Delhi High Court
Sunil Srivastava vs Shri Ashok Kalra on 25 September, 2002
Equivalent citations: 2003(2)ALD(CRI)8, 2003CRILJ1443, 101(2002)DLT245, 2003(66)DRJ390
Author: Mahmood Ali Khan
Bench: Mahmood Ali Khan
JUDGMENT Mahmood Ali Khan, J.
1. The petitioner is an accused in a criminal complaint filed by the respondent for his prosecution for offence under Section 138 of Negotiable Instrument Act (in short the Act) before a court in Delhi. He has filed this petition under Section 482 of Cr.P.C. for quashing of this criminal complaint.
2. Supreme Court in Rajender Prasad v. Bashir and Ors., 2001 III AD(CR)SC 384 after referring to the earlier judgment in Krishnan and Anr. v. Krishnaveni and Anr. held that the High Court should exercise its inherent power under Section 482 Cr.P.C. in special circumstances. In Krishnana and another (supra) the Supreme Court had laid down that the High Court may exercise power under Section 482 Cr.P.C. where High Court finds that there had been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may, in its discretion prevent the abuse of the process or miscarriage of justice. It is now well settled that a criminal complaint which does not disclose commission of offence may be quashed in order to prevent abuse of process. In the light of the above law, I proceed to decide the petition on its merit.
3. The grounds on which the petitioner wants this criminal complaint to be quashed may be summarised as below:-
1) The criminal complaint is filed beyond the time prescribed by Section 142 of the Act, as such, the trial court was debarred from taking cognizance of the offence and proceed with the trial.
2) There is no legal enforceable debt or liability against the petitioner accused entitling the respondent complaint to institute the criminal proceeding under Section 138 of the Act.
3) The cause of action had arisen at Kanpur where the cheques were dishonoured by the bank. Therefore, courts at Delhi had no territorial jurisdiction to entertain these criminal complaints.
4) A notice of demand is invalid as much as it has demanded the amount of cheque and other outstanding dues.
Before adverting on the above grounds and the case law cited by the petitioner, it will be necessary to state the relevant facts for appreciating the arguments on merit.
4. A criminal complaint was filed by the respondent alleging that he was proprietor of M/s Transworld Cargo & Travels having its office at 2197/3, Chuna Mandi, Paharganj, New Delhi. The petitioner accused used to get consignments for his various clients booked for transportation through the respondent in respect of which the respondent had raised bills in the name of the clients of the petitioner as requested and demanded by the petitioner but the payments were being made by the petitioner in respect of those consignments. In order to make the payment of the outstanding dues of the respondent, the petitioner issued, amongst others, four cheques dated 12.6.1996, 23.7.1996, 27.11.1996 and 23.7.1996 all drawn on his banker State Bank of Patiala, Naveen Market, Kanpur for the sum of Rs. 1.00 lac, 34,000/-, 34,000/- and 32,000/- respectively in favor of respondent firm in part payment of the freight payable in respect of the consignment. The cheques were presented to the banker of the petitioner through Oriental Bank of Commerce, Rajindra Nagar, New Delhi within the validity period of the cheques but they were dishonoured by State Bank of Patiala, Naveen Market, Kanpur vide their cheque return memorandum dated 16.12.1996 for the reason "insufficient funds" in the account of the petitioner. The petitioner thereupon issued a notice dated 23.12.1996 by registered post A.D. demanding payment of the amount of the cheques as well as other outstanding dues within a period of 15 days from the date of the receipt of the notice of demand. Notice dated 23.12.1996 was duly served and received by the petitioner accused at both office addressed but he failed to make the payment within the stipulated period of 15 days from the receipt of the notice, the petitioner thereby had committed offence under Section 138 of the Act and was liable to be punished.
