Punjab-Haryana High Court
Rahul Jain And Anr. vs Alstom Ltd. on 6 August, 2002
Equivalent citations: [2003]115COMPCAS475(P&H)
Author: R.C. Kathuria
Bench: R.C. Kathuria
JUDGMENT R.C. Kathuria, J.
1. The petitioners seek quashing of a complaint dated March 1, 2001 (annexure P1) filed by Alston Ltd. through R. D. Pandey, an authorised attorney, the respondent-complainant against the petitioners under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act") and all consequential proceedings taken therein.
2. The complaint-company had filed a complaint dated March 1, 2001, in the Court of the Chief Judicial Magistrate, Chandigarh under Section 138 of the Act on the allegation that the petitioners had issued a post-dated cheque No. 723509 dated December 11, 2000, for Rs. 50,988 drawn on Canara Bank, Hisar in favour of the complainant. The said cheque was presented to the aforesaid bank for encashment which was dishonoured vide memo dated January 3, 2001, with the remarks "payment stopped by drawer". Thereafter, a notice dated January 19, 2001, was sent to the petitioners through registered post as well as UPC on January 22, 2001. The petitioners failed to make the payment, therefore, the complaint was filed in court. Aggrieved by the filing of the complaint, the present petition has been filed on the allegation that though the complainant, had made reference to the cheque for the amount of Rs. 50,988 in the complaint in the notice served upon the petitioners the claim had been made for an amount of Rs. 51,530. The legal notice dated January 19, 2001 (annexure P2) being illegal, the complaint deserves to be quashed.
3. Notice of the petition was given to the respondent who has contested the stand taken by the petitioners in the reply filed by them.
4. I have heard counsel for the parties at length.
5. In order to appreciate the stand taken on behalf of the petitioners, reference needs to be made to the notice dated January 19, 2001, placed on record, the relevant portion which has bearing on the controversy, reads as under :
"We regret to bring to your notice that cheque detailed below, which was issued has been returned unpaid by your banker with the following:
Payment stopped by the drawer Cheque No. Date Drawn on Amount 723509 11-12-2000 Canara Bank, Hisar Rs. 51,530 (including bank charges) You must be aware that as per recent amendment to the Negotiable Instruments Act, under Sections 138 to 142 of additional Chapter XVII, any person, whose cheque (issued for discharge in whole or part of any debt or other liability) bounces due to lack of sufficient funds, shall be deemed to have committed an offence and such person, in addition to being liable for a civil suit, can also be made criminally liable. You are, therefore, advised to make payment against the above dishonoured cheque amount by a bank draft within 15 days of receipt of this notice, otherwise we shall be left with no option, but to indict legal proceedings against you under above mentioned additional Chapter of the Negotiable Instruments Act, 1881. Please also note that you will also be liable to pay interest at 18 per cent. per annum on the dishonoured cheque amount, if payment is not made within the aforesaid period."
6. The respondent-complainant has also placed on record debit note, annexure R ; relevant portion of the same reads as follows :
"Please note that your account has been debited on account of cheque returned duly unpaid by your banker with the following remarks :
Payment stopped by the drawer.
Details of dishonoured cheque(s) :
Receipt No. Cheque No. Date Amount Bank charges Total 17535 723509 11-12-2000 50,988.00 542.61 51,530.61 51,530.61 Rupees fifty-one thousand five hundred thirty and paise sixty-one only."
7. The above debit note was issued on January 15, 2001, addressed to the petitioners. In this debit note, it had been clearly intimated to the petitioners that payment of the cheque had been stopped by them and the total amount includes Rs. 50,988.00 plus bank charges of Rs. 542.61. In this manner, the total amount comes to Rs. 51,530.61. In the notice dated January 19, 2001, the amount of Rs. 51,530 had been mentioned for which demand had been put by the respondent from the petitioners but it is clear from the contents of the notice that it had been intimated by the respondent that it includes bank charges.
8. Counsel for the petitioners has stated that this notice has to be read as a whole and no necessary details had been furnished on behalf of the complainant, R. D. Pandey only indicating that bank charges of Rs. 542.61 were included in the total amount of Rs. 51,530.61 would not come to the rescue of the respondent and validate the notice in question. Reliance was placed in support of the stand taken on the observations made in several cases noticed hereinafter. In Raj v. Rajan [1997] 2 RCR 369, it was laid down that the notice of demand claiming higher or lesser amount makes the notice insufficient and illegal. In Prasanta Agarwal v. S. K. Roy [1997] 2 RCR 504, it was observed that where the notice contains a demand for payment exceeding the amount of the cheque, the complaint under Sections 138 and 142 of the Act is not maintainable. In United Credit Ltd. v. Agro Sales India [1999] 3 CCJ 481, the facts were that notice of demand contained not only the amount of the dishonoured cheque but other amount towards the cost of the notice also. It was held that the notice was invalid and the order dismissing the complaint was upheld. In Gopal Debi Ozha v. Sujit Paul [1997] 2 CCJ 134, the cheque amount was Rs. 5,79,000, while in the notice sent to the accused a demand for Rs. 6,50,000 was made. It was held that the notice in question was vague and illegal and no cognizance could be taken of such notice.
