Joint Registrar that the defendant bank do not wish to examine DW4 and dropped him as a witness. 21. Final arguments have been advanced at length on behalf of the parties and they have also filed their written submissions. I have heard the arguments and perused the material on record. 22. My issue-wise findings are as under:- Issue No. I: Whether the suit is within time? 23. The cause of action paragraph in the plaint reads as under: 17. That the cause of action for filing the present suit arose on 28th March, 1990 when the plaintiffs opened above NRE Account by depositing Rs. 4,00,00,000/- and again on 23rd April, 1990 when the above said sum of Rs. 2,00,00,000/- was unauthorizedly, illegally and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion thereof was given to the bank? If so, on which date? 30. The plaintiff submits that it is at the insistence of defendant bank that the plaintiff No. 2 had to change her NRI status to that of a resident Indian on 17.04.1990 by filing an affidavit to that effect and delivering a certified true copy of the same to the defendant bank on the same date because the plaintiff No. 2 was informed by the defendant bank that as per FERA, 1973, no NRI could make investments without prior written permission of RBI vide Form A4. Therefore, the defendant bank could not have allowed the operation of the said NRE 6523 account by transfer without prior RBI permission. 31. PW1 in this regard deposed the following in his cross-examination-: Dated 16.08.2005 Que. 9: Is the expression ordinary residence identically considered and treated under the FERA and the Income tax Act? Ans .: I think the question is irrelevant and there are only three definitions described is only two Act which can be stated as 'resident,' Non-resident and resident but not ordinarily resident . The correct definition may kindly be sought in the relevant Acts. Vol. As far as I am concerned I am an NRI for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n residential status of plaintiff no. 2 was ever brought to the knowledge of the defendant bank. No request for withdrawal/removal as signatory was ever made by either of the plaintiffs, which is the obligation of the plaintiffs towards the defendant bank. Rather, the plaintiff no. 2 has continued to issue cheques from the NRE Account no. 6523 clearly showing that there was no change. In this regard, DW1 in his evidence by way of affidavit has deposed as under:- 14. I deny that subsequent to opening of the NRE Account No.6523, the Plaintiff No. 2 ever informed me of her change in status from Non-Resident Indian to Resident Indian. I deny this allegation of the Plaintiffs particularly because neither had the Plaintiff(s) given any such information to the Defendant Bank nor have they placed on record any document in support of this contention. I say that the allegations made by the Plaintiffs are bald and mischievous and the same are intended to cause wrongful loss to the Defendant Bank and wrongful gains to the Plaintiffs. 15. I also deny that the Plaintiff No. 2 subsequently ceased to be a joint signatory in respect of the NRE Account No.6523. 1 say this because as per the records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RE Account No. 6523 to create a Fixed Deposit with the Defence colony branch, i.e.(Ex PW1/D68). The said transaction shows that the plaintiff no. 2 continued to issue cheques in the capacity of a joint account holder and continued to sign from the NRE account. 37. Therefore, in the absence of any material evidence being on record to show that there was a change in residential status of plaintiff No. 2and that the same was duly informed to defendant bank, the Issue no. III is decided against the plaintiff and in favour of the defendant bank. Issues No. II, IV and V 38. Issue No. II, IV, and V are inter-connected and therefore I shall be dealing with them together being: II. What is the effect of the pleadings filed by the plaintiff before the Consumer Disputes Redressal Commission in the OA.No. 150/92? IV. Whether plaintiff No. 2 had signed any blank cheque? If so, to what effect? V. Whether the transfer of Rs. 2 crores from the account of the plaintiffs by the defendant bank to the account of Asian Wire Ropes Limited, Hyderabad, was illegal, improper or without instructions? If so, to what effect? 39. In civil suits, when clear and clinching evidence is amiss, the court must decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l v. Kuppuswami, (2011) 12 SCC 220 held as under:- 21. Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party. 41. The case set up by the plaintiff is found in paragraphs 7, 8, 11, 13 and 15 of the plaint. The same read as under:- 7. That it may be pertinent to mention here that the officials of Defendant No. 2 had obtained a blank cheque from the plaintiff No, 2 had in a clandestine manner and had got it filled in the entries in the said cheque and had also made necessary instructions on the reverse side of the said cheque Since the account was an NRE Account and, therefore, no amount could have been invested out of it without prior approval of the Reserve Bank of India as provided under the provisions of Section 8 of the Foreign Exchange Regulation Act, herein after referred to as FERA. Moreover, since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffered a huge loss and damages for the past about 3 years, which they would have otherwise utilised in connection with and expansion of their business activities. Without prejudice to the plaintiffs right to claim such other and further damages as they may be entitled to for the various losses suffered by them by way of loss in business, loss in reputation, mental agony and tensions and the various expenses which the plaintiffs were forced to incur in connection with the above said misappropriation by the defendants, the plaintiffs have reserved their right to file a separate suit or to file, an additional claim in respect thereof. 