5. The first ground on which the quashing of the criminal complaint is prayed for by the petitioner is that the criminal complaint is filed beyond the period prescribed by Section 142 of the Act. Section 142 of the Act provides as under:-
"142. Cognizance of Offences.--
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--
a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, t he holder in due course of the cheque;
b) such complaint is made within one month of the date on which the cause-of-action arises under Clause (c) of the proviso to Section 138;
c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138."
6. Clause (1) bars taking of cognizance of an offence under Section 138 of the Act except by the written complaint filed by (1) a payee of the cheque, and (2) the holder in due course of the cheque. Clause (b) of the aforesaid section prescribed the limitation for filing the criminal complaint. The limitation is one month of the date "on which cause of action arises under Clause (c) of the proviso to Section 138". Clause (c) of Section 42 on the other hand specifies the class of the court which would try an offence punishable under Section 138 of the Act. It says that only a court of Metropolitan Magistrate or Judicial Magistrate or above will have jurisdiction to try this offence. Since the criminal complaint could be filed within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138, it will be necessary to reproduce Section 138 of the Act also to determine the limitation.
"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 accounts by an agreement made with the 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 sections hall 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. Clause (c) of the proviso to Section 138 mandates the drawer of the cheque to make the payment of the amount of the cheque to the payee or the holder in due course of the cheque, within 15 days of the receipt of the notice of demand. The period of one month limitation alluded in Clause (b) of Section 142 of the Act, as such, would accrue on the failure of the drawer of the cheque to pay the 'said amount of money' within 15 days of the date of which the notice of demand referred to in Clause (b) of proviso to Section 138 aforementioned is received by him. The expression 'said amount of money' as bare reading of Section 138 would indicate is the amount of the cheque issued by the drawer. (see Suman Sethi v. Ajay K. Churiwal and Anr. ).
8. The contention of the counsel for petitioner is that as per the allegations made in the criminal complaint the notice is dated 23.12.1996 but the receipt of this demand notice by the petitioner did not find mention in the complaint. The demanded amount was to be paid by the petitioner within 15 days, which period expired on 5.1.1997. The criminal complaint, as such, could be filed for prosecution of the petitioner under Section 138 up to 5.2.1997. But in the instant case the criminal complaint was actually filed on 11.2.1997 i.e. much beyond the limitation of 30 days from the date of the receipt of the notice of demand prescribed by Clause (b) of Section 142. For this reason it is contended that the petition should be dismissed as barred by time.
9. Counsel for petitioner has placed reliance on the judgment of the Supreme Court in Shakti Travel & Tours v. State of Bihar and Anr. ; Sridhar M.A. v. Metalloy N. Steel Corporation ; Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. and Ors. .
10. In Dalmiya Cement (supra) the Supreme Court in para 5 of the judgment has observed "to constitute an offence under Section 138 of the Act, the complaint is obliged to prove its ingredients which includes the receipt of the notice by the accused under Clause (b). It is to be kept in mind that it is not the 'giving' of the notice which makes the offence but it is the 'receipt' of the notice by the drawer which gives the cause of action to the complaint to file the complaint within the stipulated period". It was further observed that the thrust in Clause (b) of proviso to 138 of the Act was on the need to make demand. it is only the mode of making such demand which the legislature has prescribed. A payee can send the notice for doing his part. Once it is dispatched his part is over and the next depends on what the sendee does. The Supreme Court also observed that Section 27 of the General Clause Act deals with presumption of service of a letter sent by post. The dispatcher of a notice has, therefore, a right to insist upon and claim the benefits of such a presumption. But the presumption is rebuttable. The sender of the notice may either concede to the stand of the sendee that he did not receive the notice or he could contest the sendee's stand and take risk of proving that he had in fact received the notice.
11. The petitioner in this case does admit the receipt of the notice of demand nor does he give the date on which he had received it. The notice was sent from Delhi to the petitioner at his Kanpur address. As per the verment in the criminal complaint, it was sent by registered A.D. post. It could not have been delivered to the petitioner on the same date on which it was shown to have been written i.e. 23.12.1996. The sender of the notice i.e. respondent, therefore, has a right to lead evidence and prove the date on which the notice was received by the petitioner and further that the amount of the cheque demanded was not paid within 15 days from that date. He has also right to prove by leading evidence that the criminal complaint filed on 11.2.1997 is within one month from the date on which 15 days default in the payment of the amount of cheque in terms of Clause (c) of proviso to Section 138 was committed so the complaint was filed within the limitation period prescribed by Section 142 of the Act.
