@JUDGMENTTAG-ORDER
S.C. Vyas, J.
Invoking extra-ordinary jurisdiction of this Court u/s 482 of the Code of Criminal Procedure petitioner has challenged the question of cognizance, of the offence punishable u/s 138, Negotiable Instruments Act (In short called as ''the Act'') taken against him by JMFC, Indore.
Short facts of the case are that petitioner obtained a loan of Rs. 50,000/- from the respondent and for repayment of said amount of loan one cheque bearing No. 125650 of Shubhlaxmi Mahila Cooperative Bank Ltd. amounting to Rs. 50,000/- was executed in favour of the respondent. When the cheque was presented for collection to the bank of complainant, then it was bounced with an endorsement "opening funds insufficient", then complainant/respondent issued notice to the petitioner calling upon him to pay the cheque amount deducting an amount of Rs. 5,000/-, which was paid in the meantime by the petitioner to the respondent. Said notice was received by the petitioner but no payment was made within stipulated time, then a private complaint against the petitioner was filed. Learned Magistrate, who after recording the statement of complainant u/s 200, Cr.PC took cognizance of the offence and ordered issuance of bailable warrant against the petitioner. Petitioner then rushed to this Court and filed the present petition.
Learned Counsel for the petitioner Shri Nalwaya contended a short question for adjudication in this petition, he submitted that notice which was given by the respondent to the petitioner calling upon to pay the amount of cheque, was not for the amount of cheque but was for payment of Rs. 45,000/-whereas the amount of cheque was Rs. 50,000/- and, therefore, the complaint which was filed on the basis of such notice is not maintainable and is liable to be quashed.
Learned Counsel for petitioner submitted that as per the provisions of Section 138 Proviso (b) the demand for payment which was required to be made by the payee or the holder in due course of the cheque, should be regarding the amount cheque and should neither be in excess of it nor should be short of it. If the demand which is made by a notice under this proviso is not regarding the amount of cheque then such demand can not be termed as demand for the "said amount of money" and, therefore, the complaint which has been filed on the basis of such demand notice is not maintainable. He very strongly placed reliance on the decision of Supreme Court in the case of KR. Indira v. Dr. G. Adinarayana (2003) 8 S C Cas 300, he has also placed reliance on the decision of Madras High Court in the case of Poppys Spinning Mills (P) Ltd. v. C. Visalakshi, Proprietrix, Sri Karpaga Vinayagar Textile, Tirupru and Anr. 2005(1) B J 611 and T.C.I. Finance Ltd. v. State of Andhra Pradesh and Anr. 2005(1) B J 662 of Andhra Pradesh High Court.
Per contra, learned Counsel for the respondent Shri Ahiwasi submitted that the notice given by the respondent to the petitioner was perfectly in conformity with Proviso (B) of Section 138 of the Act and there is nothing wrong with the notice, so the prosecution is very well maintainable on the basis of such notice. He placed reliance upon the decision of Supreme Court in the case of
As the matter is pending before the Court of JMFC, therefore detailed facts are not required to be examined at this stage. Evidence in the matter is yet to be recorded by the Trial Court and this Court is required to examine, presuming the contents of the notice are true.
In the notice given by respondent to the petitioner dated 18-7-2005 the last paragraph runs as under :
This paragraph shows that a demand of Rs. 50,000/- which was amount of cheque was made by the respondent from the petitioner, however, Rs. 5,000/- were deducted which was already paid by the petitioner to the respondent in the meantime, therefore, the ultimate demand was for payment of Rs. 45,000/- and not Rs. 50,000/-.
Learned Counsel for the petitioner submitted that this is the notice for demand of Rs. 45,000/- only, which was not the cheque amount and as the cheque amount was of Rs. 50,000/- so the demand should have been for Rs. 50,000/- and not for a lesser amount. If some amount has been paid then remedy left for the complainant, was to file a civil suit and not complaint u/s 138 of Negotiable Instrument Act.
In the case of Suman Sethi v. Ajay K. Churiwal (supra) the question regarding giving notice under proviso of Clauses (b) and (c) of Section 138 of the Act was considered by the Hon''ble Supreme Court and it was held in Para 8 that--
It is well settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the "said amount" i.e., cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where in addition to "said amount" there is also a claim by way of interest, cost etc., whether the notice is bad would depend on the language of the notice. If in a notice while giving up break up of the claim the cheque amount, interest damages etc., are separately specified, other such claims for interest, cost etc., would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, notice might well fail to meet the legal requirement and may be regarded as bad.
