BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/08/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA Criminal Original Petition(MD) No.6678 of 2010 and M.P.(MD) Nos.2 and 3 of 2010 Saravanan .. Petitioner vs S.N.Sundaram .. Respondent Prayer Criminal Original Petition filed under Section 482 of Cr.P.C. to call for the records in connection with the case in C.C.No.476 of 2009 on the file of the learned Judicial Magistrate No.1, Dindigul and quash the same. !For petitioner ... Mr.N.Sathish Babu ^For Respondents ... No appearance :ORDER
The petitioner approaches this Court with a prayer to call for the records
in connection with the case in C.C.No.476 of 2009 on the file of the learned
Judicial Magistrate No.1, Dindigul and quash the same.
2.The learned counsel appearing for the petitioner would submit that in
the private complaint filed by the respondent, it is alleged that the petitioner
had borrowed a sum of Rs.1,50,000/- from the respondent on 15.12.2009 for his
urgent financial needs and given a cheque for the said amount bearing No.868385
drawn on Indian Bank, Dindigul Branch and promised to repay the said amount
within a period of 3 months, since he has not been repaid the amount, the
respondent has represented the cheque for collection on 15.05.2009, but the same
was returned as “funds insufficient’ and thereafter, the respondent has issued
statutory notice to the petitioner on 11.06.2009 demanding the amount of
Rs.15,00,000/- instead of Rs.1,50,000/- and subsequently, the respondent issued
a re-joinder notice stating that there is typographical mistake in mentioning
the amount and the petitioner has to pay a sum of Rs.1,50,000/- and then, the
petitioner has also sent reply denying his liability and thereafter, the
respondent has preferred the complaint for the offence under Section 138 of
Negotiable Instrument Act, for which, the petitioner has come forward with the
present petition to quash the said complaint.
3.Even though, notice has been served to the respondent, he has not
appeared before this Court either himself or through counsel.
4.Now, this Court has to decide as to whether the mentioning of
Rs.15,00,000/- in the statutory notice dated 11.06.2009 instead of Rs.1,50,000/-
will vitiate the entire proceedings even though a rejoinder notice has been
issued by the respondent stating that the same is a typographical error.
5.The learned counsel appearing for the petitioner would rely upon the
decisions in K.R.Indira Vs. Dr.G.Adinarayana reported in 2004-1 L.W. (Crl.) 438
and Raj Vs. Rajan reported in III(1997) CCR 643 and submit that the notice
claiming higher amount or lesser makes it insufficient and vague, such notice
will be illegal. It is appropriate to consider the above said decision
wherein, the Kerala High Court has held as follows:
“In the case at hand, the amount covered by the cheque is Rs.40,000/-
which was claimed, but that amount together with interest without specifying the
amount of interest or the rate interest. that certainly makes a notice vague
and insufficient. It cannot be treated as a notice as contemplated by proviso
(b) to Section 138 of the Act. In the circumstances, for want of the proper and
legal notice also, the acquittal is sustainable.”
It is also appropriate to consider the decision in K.R.Indira Vs.
Dr.G.Adinarayana reported in 2004-1 L.W. (Crl.) 438, wherein, the Aped Court has
held as follows:
“7. The only question for consideration by us is whether the notice in
question purportedly issued under clause (b) of the proviso to Section 138 of
the Act was valid or not. Section 139 of the Act has also relevance and needs
reference. We extract below Sections 138 and 139 of the Act:
“138. Dishonour of cheque for insufficiency etc. of funds in the account.-Where
any cheque drawn by a person on an account maintained by him with a banker for
payment of any amount of money to another person from out of that account for
the discharge, in whole or in part, of any debt or other liability, is returned
by the bank unpaid, either because of the amount of money standing to the credit
of that account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement made with that
bank, such person shall be deemed to have committed an offence and shall,
without prejudice to any other provision of this Act, be punished with
imprisonment for a term which may extend to one year, or with fine which may
extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) * * *
(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 fifteen 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.
* * *
139. Presumption in favour of holder.-It shall be presumed, unless the contrary
is proved, that the holder of a cheque received the cheque, of the nature
referred to in Section 138 for the discharge, in whole or in part, of any debt
or other liability.”
8. As was observed by this Court in Central Bank of India v. Saxons Farms1
the object of the notice is to give a chance to the drawer of the cheque to
rectify his omission. The demand in the notice has to be in relation to “said
amount of money” as described in the provision. The expression “payment of any
amount of money” as appearing in the main portion of Section 138 of the Act goes
to show that it needs to be established that the cheque was drawn for the
purpose of discharging in whole or in part of any debt or any liability, even
though the notice as contemplated may involve demands for compensation, costs,
interest etc. The drawer of the cheque stands absolved from his liability under
Section 138 of the Act if he makes the payment of the amount covered by the
cheque of which he was the drawer within 15 days from the date of receipt of
notice or before the complaint is filed.