42. A perusal of the above reproduced paragraphs shows that the case set up by the plaintiff is that the defendant bank unauthorizedly and without permission of the plaintiffs misappropriated an amount of Rs. 2 crores towards the liability of M/s Asian Wire Ropes Ltd. 43. During the course of the arguments, the learned counsel for the plaintiff has argued extensively on the ground that the cheque in question has been signed as R. Murti when the specimen signature card and the account opening form has the signature of the plaintiff no. 2 as R. Shandilya. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng absolutely blank in two relevant column meant for the Branch name and the account no. Ans.: The signatures appearing at point encircled 'A' on Ex.PW1/D4 appears to be similar to that of plaintiff 2. 16.08.2005 Ques. 11: Was any statement either of yours or of plaintiff No. 2 recording by any investigating authority in relation to the alleged complaint made referred to above? Ans .: Vol. I do not remember but I do remember very well without any particulars of time that one investigation officer of P.S. Lajpat Nagar had confirmed my view that Mr. Rajiv Shetty in conspiracy with other employees of defendant Bank have fabricated the specimen signature card of my wife's account no.6524 to create a defence by using the same as a specimen signature card of my NRE account no. NRE 6523 and also that the cheque of Rs. 2 crores taken from my wife by the defendant Bank pertaining to our account no. NRE 6523 should not have been honoured by the defendant Bank and Mr. Rajiv Shetty in particular, since the signatures on the particular cheque did not match the signatures of my wife on the specimen signature card of the account NRE 6523 namely R. Shandliya . 45. The plaintiffs submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Card of a NRE account? 3. Is it necessary that the signature on the Specimen Signature Card belonging to a NRE account must match Wiff the signature on the passport of the NRI account in whose the said NRE account is opened Thanks with best regards. Mohan Murti Shandilya 47. In this view, it is submitted by the plaintiff that the stand taken by the Bank that on the request of the plaintiff No 2 that she generally signs as R. Murti, therefore she will sign two specimen signature Card for one account does not hold good. Further, assuming but not admitting that plaintiff No. 2 ever requested the Bank to allow her to have two specimen signature card and the bank allowed also then it is evident that the bank was not discharging its duties as per the settled guidelines of RBI and therefore, defendant is liable to be punished for acting in derogation of guidelines of RBI. 48. The plaintiffs further challenge the reliance by the defendant bank on the telex message and the letter dated 23.04.1990 of Gambro Nexim (India) Medical Ltd (EX. PW1/D26) to transfer the amounts. It is stated that there is absolutely no way to ascertain the identity of the sender of a telex. Fax can transmit signatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk? Ans.: No necessarily. Q.7: Question No.6 is again repeated with emphasis on seeking an exact answer on fact, whether the account Nos. were filled in, as stated in the forgoing question in the presence of the account holders? Ans.: The account Nos. are allotted by the concerned department officer incharge and the plaintiffs were sitting in my chamber. I do not know exactly whether these account Nos. were allotted during, their stay in my chamber or not. I further state that it is filling of account no's on the account opening forms and S.S. cards, and not the allotment of account Nos. The plaintiff is seeking an explanation to the answer given by the witness above. The filling of the account nos. in the respective account opening forms and S.S. cards are done by the Savings Bank Department Official/Staff. I do not remember exact whether this has been done during the stay of plaintiffs in my chamber. 12.09.2007 Que. 12: Did you take the specimen signature card of Mrs. Renu Murty pertaining to this account No.6524? Ans .: Yes. Que. 20: Can you pass a cheque onthe basis of a signature placed by the account holder on the account opening form? Ans .: Normally we obtain invariably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 23.4.90 she told me on phone that money is to be transferred telegraphically to Hydrabad favouring Asian Wire Ropes Ltd. today itself, as she is going to become a Director in Asian Wire Ropes Ltd. However these details are already written on the reverse of the cheque as stated by her. 56. Further, the defendant bank submits that the plaintiffs have approached this Court with unclean hands and they have deliberately and dishonestly changed their stand while moving from one forum to the other. It is stated that there is no consistency or honesty in the pleadings of the plaintiffs in as much as the averment in para 3 (b), (c), (d), (h), (i), 4, 5 and 6 of the Consumer Complaint is either contrary to the averment in para 4, 5, 6 and 13 of the plaint or the same is altogether missing in this suit. This shows that the plaintiffs have levelled baseless and wild allegations only to make wrongful gains for themselves and cause wrongful loss to the defendant bank. The inconsistencies as alleged is reproduced in a tabular form as under:- S.No. Pleading in OA No. 150 of 92 (Before the learned NCDRC) Pleading