12. In M/s. Shakti Travel & Tours (supra) there was no mention in the criminal complaint filed under Section 138 of the Act that the notice of the demand had been served on the drawer of the cheques, therefore, it was held that the criminal complaint itself was not maintainable. The present case is distinguishable on facts. In the criminal complaint it has been specifically stated that the notice of demand dated 23.12.1996 was sent by registered A.D. post was duly received by the petitioner at both of his addresses. It is only the date on which it was received by the petitioner, which has not been mentioned. Therefore, the cited judgment is of no help to him.
13. In Sridhar M.A. (supra) the Supreme Court was dealing with the question of service of notice of demand after the full trial and it was held that the notice of demand should not be deemed to have been served as a matter of course but such presumption of due service of the notice of payment which arise, should be accepted in the facts of each case. Considering the facts in that case the Supreme Court held that the appellant was entitled to the benefit of doubt as to whether such service in fact had been effected on the appellant In the instant case the case is yet to go into trial. Parties will get an opportunity to adduce evidence and the sender of the notice can lead evidence to prove that the notice has been received by the petitioner or may prove the receipt of the notice by the petitioner on presumption of due service arising from Section 27 of the General Clauses Act. Such presumption of deemed service will depend upon the evidence which has been adduced. The judgment, therefore, does not advance the argument of the petitioner at this stage. The first ground, therefore, is not tenable at this stage.
14. The second ground is also premature. Section 139 of the Act gives rise to presumption that the cheque issued by the drawer was for discharging of a legal debt or liability. This presumption like other presumptions is rebuttable. Contention of counsel for petitioner is that he was carrying on business of transportation of goods at Kanpur in the name and style of M/s. Crown Cargo and he came into contact with the respondent who was carrying on business in the name and style of M/s. Transworld Cargo & Travels in Delhi. Respondent promised the petitioner to constitute a partnership business with him at Delhi and asked for a loan of Rs. 2.00 lacs which was to be converted into investment in the partnership when it came into existence. Through common friends the petitioner was persuaded to advance the said amount on 01.6.1996. The petitioner issued four post-dated cheques, which are the foundation of the present complaint. After the cheques were delivered the petitioner came to know that the respondent was untrustworthy and unreliable so he decided not to advance any loan to him. The petitioner asked the respondent to return all the post-dated cheques but he did not return them so the petitioner decided not to arrange the amount of the cheque in his bank account at Kanpur. The respondent tried to encash the cheques although the petitioner had refused to advance the loan. All the cheques were post-dated and were issued on the same date. The allegations made in the criminal complaint as to the consideration of these cheques is false. The respondent has not produced any documentary evidence in corroboration of the allegations made in para-2 of the complaint in this behalf. These four cheques were presented for encashment between 17.6.1996 and 29.11.1996 and all of them lastly presented for encashment on 29.11.1996.
15. Contention of the petitioner is unsubstantial. There is no bar to the presentation of the cheques for encashment again and again within the period of six months or the validity of the cheque but once the notice of demand required by Clause (b) of proviso to Section 138 is issued cause of action for filing complaint in accordance with Clause (b) of Section 142 arises and subsequent presentation of the cheques and issuance of fresh demand notice based on its dishonour would not give a fresh cause of action to the payee for filing the criminal complaint. The Supreme Court in Sadanandan Bhadran v. Madhavan Sunil Kumar 1998(2) JCC (SC) 91 observed in para 10 as under:-
"Now, the question is how the apparently conflicting provisions of the At, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that one each presentation of the cheque and its dishonour a fresh right and not cause of action-accrues in his favor. He may, therefore, without taking pre-emptory action in exercise of his such right under Clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But once he gives a notice under Clause (b) of Section 138 he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer, expires.
