1. The present application u/s.482 of the Code of Criminal Procedure has been preferred by the applicant herein – original accused to quash and set aside the impugned complaint being Criminal Case No.1517 of 2008 pending in the Court of learned Metropolitan Magistrate, Court No.15, Ahmedabad filed by respondent No.1 herein – original complainant for the offence punishable u/s.138 of the Negotiable Instruments Act,1881 (hereinafter referred to as “NI Act”).
2. Respondent No.1 herein – original complainant has filed the impugned complaint/Criminal Case against the applicant herein – original accused in the Court of learned Metropolitan Magistrate, Ahmedabad for the offence punishable u/s.138 of the Negotiable Instruments Act for dishonour of cheque No.SA/07-287361 dated 20/06/2008 for an amount of Rs.4,25,000/-. It is averred in the said complaint that the said cheque was dishonoured by the Bank with an endorsement “FUNDS INSUFFICIENT” and thereafter, the applicant herein – original accused was served with the statutory notice dated 30/06/2008 as required u/s.138 of the Negotiable Instruments Act and despite the service of the same, cheque amount has not been paid and, therefore, it is alleged that the applicant herein has committed an offence punishable u/s.138 of the Negotiable Instruments Act. That in the said complaint, learned Magistrate has directed to issue summons against the applicant for the offence punishable u/s.138 of the Negotiable Instruments Act. Being aggrieved by and dissatisfied with the impugned complaint/criminal case as well as the order passed by learned Magistrate issuing summons against the applicant herein for the offence punishable u/s.138 of the Negotiable Instruments Act, the applicant herein – original accused has preferred the present application u/s.482 of the Code of Criminal Procedure.
3. Mr.N.A.Shaikh, learned advocate appearing on behalf of the applicant herein- original accused has submitted that the Notice dated 30/06/2008 cannot be said to be a Notice of Demand as per proviso (b) of Section 138 of the Negotiable Instruments Act in as much as in the said Notice, there was no specific demand of cheque amount. It is submitted that in the statutory Notice as contemplated under proviso (b) of Section 138 of the NI Act, there must be a demand for the cheque amount. It is submitted that as held by Hon'ble Supreme Court in the case of Suman Sethi V/s. Ajay K. Churiwal and another reported in AIR 2000 SC 828, if no such demand is made, the notice would fall short of its legal requirement. Therefore, it is requested to allow the present application and to quash and set aside the impugned complaint/Criminal Case.
4. Mr.N.A.Shaikh, learned advocate appearing on behalf of the applicant herein has further submitted that in view of the subsequent development and selling the truck for which the loan was taken, there was no legal debt and liability for an amount of Rs.4,25,000/- existing on the drawer of the cheque dated 20/06/2008. As such initially when the loan was advanced, post dated blank cheques for installments were obtained and despite the fact that truck, for which the loan was advanced, was sold, the complainant misused the cheque and filled the cheque amount and deposited the same, though at the relevant time there was no such liability for an amount of Rs.4,25,000/-. Therefore, relying upon the decisions of this Court rendered in the case of Arvind Maneklal Tailor V/s. State of Gujarat and another reported in 2000(3) GLH 442 as well as in the case of Bharatbhai K. Patel V/s.
C.L.Verma (Since Decd.), through P.O.A. Surjit Singh Macker & Anr. reported in 2002(2) GLR 1713, it is requested to allow the present application.
5. Mr.N.A.Shaikh, learned advocate appearing on behalf of the applicant herein – original accused has vehemently submitted that even in the affidavit-in-reply filed in the present application, the complainant has come out altogether with a difference case, which was not the case in the complaint as well as in the statutory notice, that on 20/06/2008 the custody of the truck was returned to the applicant and on that, cheque for Rs.4,25,000/- was given to the complainant. It is submitted that this is not only afterthought but dishonest attempt on the part of the complainant. By making above submissions and relying upon above decisions, it is requested to allow the present application.
6. Mr.Hardik Dave, learned advocate appearing on behalf of respondent No.1 herein – original complainant has tried to oppose the present application. It is submitted that in the complaint, there is specific reference to the cheque number, which has been dishonoured and in the statutory notice dated 30/06/2008, the applicant herein – original accused was called upon to make payment of the aforesaid cheque number. Therefore, it is submitted that there is sufficient compliance of the statutory notice as provided under proviso (b) of Section 138 of the Negotiable Instruments Act.