in this Suit i. In paragraph 3(b) and (c) it is stated that Sh. Sadanand Shetty (the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his web to save his own skin. No such averment. vi. In paragraph 5 and 6 it is stated that the complainant was allured, befooled and cheated by Sh. Sadanad Shetty by giving rosy picture about the economic viability of the aforesaid two units while bank officials were aware about the violations of Income Tax, Excise, Sales Tax, ESI and Provident Fund Act, etc. committed by the previous management and various pending cases. It is alleged that the aforesaid sick companies, with huge liabilities and criminal cases, were thrusted on the complainant and the bank abruptly withdrew the credit facilities enjoyed by the aforesaid two companies which made it virtually impossible for the complainant to run the same. No such averment or allegation. vii. The action of the bank constitutes deficiency in service. No such averment. 57. In the present case, the hurdles that arise on preponderance of probabilities vis- -vis the case set out by the plaintiffs are:- a) inconsistent stands taken by the plaintiffs before different forums; (b) continuation in dealing with defendant bank after the alleged fraud; (c) Other cheques issued in NRE account no. 6523 by plaintiff no. 2 as R. Murti in EX. PW1/D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Account Opening Form and the Specimen Signature Card of the NRE Account No. 6523 is against the banking regulations but an averment/foundational fact to this effect is amiss from the pleadings filed by the plaintiff. It is only at the stage of filing the Evidence by way Affidavits by the plaintiffs that the averment of the cheque in question being signed as R. Murti cannot be encashed since the Specimen Signature Card of the plaintiff no. 2 in NRE Account No. 6523 reads as R. Shandilya has been brought on record. It is a settled principle in law that no evidence can be led beyond pleadings. This court in Prakash Rattan Lal v Mankey Ram, 2010 DHC 266 has held as under:- 4. The sole purpose of pleadings is to bind the parties to a stand. When the plaintiff makes certain allegations, the defendant is supposed to disclose his defence to each and every allegation specifically and state true facts to the court and once the facts are stated by both the parties, the court has to frame issues and ask the parties to lead evidence. It is settled law that the parties can lead evidence limited to their pleadings and parties while leading evidence cannot travel beyond pleadings. If the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief. Emphasis Supplied 65. Additionally, the plaintiff in their written submissions have themselves admitted that plaintiff no. 2 would inadvertently and mistakenly sign as R. Murti for the account bearing number N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the Bank. When plaintiff No. 2 requested orally for issuance of another specimen signature card, the issuance of the second specimen card to her was not reduced into writing by the bank. Q. It is put to you that by issuing two specimen signature cards to plaintiff No. 2 simultaneously the bank has acted in direct derogation of the mandatory RBI guidelines pertaining to account opening. What do you have to say? (Ld. counsel for defendant has objected to the question on the ground that it is vague). Ans . There is no violation. Vol. Plaintiff No. 2 had mentioned on the back of cheque Ex.PW1/D-31 that please issue a telegraphic transfer on your Hyderabad Branch (Bank Street) favouring Asian Wires Ropes Ltd. and it was signed by her. Plaintiff No. 2 did not sign in my presence. I do not know if the writing on the back of the said cheque is in the hand of plaintiff No. 2 or not. It is not in my knowledge if the bank approached CFSL New Delhi for comparison of the writing on the back of cheque Ex.PW1/D-31 with the writing of plaintiff No. 2. 69. In view of the aforesaid, the reliance of the plaintiffs on the RTI reply by the RBI to prove its case cannot be accepted. 70. Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Asian Wire Ropes Ltd had been finalised and making a request for transfer of Rs. 2 crores to the Asian Wire Ropes Ltd Account at Vijaya Bank St., Hyderabad. It transpired that the plaintiffs had entered into a business transaction for taking over the M/s Asian Wire Ropes Ltd and for that purpose, the transfer was sought. In fact a copy of the memorandum of understanding dated 20.4.1990 arrived that the then management of M/s Asian Wire Ropes Ltd and plaintiff No. 1 was also sent to the plaintiff bank. The plaintiff also sent a letter dated 23.4.1990 to the Bangalore office authorising the payment of Rs. 2 crores. Thus the story now sought to be set up by the plaintiff 1 completely false. It is also relevant to point out that the stand now sought to be taken by the plaintiffs contradicts that the pleadings in earlier petition bearing no. 150 of 1992 filed before the National Consumer Disputes Redressal Commission by plaintiff No. 1 which was dismissed by order dated 19.3.1993. 