16. Counsel for petitioner has referred to Shri Taher N. Khambati v. Vinayak Enterprises, Secunderabad, and Ors., 1995 CRI.L.J.560 wherein an appeal against the order of the trial court passed in a complaint under Section 138 of the Act the facts were that the appellant had advanced some money to the respondents and obtained a pronote. It was stipulated that the respondents should pay interest every month. At the same time appellant creditor took blank signed cheques from the respondent with the understanding that the complainant could fill the other columns in the cheque and present it if the respondent committed default in payment of interest. The respondent paid interest for about 8 months and, thereafter, defaulted. The appellant put the date and his own name in the space intended for the date and also mentioned amount of the cheque and presented it for encashment. Even at the time of presentation of the cheque he would not have expected the cheque to be honoured and wanted only an endorsement to be made to enable him to file criminal complaint under Section 138 of the Act. The High Court on these facts held that if this sort of practice was allowed, every creditor would abuse the provisions of Section 138 of the Act by obtaining blank cheques and putting the debtors in the fear of presentation insist on discharge of the debts at any time. It was on these facts and circumstances of the case that it was held that the provisions of Section 138 was not attracted. This judgment, therefore, has its own peculiarity of fact and can lend no assistance to the contentions of the petitioner raised in this petition that too at the preliminary stage. Evidence is yet to be recorded. Counsel for petitioner also referred to Uplanche Mallikarjun and Ors. v. Rat Kanti Vimala and Anr. 1997 CRI.L.J. 4237. It was also a case in which in the criminal complaint it was not mentioned that the cheque was issued in discharge of whole or part of the legal enforceable debt or liability and the court held that in the absence of such an allegation in the criminal complaint under Section 138 of the Act the criminal proceeding was not maintainable and was liable to be quashed. It is also not a case here. The petitioner has mentioned about the legally recoverable debts in discharge of which the four cheques in question were issued by the petitioner. The petitioner disputed the allegations made in the complaint and has set up his own defense claiming that the cheques were without any legally enforceable debt, therefore, the petition was not maintainable. The question cannot be resolved by considering mere claim made by the petitioner. It needed evidence for resolution. The complaint, therefore, cannot be quashed on the bare allegation of the petitioner at this stage.
17. The third ground on which the petitioner wants quashing of the criminal complaint is that the courts in Delhi had no territorial jurisdiction to take cognizance of the offence under Section 138 of the Act in the criminal complaint instituted by the respondent here. It is contended in the petition that the cheques were dishonoured at Kanpur, therefore, the cause of action had arisen at Kanpur and Delhi Court has no jurisdiction. The argument is devoid of any substance. Recently Supreme Court in K. Bhasakaran v. Sankaran Vaidhyan Balan and Anr., 1999 SCC (Crl.) 1284 considered as to what are the various causes of action in a case under Section 138 of the Act to give territorial jurisdiction to a court. In para 11 of the judgment the Supreme Court held as under:
"11. We fail to comprehend as to how the trial court could have found so regarding the jurisdiction question. Under Section 177 of the Code "every offence shall ordinarily be inquired into and tried in a court within whose jurisdiction it was committed". The locality where the Bank (which dishonoured the cheque) is situated cannot be regarded as the sole criterion to determine the place of offence. It must be remembered that offence under Section 138 would not be completed with the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in Clause (c) of the proviso to Section 138 of the Act. It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offences under Section 138 of the Act."
