JUDGMENT
V.S. Aggarwal, J.
1. By this common judgment Criminal Revision Nos. 245 of 1995 (Harbinder Singh v. Smt. Suman Rani) and 234 of 1995 (Harbinder Singh v. Smt. Neelam Rani) can be disposed of together because the questions involved in both the petitions are identical.
2. Harbinder Singh, petitioner, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”), against Smt. Suman Rani. In one complaint, as a result of which Criminal Revision No. 245 of 1995 has arisen, he asserted that in lieu of the agreement dated October 19, 1992, Smt. Suman Rani had issued a post-dated cheque on October 26, 1992, for Rs. 50,000. The cheque was presented in Punjab and Sind Bank, Sangrur, and was returned unpaid by the Union Bank of India, Sangrur Branch. A notice was served but the respondent failed to make the payment. This resulted in the filing of the complaint under Section
158 of the Negotiable Instruments Act, 1881.
3. The Chief Judicial Magistrate, Sangrur, after perusing the preliminary evidence held that there are sufficient grounds to proceed against the respondent-accused and summons as such were directed to be issued. The respondent filed a revision petition in the Court of Sessions at Sangrur. The learned Sessions Judge accepted the revision petition and set aside the order passed by the learned Chief Judicial Magistrate, Sangrur. In coming to this conclusion the learned Sessions Judge was influenced by the fact that the notice alleged to have been served was invalid. There was no demand made for making the payment and accordingly the revision petition was allowed and the complaint was dismissed.
4. On identical facts Harbinder Singh, the petitioner, had filed another complaint against Smt. Neelam Rani and it requires no repetition.
5. On the date fixed, none appeared for the petitioner and in these circumstances, the court did not have the advantage of hearing learned counsel for the petitioner.
6. Section 138 of the Negotiable Instruments Act, which was inserted with effect from January 14, 1989, reads ;
“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) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier ;
(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.”
7. It is apparent from the aforesaid that an offence was created by this legislative act. It provides that if the cheque is drawn by a person on an account maintained by him for payment of an amount to another person and it is returned by the bank unpaid, either because the money standing to the credit is insufficient or it exceeds the amount arranged, then the such person is deemed to have committed the said offence. However, the proviso to Section 138 clearly provides that before it can be held that an offence punishable under Section 158 of the Act has been committed, the cheque must be presented within the period of six months from the date on which it is drawn. A demand for the payment must be made within 15 days of the receipt of the information and lastly the drawer of such
cheque must fail to make the payment. In other words, amongst other conditions, that are the necessary pre-requisite, the demand for payment by giving a notice in writing must also be given.
8. The Legislature has not provided any particular form by which the demand must be made. Consequently, the general principles must be applicable that the notice must be construed constructively. The Supreme Court in the case of Bhagabandas Agarwalla v. Bhagwandas Kanu, AIR 1977 SC 1120, referred to the earlier precedents and held that notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat (that an act may avail rather than perish). It was held that the validity of a notice or ought not to turn on the splitting of a straw. Of course, the Supreme Court was considering a notice of termination of the tenancy under the Transfer of Property Act but the basic principle referred to above would still be attracted.
9. The notice in the present case indicates that the attention of the respondent had been drawn to the fact about the cheque having been issued which was dishonoured. Thereupon, the petitioner intimated :
“You are informed through this notice that you have intentionally played a fraud on my client for which you are liable to be punished in accordance with law. Therefore, you are called upon within 15 days of the receipt of the notice to explain as to why criminal proceedings should not be launched against you.”
10. It is obvious from the aforesaid that there was no specific demand made but after drawing the attention that cheque has been dishonoured, the respondent in each case was called upon to explain within 15 days as to why criminal proceedings be not initiated. More often than once, it has been held that it is sufficient if the notice is such that it can be rendered clear and unambiguous by the application of the maxim certum est quod certum reddi potest (that is certain which can be made certain). The difficulty in the present case still arises that there is no mention of any demand from the respondent. There is only a threat of criminal proceedings to be initiated. By implication even it would be difficult to state that a demand was made. Such inference even cannot be drawn that a demand was made to make the payment under Section 138 of the Act. In the absence of any such demand, necessarily it must follow that there was no valid notice served and proceedings could not be initiated. There is no ground to interfere.
11. For these reasons, the revision petitions being without merit fail and are dismissed.