7. Now so far as other contentions made by Mr.Shaikh, learned advocate appearing on behalf of the applicant herein – original accused are concerned, Mr.Hardik Dave, learned advocate appearing on behalf of respondent No.1 herein – original complainant has submitted that the aforesaid question of facts are required to be considered at the time of trial by leading the evidence and it is submitted that on the aforesaid grounds, the impugned complaint/ Criminal Case is not required to be quashed and set aside.
8. Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of respondent-State has requested to pass an appropriate order in the facts and circumstances of the case.
9. Heard learned advocates appearing on behalf of the respective parties at length and considered and gone through the entire statutory notice dated 30/06/2008. It is to be noted that in the statutory notice dated 30/06/2008 as such nothing has been mentioned with respect to cheque amount. Only cheque number has been given without giving further particular of the cheque amount and subsequently in subsequent para, the accused is called upon to make payment of cheque amount, which is not mentioned in the complaint. Therefore, short question which is posed for consideration of this Court is as to Whether when in the statutory notice there is no reference to the cheque amount at all and only cheque number is given, can it be said that the said notice is inconsonance with proviso (b) of Section 138 of the Negotiable Instruments Act,1881? Can it be said that in such circumstances, such a Notice is as per legal requirements as provided under Section 138 proviso (b) of the Negotiable Instruments Act. As such identical question came to be considered by Hon'ble Supreme Court in the case of Suman Sheti (supra) and in para-8, the Hon'ble Supreme Court has observed as under:
“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 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 anomnibus demand is made without specifying what was due under the dishonored cheque, notice might well fail to meet the legal requirement and may be regarded as bad.”
At this stage, Proviso (b) of Section 138 of the Negotiable Instruments Act is required to be referred to, which reads as under:
“138(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 thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and”
As per proviso (b) of Section 138 to the Negotiable Instruments Act, payee or the holder in due course of the cheque, as the case may be, is required to make demand for the payment of the said amount of money (cheque which has been dishonoured) by giving a notice in writing to the drawer of the cheque within stipulated time as mentioned in the said proviso.
As per proviso (c) of Section 138 to the Negotiable Instruments Act, if despite the service of notice, as per Section 138 proviso (b) of the Negotiable Instruments Act, by which, the concerned person was called upon to make payment of cheque amount, fails to make payment of 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, it can be said that the said person has committed an offence punishable u/s.138 of the Negotiable Instruments Act,1881. As observed by Hon'ble Supreme Court in the aforesaid decision, the object of the Notice is to give chance to the drawer of the cheque to rectify its omission and make payment of the cheque amount within stipulated time as provided u/s.138 of the Negotiable Instruments Act. Therefore, such a person is to be informed by notice to make the payment with respect to cheque amount.
10. As observed by Hon'ble Supreme Court in the case of Suman Sethi (supra), if, however, in the notice anomnibus demand is made without specifying what is due under the dishonoured cheque, such notice fails to meet the legal requirement and be regarded as bad. Under the circumstances, considering the statutory notice dated 30/06/2008 as there is no specific demand of cheque amount and/or there is no mention of the cheque amount in the statutory notice, the statutory notice which is served upon the applicant is bad and it fails to meet the legal requirement as provided u/s.138 of the Negotiable Instruments Act. Under the circumstances, the impugned complaint on the basis of such statutory notice cannot be sustained and the same deserves to be quashed and set aside. In view of the above, this Court has not gone to the other contentions canvassed by learned advocates appearing on behalf of the respective parties as impugned complaint/Criminal Case is required to be quashed and set aside on the aforesaid ground alone.
11. In view of the above and for the reasons stated hereinabove, the present application is allowed. The impugned complaint being Criminal Case No.1517 of 2008 pending in the Court of learned Metropolitan Magistrate, Court No.15, Ahmedabad filed by respondent No.1 herein – original complainant for the offence punishable u/s.138 of the Negotiable Instruments Act,1881 as well as the order passed by learned Magistrate directing to issue summons against the applicant herein – original accused are hereby quashed and set aside on the aforesaid ground only. Rule is made absolute accordingly.
[M.R.SHAH,J] *dipti