18. It is manifest from the law laid down in the aforementioned judgment that the cause of action for filing a complaint under Section 138 of the Act may also be at a place where the drawer of the cheque resided or the place where the payee resided for the place where either of them carried on business or the place where payment was to be made. The complaint can be filed before the court which has jurisdiction over any of these places. In the cited case a complaint under Section 138 was filed before a Magistrate at Adoor in Pathanamthitta District in Kerala. The accused challenged the territorial jurisdiction of the court of try the case. His contention was that the cheque was dishonoured at the bank of the Branch at Kayamkulam, situated in another District. he also denied the issue of cheque and also receipt of notice of demand. The later two objections were decided against the accused. On the first question the Supreme Court enunciated the law as reproduced above.
19. In Canbank Financial Services Ltd. v. Gitanjali Motors Ltd. and Ors., 1995 Crl.L.J. 1222 the Supreme Court on the question of territorial jurisdiction of the court in criminal proceeding under Section 138 of the Act observed as under:-
"Payment for purposes of the proviso is required to be made to the creditor at his place. In the present case the cheques in question were handed over to the complainant at Delhi. After the service of the notice if debtor had to pay, it had to pay to the creditor at Delhi. Therefore, place of payment will always be important and relevant in such matters. I am supported in this view by a judgment of Division Bench of this Court in R.K. Jain v. State, (1988) 1 Crimes 514. In this case the cheque was given at Delhi but was deposited by the payee in his account at Rajouri (J&K). Prosecution was sought to be launched at Jammu for dishonour of the cheque. It was held that such cheque was given at Delhi. The alleged incident was committed at Delhi and Delhi Courts will have jurisdiction.
The Supreme Court further held that "The place of payment is thus material for purpose of jurisdiction of a court to try an offence under Section 138 of Negotiable Instruments Act".
Again in para 14 the Supreme Court made the following observations:
"14. That as per Section 179 when an act is an offence by reason of anything which has been done and of a consequence which has ensued. The offence may be inquired into or tried by a court within whose legal jurisdiction such thing has been done or such consequence has ensued. Payment of cheque against an account having insufficient funds to meet the liability under the cheque is one act while dishonour of the cheque is a consequence of such an act. Therefore as per Section 179 also the place where the cheque was given or handed over will have jurisdiction and the courts of that place will have jurisdiction to try the offence. Likewise for purposes of Section 178(b) payment of cheque may be one part of an offence and dishonour of the cheque may be another part and, therefore, both places, i.e. place where the cheque was handed over and the place where it was dishonoured will have jurisdiction."
20. It is clear from the reading of the principles of law laid down in this judgment that the place where the payment is to be made is relevant for determining the jurisdiction of the court. It is also clear that the drawer of the cheque on receipt of notice of demand is bound to tender the amount of the cheque to the payee at the place of the payee of the cheque i.e. the complainant. It is on the basis of well known principle of civil law that a debtor should seek the creditor.
21. In M.M. Malik and Ors. v. Prem Kumar Goel and Anr., 1991 (2) CC Cases 157 (HC) it was held in para 7 as under:
"Dishonouring of the cheque was only a part of cause of action and the offence was completed only when the petitioner-Company failed to discharge this liability to creditors (the complainant herein). For discharging the debt, the petitioners had to find out their creditors and since the creditor had its office at Pehowa, the offence was completed at that place and in this situation, the court at Kurukshetra had the territorial jurisdiction to try the matter. No ground for quashing the impugned complaint and the subsequent proceedings is made out."
22. The facts of the present case when examined in the light of the principles of law which have been laid down in the aforementioned judgments it had to be held that the part of cause of action has arisen to the respondent at Delhi where he was residing since in response to the statutory notice of demand as per Section 138 the drawer of the cheque was to tender the amount of the cheque to the respondent at the place where he was available. In the present case the respondent was residing at Delhi. The petitioner No. 2 was obliged to tender the amount of the cheque and meet and demand raised in the notice of demand at Delhi. Therefore, part of cause of action has arisen at Delhi. The court at Delhi has territorial jurisdiction to entertain the complaint under Section 138 of the Act, take cognizance and also try the petitioner.