72. The plaintiffs have failed to examine any expert witness, or handwriting expert to prove the allegation that the instructions on the reverse side of the cheque was not written by the plaintiffs but by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on the basis of account opening form? Ans .: The cheque is passed by the concerned S.B. department officer and not by me. Que.22: Did you authorise the encashment of Ex. PW1/D-31? Ans .: The cheque is authorized by the concerned department. Again said, the authorization for payment is done by the concerned department officer, however whenever the large amount is withdrawn, such cheques are initiated by the Branch Head for the information purpose: That is why I have initiated at point encircled DW1/A-22, on the said cheque. Que. 23: Therefore you did not authorise the encashment of this cheque, which was initiated by you only for purpose of information? Ans .: Yes, this was not authorized by me. Vol. Normally the concerned department officer passes the cheque for payment after verifying the correctness of the instrument i.e. date, payee, amount in words and figures, and verify of the specimen signatures. If the cheque amount is fifty thousand and above, he brings the cheque to me for my initial and information. Cross-examination of DW2 25.03.2011 Q. On the basis of records, can you say as to who brought this cheque Ex. PW1/D-31 to the bank? Ans . Some representative of plaintiff n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approached CFSL New Delhi for comparison of the writing on the back of cheque Ex.PW1/D-31 with the writing of plaintiff No. 2. Q. When Ex.PWI/D-31 was sent to CFSL vide Ex.PW1/D-46, please tell as to why the writing on the reverse of the said cheque was not sought to be examined by CFSL as to the identity of the writer? Ans . I do not know. 75. From the evidence discussed above, it is clear that the plaintiffs have not been able to discharge the onus to prove the allegation against the defendant bank that the instructions on reverse were not written by the plaintiff no. 2 but written by the defendant bank. 76. What weighs with me, assuming and giving benefit of doubt to the plaintiffs, that (a) the cheque was unauthorisedly encashed by the defendant bank to withdraw the amounts and (b) no instructions were written on the reverse side of the cheque in question; is the subsequent conduct of the plaintiffs. The plaintiffs have continued their business relationship with the defendant bank subsequent to the alleged fraud. The plaintiffs have opened a bank account in the name of M/s. Asian Wire Ropes Ltd (Ex. PW1/D10) showing active involvement of the plaintiffs with M/s. Asian Wire Rope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducting an inquiry and registering of an FIR. The defendant bank cannot be accepted to say that a Specimen Signature Card of an individual is lost and the defendant bank did nothing about it. 82. However, the issue with regard to dereliction of duty of the defendant bank is not before me. The plaintiffs have alleged fraud and forgery by the defendant bank, the onus of which lay on the plaintiffs in view of Section 104 of the Bharatiya Sakshya Adhiniyam, 2023. It reads as under:- 104. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person 83. The party which comes to the court and seeks the courts adjudication on issues in its favour has to discharge the onus of proof. 84. In view of the evidence discussed, the plaintiffs have failed to prove that the instructions written on the reverse side of the cheque were not given by the plaintiff no. 2 but written by the defendant bank. The plaintiffs have failed to prove that the act of encashing the cheque in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at rates of exchange other than the rates for the time being authorised by the Reserve Bank. (3) Where any foreign exchange is acquired by any person, other than an authorised dealer or a money-changer, for any particular purpose, or where any person has been permitted conditionally to acquire foreign exchange, the said person shall not use the foreign exchange so acquired otherwise than for that purpose or, as the case may be, fail to comply with any condition to which the permission granted to him is subject, and where any foreign exchange so acquired cannot be so used or the conditions cannot be complied with the said person shall, within a period of thirty days from the date on which he comes to know that such foreign exchange cannot be so used or the conditions cannot be complied with, sell the foreign exchange to an authorised dealer or to a moneychanger. (4) For the avoidance of doubt, it is hereby declared that where a person acquires foreign exchange for sending or bringing into India any goods but sends or brings no such goods or does not send or bring goods of a value representing the foreign exchange acquired, within a reasonable time or sends or brings any goods of a k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rules framed under the Act, and that when the law provides for the same offence being tried under two procedures, which are substantially different, and it is left to the discretion of an executive officer whether the trial should take place under the one or the other of them, there is clear discrimination, and Article 14 is contravened. Therefore Section 23 (1) (a) must, it is argued, be struck down as unconstitutional and the imposition of fine on the appellant under that section set aside as illegal. 7. It is not disputed by the appellant that the subject-matter of the legislation viz. foreign exchange, has features and problems peculiarly its own, and that it forms a class in itself. A law which prescribes a special procedure for investigation of breaches of foreign exchange regulations will therefore be not hit by Article 14 as it is based on a classification which has a just and reasonable relation to the object of the legislation. The vires of Section 23 (1) (a) is accordingly not open to attack on the ground that it is governed by a procedure different from that prescribed by the Code of Criminal Procedure. That indeed is not controverted by the appellant. That being so, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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