JUDGMENT
J.M. James, J.
1. The question raised in this appeal is whether a notice issued under Clause (b) of the proviso to Section 138 of the Negotiable Instruments Act, (in short ‘the Act’) stating, apart from the cheque amount, the interest and cost, thereby demanding an amount more than the amount covered by the cheque, could be considered as a valid notice under the Act.
2. The appellant filed a complaint before the Judicial First Class Magistrate Court, Sasthamcotta, against the accused, as the cheque for Rs. 4,00,000/- issued by the accused was dishonoured. He had sent a notice stating, inter alia, as follows:
“Hence you are hereby called upon and required to pay Rs. 4,00,000/- and with interest together with Rs. 200/- (two hundred only) being the cost of this notice within 15 days from the date of receipt of this notice failing which my client will be forced to launch necessary proceedings Under Section 138 of the NegotiableInstruments Act and……….”.
3. The accused filed Crl.M.P. 1341 of 1997 before the Court below and prayed, relying on the principle of law laid down by this Court in Raj v. Rajan, 1997 (1) KLT 302, that the demand of the amount other than the cheque amount, including interest and cost, could render the notice invalid as per the provisions of the Act and hence, the complaint will not lie. The Court below, therefore, allowed the petition and consequently dismissed the complaint. The same is under challenge before this Court through this appeal.
4. In the decision in Raj v. Rajan (supra), the complainant filed the appeal challenging the reversal of the conviction and sentence of the Magistrate by the Sessions Court and thereby acquitting the accused. A learned Single Judge of this Court appreciated the entire evidence adduced by the parties and held that the acquittal by the Sessions Court was legal. However, at paragraph 12 of the said judgment the learned Single Judge also observed as follows:
“12. In the case at hand, the amount covered by the cheque is Rs. 40,000/-. But in the notice, it was not the said amount which was claimed, but that amount together with interest without specifying the amount of interest or the rate of 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”.
Hence, the acquittal of the accused in that case was sustained not only because the notice was insufficient, but it was on merit also.
5. In Kunjan Panicker v. Christudas, 1997 (2) KLT 539, this Court had an opportunity to consider whether the demand of the cheque amount together with interest and cost, would be an inadequate notice under the provisions of the Act. This Court clarified that if the notice had stated the cheque and demanded the same, together with interest and costs, that notice would not be bad in law and it is also not barred by law. If the accused paid the amount within the statutory period of 15 days, then the dismissal of the petition would be legal. Under the provisions of Section 138 of the Act, the cheque amount alone need be demanded. Even if other demands are made, the complainant may have to seek recovery of such amounts, other than the cheque amount, in appropriate civil proceedings. On the other hand, if an omnibus demand is made without specifying the cheque amount, that notice would, obviously, be an invalid notice, which would be insufficient under the provisions of the Act.
6. In Suman Sethi v. Ajay K. Churiwal, (2000) 2 SCC 380, the Apex Court had an occasion to consider the sufficiency of the notice, which contained a demand of the cheque amount together with interest and costs. The Court held that “the said amount” mentioned in Section 138 of the Act is the cheque amount. Further, the Supreme Court held as follows:
“7. There is no ambiguity or doubt in the language of Section 138. Reading the entire section as a whole and applying common sense, from the words as stated above, it is clear that the legislature intended that in a notice under Clause (b) to the proviso, the demand had to be made for the cheque amount. According to Dr. Dhavan, the notice of demand should not contain anything more or less than what is due under the cheque.
8. It is a 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” 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 the breakup 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, the notice might well fail to meet the legal requirement and may be regard as bad”.
The Apex Court also followed this legal maxim in the decision in United Credit Ltd., Calcutta v. Agro Sales India, 2003 SCC (Cri) 1055.
7. The above legal principles clearly lay down that if a notice is issued stating the cheque amount together with interest and costs and if the cheque amount is specifically demanded therein, it would then be a valid and legal notice as “the said amount” contemplated under Clause (b) of the proviso to Section 138 of the Act is conveyed through the notice. If a total amount alone is demanded, whereby the accused was unable to know the actual amount covered by the cheque and, therefore, he was prevented from paying back the amount within the legally permitted period, that notice would be an invalid notice under the Act. In the case at hand, the cheque amount is Rs. 4,00,000/-. That amount has specifically been demanded through the notice. The other amounts demanded by the notice can be recovered only if appropriate civil proceedings are initiated against the accused. In view of the above legal position, as discussed above, the principle contained in Raj v. Rajan (supra) cannot be accepted as a good law. Therefore, I hold that the notice dated 29.8.1995 issued by the complainant through his advocate is a valid notice under the Act. Hence, the learned Magistrate went wrong in applying the principle contained in the decision in Raj v. Rajan (supra) and consequently acquitting the accused.
In the result, this appeal is allowed. The impugned order of the Court below is set aside. C.C. No. 375/1995 on the file of the Judicial First Class Magistrate Court, Sasthamcotta is restored to the file of that Court. The learned Magistrate shall dispose of, the same at the earliest, as per law.