It is clear from the observations made by the Hon''ble Supreme Court, that while stating the cheque amount, against which, specific demand in the notice given under the Proviso (b) of Section 138 of the Act has been made and it must be clearly stated in the notice that what was due under the dishonoured cheque, if it is not specified in the notice that what was due under the dishonoured cheque then the notice might well fail to meet legal requirement and may be regarded as bad.
In the present case the notice given by the respondent to the petitioner clearly in specific words shows that out of the amount of Rs. 50,000/-which was amount of cheque Rs. 45,000/- are due as Rs. 5,000/- were paid in between by the petitioner and, therefore, applying the principles laid down by the Hon''ble Supreme Court in the facts of the present case the notice which was given by the respondent to the petitioner can not be said to be bad at this stage when the case is yet to be tried by the Trial Court.
In the case of K.R. Indira v. Dr. G. Adinarayana, (supra) the notice which was given by complainant to the accused was not at all showing as to what was the cheque amount. In the facts of that case a consolidated notice of two cheques was given by both the complainants to the accused and, therefore, notice was held not in accordance with the Proviso (b) of Section 138 of the Act. In Paragraph 10 of the judgment Hon''ble Supreme Court held as under:
Paragraph 10. The offence u/s 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence : (1) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharged in whole/in part of any debt or liability, (2) presentation of the cheque by the payee or the holder in due course to the bank, (3) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) giving notice in writing to the drawer of the cheque within 15 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, and (5) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
Suman Sethi''s case was also considered by the Supreme Court in that case and it was found that as consolidated notice which was given by the complainant to the accused was not separable in the way and that there was no specific demand made in the payment of amount covered by the cheque and in the notice the demand was not made for the cheque amounts but only the loan amount as though it is demand for the loan amount and not the demand for the payment of cheque amount, nor could it be said that it was the demand for the payment of cheque amount and in addition thereto made further demands as well. It has been held by Hon''ble Supreme Court that what is necessary for making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case. Notice in question was found imperfect in that case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount.
In the present case there is a specific demand of cheque amount of Rs. 50,000/~, however, an allowance of Rs. 5,000/- was given by the respondent to the petitioner with respect to the amount which was paid by the petitioner through another cheque and, therefore, if such amount has been deducted from the cheque amount then it can not be said that the notice which was given by the respondent to the petitioner is imperfect in law and the prosecution on the basis of such notice is very well maintainable.
The other two cases which are cited by the learned Counsel for the petitioner are also distinguishable on facts. In the case of Poppys Spinning Mills (P) Ltd, (supra) the cheque amount was Rs. 2,32,099/- whereas the notice was given for Rs. 2,39,099/- and so the notice was found defective. In the case of T.C.I. Finance Ltd. (supra) interest @ 24% was added in the notice without furnishing details and so the notice was found defective. It is also pertinent to note that all the cases which are cited by the learned Counsel for the complainant were criminal appeals in which the conviction of the accused was challenged whereas in the present case the petitioner seeks quashment of the complaint on the basis of plea of defective notice. But on careful scrutiny of the notice send to the petitioner by the respondent and after going through the decisions of Hon''ble Supreme Court and other High Courts cited by the learned Counsel for the petitioner and the respondent in the case, this Court, feels that as the cheque amount has been mentioned in the notice and allowance of Rs. 5,000/-was given to the petitioner on account of payment made by him, so at this stage, this can not be held, that, the notice is defective, and, so there is no ground to quash the proceedings, which are pending before learned Judicial Magistrate.
Therefore, the petition filed by the petitioner u/s 482 of Cr.PC fails and is dismissed. However, it is clarified that any observation made in this order will not come in the way of the Trial Court in adjudication of any question of fact and law, which may arise during the trial. Learned Counsel for the petitioner shall also be having an opportunity to raise all these questions which have been raised in this petition during trial at an appropriate stage and the Trial Court shall adjudicate such questions without being influenced by any observation made by this Court in this order.