23. As such the courts at Delhi where the petitioner creditors resided and carried on his business had jurisdiction to entertain this petition. It is also pertinent to note that in the petition it was alleged by the petitioner that the cheques were issued as advance of the loan which was to the treated as an investment in the partnership business which was to be established at Delhi. Therefore, the payment was intended to be received at Delhi. For this added reason it can be safely held that part of the cause of action had also accorded in Delhi.
24. Counsel for petitioner referred to the judgment of this court in Canbank Financial Services Ltd. v. Gitanjali Motors Ltd. and Ors. 1995 CRI.L.J. 1222 where it was held that places where the cheque was handed over and the place where it was dishonoured have jurisdiction. He also referred to The Hukumchand Insurance Co. Ltd. v. The Bank of Baroda and Ors. where it was held that in a contract of guarantee, there must always be three parties in contemplation; a principal debtor (whose liability may be actual or prospective) a creditor, and a third party who, in consideration of some act or promise on the part of the creditor, promise on the part of the creditor, promise to discharge the debtor's liability. It cannot be appreciated how this judgment advances the case of the petitioner that Delhi Court would not have territorial jurisdiction. Similarly, another judgment referred to by counsel for petitioner H. Mohamed Khan (deceased by L.Rs) and Ors. v. Andhra Bank Ltd. and Ors. has laid down that the contract of guarantee express participation or implied assent among the three parties necessary. Counsel for petitioner also relied upon State of Maharashtra v. Dr. M.N. Kaul (dead) by his legal representatives and Anr. where it was held that in a case of contract of guarantee the guarantor cannot be made liable beyond the term of his encashment. It is not understood how these two judgments advance the argument that Delhi Court do not have jurisdiction to try the case. The court is bound by the judgment of the Supreme Court in K. Bhaskaran (supra) and Canbank Financial Services Ltd. (supra) and it is held that the courts in Delhi have jurisdiction to try the criminal complaint. The argument to the contrary is repelled.
25. The last ground pleaded in the petition is that the notice of demand is defective and invalid since it has asked for payment of the amount more than the amount of the cheques. Relevant extract of the notice of demand dated 23.12.1996, copy of which has been filed as annexure P4 to the petition, is as under:-
"2. In course of business you issued certain cheques in the name of our clients, particularly, the cheques bearing Nos. 978120, 978127, 978128 and 978129 dated 12.6.1996, 23.7.1996, 27.11.1996 and 23.7.1996 all drawn on State Bank of Patiala, Naveen Market, Kanpur for Rs. 1,00,000/-, Rs. 34,000/-, Rs. 34,000/- and Rs. 32,000/-, respectively. All the above said cheques were duly deposited by our clients with their bankers, Oriental Bank of Commerce, Old Rajindra Nagar, New Delhi. However, the said cheques were returned by your bankers State Bank of Patiala, Naveen Market, Kanpur vide their cheque Return Memo for the reason "insufficient Funds". The returned cheques and the said Memo were forwarded to our clients by their bankers 16.12.1996. You have in the circumstances committed offence under the Negotiable Instruments Act.
3. That besides the above cheques, you are also a defaulter in payment of your other dues as well.
4. By this notice we call upon you to remit the entire outstanding dues including the amount of the above said cheques within a period of 15 days from the receipt of this notice, failing which our clients shall be at liberty to institute legal proceedings, both civil and criminal, which may be available to our client sunder the law including proceedings under the Negotiable Instrument Act, against you, at your costs and consequences for the recovery of the outstanding dues."
