Karnataka High Court
Nityanand vs Jamuna Prakash on 29 October, 2001
Equivalent citations: 2002(1)ALT(CRI)381, ILR2001KAR5469, 2002(1)KARLJ448
Author: G. Patribasavan Goud
Bench: G. Patribasavan Goud
ORDER
The Court
1. The petitioner is facing prosecution for an offence under Section 138 of the Negotiable Instruments Act, 1881 ('N.I. Act' for short), on the complaint filed under Section 200 of the Criminal Procedure Code by the respondent-complainant. The learned Magistrate has taken cognizance, has recorded sworn statement of the complainant, has found sufficient ground to proceed, and has directed issuing of process. The petitioner is aggrieved with the same.
2. The case concerns two cheques allegedly issued by the petitioner-accused in favour of the respondent-complainant, both dated 5-10-1999, one for Rs. 1,00,000/- and another for Rs. 50,000/-, both drawn on Syndicate Bank, Gavipuram Extension Branch, Bangalore. On cheques being dishonoured on presentation for encashment, the respondent-complainant got issued a notice dated 26-10-1999 making a demand in writing as contemplated under Clause (b) of the proviso to Section 138 of the N.I. Act. No payment of the amounts covered by the cheques having been made within fifteen days of receipt of notice, complaint came to be filed.
3. Sri Ramesh Chandra, learned Counsel for the petitioner-accused, herein, has two submissions to make. The first one is that, these cheques had not been issued at all in favour of the respondent-complainant, that the petitioner-accused had no transaction at all with the respondent-complainant, and that, he had delivered two cheques to the complainant's brother-in-law one Prasad, who had promised to lend money to the petitioner-accused, but did not do so. This is the first submission. The second submission is that, non-mentioning of the cheque numbers in the notice of demand issued under Clause (b) of the proviso to Section 138 of the N.I. Act is fatal, and the very institution of the complaint gets vitiated.
4. So far as the first contention is concerned, when it is the case of the respondent-complainant that the petitioner-accused had borrowed money from him, and in that regard, issued cheques concerned, and when it is the contention of the petitioner-accused that he had neither borrowed money from the complainant, nor had issued the cheques to the complainant, but that he delivered two cheques to one Prasad on the said Prasad promising to lend the money to the petitioner-accused, then, in my opinion, this is a matter to be appreciated on evidence being led in this regard in course of trial. It is not possible to pronounce upon the correctness of either of the two versions in this proceeding under Section 482 of the Criminal Procedure Code. Since these are disputed questions of fact, the correctness of which can be pronounced upon at the end of the trial by the learned Magistrate.
5. So far as the second contention is concerned, the question as to whether the non-mentioning of cheque number in the notice of demand issued in pursuance of Clause (b) of the proviso to Section 138 of the N.I. Act would be fatal to the very case instituted subsequently, would depend upon the facts and circumstances of each case. No doubt, dishonouring of a cheque would constitute of an offence under Section 138 of the N.I. Act, but, Clauses (a) to (c) of the proviso to Section 138 of the N.I. Act also cannot be lost sight of. In many cases, there could be a bona fide mistake on the part of the drawer of the cheque in calculating the amount due to his credit in his account with the bank concerned. In any number of cases, a cheque might have been given bona fide believing that much of the amount is there to the credit of the drawer of the cheque in his account with the bank. It is for that reason that an opportunity is to be provided to him even after dishonouring of the cheque, by issuing a notice to him under Clause (b) of the proviso to Section 138 of the N.I. Act. It is on receipt of such a notice that he would immediately come to know that the cheque that he has issued has been dishonoured. In that event, he would immediately arrange for payment of the amount covered by the cheque within fifteen days of the receipt of the notice. Any bona fide mistake in calculating the amount to his credit in the bank thus would have an opportunity of being rectified on such notice being received by the drawer of the cheque. By making prompt payment within fifteen days, he would totally avoid facing any prosecution for an offence under Section 138 of the N.I. Act, because, by such payment, he would have totally avoided committing the offence punishable under Section 138 of the N.I. Act. It is, therefore, necessary for him, when he receives a notice under Clause (b) of the proviso to Section 138 of the N.I. Act, to know as to which cheque issued by him has been dishonoured, and therefore as to payment of what amount covered by the concerned cheque should he make to avoid prosecution. It is therefore that necessary particulars need to be mentioned in the said notice. What needs to be mentioned in such a notice cannot be viewed in a hypertechnical manner. The purpose of giving the notice is to bring it to the notice of the drawer of the cheque that the cheque he has issued has been dishonoured and to put him on guard with regard to making of payment covered by that cheque within fifteen days so as to avoid prosecution. Viewed in this context, whether or not non-mentioning of cheque number when all other necessary particulars had been given in the notice, would be fatal to the case of the complainant, should depend upon the facts and circumstances of each case. For example, if there is only one incidence of issuing a cheque between the parties, then, if all other necessary particulars are furnished in the notice, the mere fact that cheque number is not mentioned would not be fatal. Even in a case like the present one wherein the accused totally denies having had any transaction with the complainant, and denies having issued the cheques concerned at all, it hardly matters whether cheque numbers are mentioned or not. But, there could be a case wherein the drawer of a particular cheque that has been dishonoured, would also have issued several other cheques in favour of the complainant concerned. In that event, if the cheque number is not mentioned in the notice of demand, then, the accused drawer would not be in a position to know as to in respect of which particular cheque among several cheques that he has issued that he should make payment within fifteen days to avoid prosecution. It is in such circumstances that mentioning of cheque number would be essential. If in a given case, depending upon the facts and circumstances of that case, it is to be found that the absence of cheque number in the demand notice made it impossible for the drawer of the cheque to ascertain which particular cheque that the payee was speaking of, and therefore was not possible for the drawer of the cheque to arrange for the payment of the amount within fifteen days, then, it has to be held that, there was no proper demand within the meaning of Clause (b) of the proviso to Section 138 of the N.I. Act.
6. Having said as above, so far as present case is concerned, where the petitioner-accused totally denies having had any transaction with the respondent-complainant, and also denies having issued the cheques concerned in favour of the respondent-complainant, it hardly matters whether cheque numbers are mentioned or not. Having regard to the defence stand, viz., total denial of the transaction and very issuing of the cheques, it hardly matters whether cheque numbers bad or had not been furnished in the notice issued under Clause (b) of the proviso to Section 138 of the Negotiable Instruments Act. In the particular factual context of this case, non-mentioning of the cheque number in the notice issued under Clause (b) of the proviso to Section 138 of the N.I. Act, therefore, is of no consequence.
7. Petition dismissed, with liberty to the petitioner to urge all other contentions open to him before the Trial Court.