The accused in C.C No.65 of 2009 on the file of the learned Judicial Magistrate, Gudiyattam has come forward with the present petition under Section 482 Cr.P.C. to quash the above said criminal proceedings instituted against him.
2.The submissions made by Mr.Durai Gunasekaran, learned counsel for the petitioner were heard. The materials placed before this Court in the form of typed set of papers were also perused.
3.The case in C.C.No.65 of 2009 was instituted on the file of the learned Judicial Magistrate, Gudiyattam by the respondent herein following the private complaint procedure for prosecuting the petitioner for an alleged offence punishable under Section 138 of the Negotiable Instruments Act. It is not in dispute that the case was instituted after issuing a notice demanding payment and following the procedure stipulated under Section 138 of the Negotiable Instruments Act. The present petition has been filed on the sole ground that the statutory notice issued prior to the filing of the complaint does not fulfil the requirements of the above said Section.
4.According to the learned counsel for the petitioner, there was no clear cut demand for payment of the cheque amount and hence, the notice falls short of the legal requirement for instituting a criminal case for an offence punishable under Section 138 of the Negotiable Instruments Act. In support of his contention, the learned counsel for the petitioner relied on the judgement of the Hon'ble Supreme Court reported in AIR 2000 SUPREME COURT 828 (SUMAN SETHI vs. AJAY K.CHURIWAL AND ANOTHER).
5.This Court wonders how the learned counsel for the petitioner has chosen to rely on the said judgement of the Hon'ble Supreme Court in support of his contention as the observations made therein are enough to reject the contention made by the petitioner herein. The relevant observation are found in paragraph 8 of the said judgement which reads as follows:
"8.It is 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" 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 up 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 anomnibus demand is made without specifying what was due under the dishonoured cheque, notice might well fail to meet the legal requirement and may be regarded as bad."
6.The Hon'ble Supreme Court expressed the view that the notice should clearly indicate what is the cheque amount and if it is done, then the mere fact that the notice also demanded payment of interest and other incidental charges will be of no consequence. What was held to be falling short of the requirement is making a consolidated demand without spilt up particulars showing the cheque amount separately. In this case, the statutory notice makes it clear that the cheque amount was Rs.25,000/-. In the concluding paragraph of the notice a demand has been made to make payment of the cheque amount together with interest at the rate of 18% per annum and collection charges. The interest claimed at a specified rate and collection charges not indicated in figure can be segregated from the cheque amount. What is obvious is that the respondent has made it clear that the cheque amount was Rs.25,000/- and therefore, the petitioner cannot succeed in his attempt to get the criminal proceedings quashed on the ground that the notice falls short of the legal requirement. The petition deserves to be dismissed even without notice to the opposite party.
7.Accordingly, the Criminal Original Petition is dismissed. Consequently, connected miscellaneous petitions are dismissed.
sri To The Judicial Magistrate Gudiyattam