26. The notice has to be construed strictly since it is one of the constituent of the criminal offence under Section 138 of the Act. But it has to be construed keeping in mind that it was addressed to the petitioner, who is not stranger to the transaction, but he is the drawer of the four cheques which were dishonoured by his banker for insufficiency of funds. The respondent indeed has demanded some other amount which is outstanding and payable by the petitioner to respondent but it has specifically demanded the amount of the dishonoured cheques within a period of 15 days. The notice has demanded the amount of the cheque which was dishonoured for insufficiency of funds in the account of the petitioner drawer of the cheque and the petitioner by making the payment of the amount of the cheque could have absolved himself of the criminal liability under Section 138 of the Act. In Suman Sethi v. Ajay K. Churiwal and Anr. a similar question about validity of the notice of demand was raised by the accused. In that case in addition to the amount of the cheque the creditor had demanded charges of Rs. 1500/- spent on the cheque on its presentation and also Rs. 340/- as notice charges within the period of 15 days from the notice thereof failing which he had warned of taking necessary legal steps holding the drawer of the cheque liable for all costs and consequences thereof. The Supreme Court has held as under:-
"In the notice in question the "said amount", i.e. the cheque amount has been clearly stated. Respondent No. 1 had claimed in addition to the cheque amount, incidental charges and notice charge. These two amounts are severable. In the notice it was clearly stated that failure to comply with the demand necessary legal steps will be taken up. If respondent No. 1 had paid the cheque amount he would have been absolved from the criminal liability under Section 138. Regarding other claims, a civil suit would be necessary."
27. In Central Bank of India v. Saxons Farms while dealing with provision of Section 138 of the Act the Supreme Court has held that the object of the notice of demand was to give chance to the drawer of the cheque to rectify his omission. It was further held that though in the notice of demand for compensation, interest etc., is also made but the drawer will be 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 aware within 15 days from the date of receipt of the notice or before complaint is filed. In another judgment United Credit Ltd., Calcutta v. Agro Sales India and Ors. IV (2000) CCR 50(SC) the Supreme Court again considered a notice of demand in which not only the amount covered by the cheque but also some other amount towards interest and cost was demanded by the complainant. The Supreme Court following the law laid down in Suman Sethi v. Ajay Kr. Churiwal and Anr. (supra) held that the notice of demand was valid and in conformity with requirement of Section 138 of the Act. The notice of demand dated 23.12.1996 relied upon by the petitioner does not suffer from any legal infirmity.
28. Counsel for petitioner, however, contended that in Suman Sethi v. Ajay Kr. Churiwal and Anr. (supra) the Supreme Court has laid down that the notice of demand cannot be faulted if in addition to the cheque amount any other sum by way of interest cost etc. was separately indicated, but in the instant case the amount of the cheque has not been separately stated. The Supreme Court had held that if in the notice an omnibus demand was made without specifying what was due under the dishonoured cheques the notice would fail to meet the legal requirement and might be regarded as bad. But in the instant case as would be clear from the averment in para-2 and para-4 of the notice dated 23.12.1996 read conjointly that the amount of the cheque which was demanded by this notice was specified. Therefore, argument of the counsel for petitioner has no merit. Counsel for petitioner also sought support to his argument from the judgment of the Calcutta High Court in Gopa Debi Ozha v. Sujit Paul 1995 CRI.L.J.3412 wherein it was laid down that if bigger amount or smaller amount than the cheque amount was mentioned in the notice, it would not be possible for the drawer of the cheque to know as to how much amount is to be paid and that made the demand notice insufficient and vague, so it was illegal. Even the fact of the present case are distinguishable. The amount of cheques demanded in the notice is indicated. So, the judgment does not come to the rescue of the petitioner. Counsel for petitioner referred to A.C. Raj, Inchivila, Thottathu Veedu, Prasala v. M. Rajan, Ezhakudivila Veedu and Anr. 1997 CRI.L.J.1939 wherein also it was held that the amount covered by the cheque was not mentioned in the demand notice and the amount together with interest without specifying the rate of interest and the amount of interest was demanded by the notice, therefore, the notice could not be considered to be the notice contemplated by Section 138(b) and the accused was entitled to acquittal for want of proper notice. The facts are clearly distinguishable and the law laid down is not applicable on the fact of this case.
29. The result of the above discussion is that the petition has no merit. There is no illegality or impropriety in the order warranting interference by this court in exercise of its inherent powers vested by Section 482 of the Cr.P.C. The petition, therefore, is accordingly dismissed in limini.