9. In Suman Sethi v. Ajay K, Churiwal [2000] 100 Comp Cas 444 (SC); [2000] 1 CCJ 363, the facts were that by means of notice the accused were called upon to pay the amount of Rs. 20 lakhs along with incidental charges of Rs. 1,500 spent on presentation of the cheque and Rs. 340 paid as notice charges within a period of fifteen days from the date of receipt thereof failing which it was intimated to the accused that necessary legal action would be taken against them holding them liable for all pros and consequences thereof. Taking notice of this fact, it was observed that in the notice in question the "said amount", i.e., the cheque amount had been clearly stated and in addition to the cheque amount incidental charges and notice charges had been claimed. These two amounts being severable in the notice itself, if accused-respondent No. 1 had paid the cheque amount he would have been absolved from the criminal liability under Section 138 and regarding other claims, a civil suit would be necessary. On that basis it was found that there was no merit in the petition. It would be appropriate to notice the discussion contained and the consequences of the words "said amount" of money so mentioned in Clauses (b) and (c) in Section 138 of the Act. It was pertinently observed in paras 5 to 10 of the judgment as under (pages 446 to 448 of 100 Comp Cas) :
"5. We have to ascertain the meaning of the words 'said amount of money' occurring in Clauses (b) and (c) to the proviso to Section 138. Reading the section as a whole we have no hesitation to hold that the above expression refers to the words 'payment of any amount of money' occurring in main Section 138 i.e., the cheque amount. So in the notice under Clause (b) to the proviso, demand has to be made for the cheque amount. Dr. Dhawan, learned senior counsel has urged that Section 138 being a penal provision has to be construed strictly. We may refer to the decision of this court in M. Narayanan Nambiar v. State of Kerala, AIR 1963 SC 1116 ; [1963] 2 (Supp.) SCR 724. This court considered the rule of construction of a penal provision and quoted with approval the following passage of the decision of the Judicial Committee in Dyke v. Elliott the Gauntlet [1872] LR 4 AC 184. The passage runs as follows (page 1118) ;
'No doubt all penal statutes are to be construed strictly that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included if thought of. On the other hand, the person charged has a right to say that the thing charged although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common sense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument.'
6. 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 the notice under Clause (b) to the proviso, the demand has to be made for the cheque amount. According to Dr. Dhawan, the notice of demand should not contain anything more or less than what is due under the cheque.
7. It is a well settled principle of law that the notice has to be read as a whole. In the notice, a demand has to be made for the 'said amount', i.e., cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement, where in addition to '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 break up 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 regarded as bad.
This court had occasion to deal with Section 138 of the Act in Central Bank of India v. Saxons Farms [1999] 98 Comp Cas 712 (SC); [1999] 8 JT SC 58 and held that the object of the notice is to give a chance to the drawer of the cheque to rectify his omission. Though in the notice demand for compensation, interest, cost, etc., is also made the drawer will be absolved from his liability under Section 138 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.
9. In Section 138 the Legislature clearly stated that for the dishonoured cheque the drawer shall be liable for conviction if the demand is not met within 15 days of the receipt of notice but this is without prejudice to any other provisions of the Act. If the cheque amount is paid within the above period or before the complaint is filed the legal liability under Section 138 will cease and for recovery of other demands as compensation, costs, interest, etc., a civil proceeding will lie. Therefore, if in a notice any other sum is indicated in addition to the 'said amount' the notice cannot be faulted, as stated above.
10. Drawing our attention to Section 139 of the Act, Dr. Dhawan has urged that in the notice in addition to 'said amount' other demands are made the presumption as contemplated under Section 138 would operate. We are unable to accept the submission of the learned senior counsel as Section 139 has to be read with Section 138 and reading both the sections together it would appear that presumption would arise only in respect of the 'said amount'."
10. Counsel for the petitioners-accused has submitted that in the notice itself the amount of bank charges is not severable, therefore, the notice is invalid in terms of the observations made in the above-mentioned cases. The facts of the present case are clearly distinguishable with the facts of the above-mentioned cases.
As already stated in the debit note dated January 15, 2001 (annexure R1), it was clearly intimated to the petitioners by the respondent that apart from the amount of Rs. 50,988, bank charges to the extent of Rs. 542.61 were also claimed and this is how the total amount of Rs. 51,530.61 was arrived at. It is not the case of the petitioners that they had not received the debit note annexure R1 from the respondent. It is thereafter that the notice dated January 19, 2001, was sent which clearly indicated that the amount included the bank charges. Thus, the amount of the cheque of Rs. 50,988 was fully known to the petitioners as intimated in the debit note to them and, therefore, in the given circumstances of the case it cannot be said that vague claim had been put by the respondent. I find no illegality in the notice served upon the petitioners.
For the aforesaid reasons, there is no merit in the petition and the same is consequently dismissed.