9. In Suman Sethi v. Ajay K. Churiwal2 it was held that the legislative
intent as evident from Section 138 of the Act is that if for the dishonoured
cheque the demand is not met within 15 days of the receipt of the notice the
drawer is liable for conviction. If the cheque amount is paid within the above
period or before the complaint is filed the legal liability under Section 138
ceases to be operative and for the recovery of other demands such as
compensation, costs, interests etc. separate proceedings would lie. If in a
notice any other sum is indicated in addition to the amount covered by the
cheque, that does not invalidate the notice.
10. The offence under Section 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 discharge 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.
11. Strong reliance was placed by the learned counsel for the appellants
on Suman Sethi case2 to contend that if the indication in the notice of other
amounts than that covered by the cheque issued, does not as held by this Court
invalidate the notice, there is no reason as to why a consolidated notice for
two complainants cannot be issued. The extreme plea as is sought to be raised in
this case based upon Suman Sethi case2 is clearly untenable. Though no formal
notice is prescribed in the provision, the statutory provision indicates in
unmistakable terms as to what should be clearly indicated in the notice and what
manner of demand it should make. In Suman Sethi case2 on considering the
contents of the notice, it was observed that there was specific demand in
respect of the amount covered by the cheque and the fact that certain additional
demands incidental to it, in the form of expenses incurred for clearance and
notice charges were also made, did not vitiate the notice. In a given case if
the consolidated notice is found to provide sufficient information envisaged by
the statutory provision and there was a specific demand for the payment of the
sum covered by the cheque dishonoured, mere fact that it was a consolidated
notice, and/or that further demands in addition to the statutorily envisaged
demand were also found to have been made may not invalidate the same. This
position could not be disputed by the learned counsel for the respondent.
However, according to the respondent, the notice in question is not separable in
that way and that there was no specific demand made for payment of the amount
covered by the cheque. We have perused the contents of the notice.
Significantly, not only the cheque amounts were different from the alleged loan
amounts but the demand was made not of the cheque amounts but only the loan
amount as though it is a demand for the loan amount and not the demand for
payment of the cheque amount, nor could it be said that it was a demand for
payment of the cheque amount and in addition thereto made further demands as
well. What is necessary is making of a demand for the amount covered by the
bounced cheque which is conspicuously absent in the notice issued in this case.
The notice in question is imperfect in this 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, the non-compliance with such a demand only
being the incriminating circumstance which exposes the drawer for being
proceeded against under Section 138 of the Act.”
6.Considering the submissions on either side and the decisions relied
upon, it is alleged that the petitioner herein has received a sum of
Rs.1,50,000/- from the respondent and issued a cheque and he had also given
undertaking that he will repay the same within three months, since he has not
repaid the amount, the respondent has represented the cheque on 15.05.2009,
which was returned as “insufficient funds” and thereafter, the respondent has
issued a statutory notice on 11.06.2009, wherein, he has demanded a sum of
Rs.15,00,000/- instead of Rs.1,50,000/- and a rejoinder notice dated 23.06.2009
has also been issued by the respondent, in which paragraph No.2, the respondent
has stated that the same is only a typographical error.
7.A perusal of the entire records would reveal that the cheque was
returned on 15.05.2009 and the statutory notice has been sent on 11.06.2009 with
a demand for a sum of Rs.15,00,000/- instead of Rs.1,50,000/- and immediately,
he sent the rejoinder notice on 23.06.2009, then only, the petitioner has sent
reply on 27.06.2009. Even though in the statutory notice, the respondent has
mentioned wrongly, that has been properly explained in the rejoinder notice.
Admittedly, the complaint has also been preferred before the court within the
time stipulated under Section 138 of Negotiable Instrument Act, hence, the above
said decisions are not applicable to be facts of the present case.
8.In such circumstances, the arguments advanced by the learned counsel
appearing for the petitioner that since the statutory notice is not contained
the correct amount of cheque is a ground for quashing does not merit acceptance
and there is no reason to quash the proceedings against the petitioner and
hence, this Court is of the opinion that the criminal original petition is
liable to be dismissed.
9.In fine, this criminal original petition is dismissed. Consequently,
connected miscellaneous petitions are closed.
Arul
To
The Judicial Magistrate No.1,
Dindigul.