Bisham Jyoti Sharma vs Gopal Sharma

S.K. Gupta, J.—By means of this revision, the accused-petitioner has canvassed the correctness of the order dated 4.12.2000 propounded

by Chief Judicial Magistrate, Kathua, in compliant/case No. 81/1998, whereby prayer made in the application preferred by the petitioner to drop

the proceedings on the ground that notice of demand served upon the accused by the complainant is vague and defective and, therefore, does not

occasion any cause of action to prefer the complaint by the complainant, has been declined.

Facts relevant for the disposal of this revision in resume may be noticed. The petitioner issued a cheque in favour of the respondent for a sum of

Rs. 13.000 and when presented for the realization of the said amount to the concerned Bank, the cheque was returned uncashed on 12.9.1998

with an endorsement as ""insufficient funds"" as per the memo issued by the Bank. It is also stated that the complainant had to receive a sum of Rs.

69,800 from the accused and the cheque issued for Rs. 13,000 formed a part of the aforesaid amount. A notice was served upon the drawer of

the cheque within15 days of the receipt of the information by the holder in due course from the Bank, regarding return of the cheque as indicated

on account of ""insufficient funds"" in making demand for the payment of an amount of Rs. 69,800 besides stating the cheque amount separately in

the notice. The drawer of the cheque, however, failed to make the payment of the cheque amount to the payee/holder in due course of the cheque

within 15 days of the receipt of the said notice, which accrued a cause of action to the complainant to prefer a complaint against the accused u/s

138 of the Negotiable Instruments Act. After the petitioner-accused entered appearance in the proceedings cognizance of which the Trial Court

has taken on the complaint of the holder of the cheque, an application for dropping the proceedings was initiated on the ground of notice served by

the complainant being defective and vague, which, however, stood declined by the Trial Court and became subject matter of challenge in this

revision.

I have heard the learned counsel appearing for the petitioner-accused, at length and also perused the relevant provisions of law touching the

matter in controversy.

The spinal question that falls for determination in this revision is as to whether demand in the notice has to be made only for the cheque amount

otherwise notice will be bad. In other words, if besides stating the cheque amount, other amounts also claimed and separately mentioned in the

notice will render the notice defective and invalid. The provisions of Section 138, proviso Clause (b) prescribe no form of notice. The requirement

is only that notice be in writing, be given within 15 days of the receipt of information regarding return of cheque unpaid and a demand for payment

of the amount of the cheque be made in the notice. The object of issuing a notice indicating the factum of dishonouring the cheques is to give an

opportunity to the drawer to make the payment within 15 days, so that it will not be necessary for the payee to initiate any criminal action, even

though the Bank has dishonoured the cheque.

It was vehemently urged by the petitioner's advocate that in the instant case, the cheque amount was of Rs. 13,000, whereas demand was made

from the petitioner herein by the opposite party for a sum of Rs. 69,800. That was not the cheque amount and, as such, the notice is vague and

insufficient and the said notice cannot be sustained in law. I am unable to agree with the submission made by the petitioner's advocate. Section 138

requires the making of a demand for the payment of the amount of money by giving a notice. In my view, so long as the notice claiming the

payment of the amount mentioned in the dishonoured cheque, no fault can be found with the same. All that is required u/s 138 of the Negotiable

Instruments Act is that the drawer of the dishonoured cheque should be put to statutory notice that unless the payment of amount mentioned in the

dishonoured cheque is made within 15 days, he is liable to criminal prosecution. Mention of the excess amount, apart from clearly specifying the

cheque amount severable from the other amount, would not make the notice vague, insufficient or otherwise invalid. Once the notice expresses in

clear and unambiguous terms that the demand is being made for the repayment of the cheque amount, the statutory requirement is complied with. It

is not necessary to separately mention in words and figures the amount of the dishonoured cheque. Once it is indicated clearly in the notice that the

extra amount claimed is severable and separate from the cheque amount. It is, therefore, held that merely because a notice claiming a higher

amount, when separately indicated, demanded amount of dishonoured cheque, neither the notice would be invalid nor the criminal proceedings are

illegal.

It is further apt to point out that notice has to be read as a whole. In the notice, demand has to be made for the ""said amount"", i.e., the cheque

amount. If no such demand is made, the notice would fall short of legal requirement. Where in addition to the cheque amount, there is also a claim

for other amounts separately mentioned in the notice, or the additional amount-claim made is by way of interest, cost, etc., whether the notice is

bad would depend upon the language of the notice. If in the notice while giving the break-up of the claim the cheque amount and the other amounts

claimed are separately specified, the other such claims would be superfluous, and, thus, these additional claims being severable would 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 in that even would fail to meet the legal requirement contemplated under proviso (b) to Section 138 of the Negotiable Instruments Act. By

referring to a notice in the instant case, it is indisputably gatherable that demand has been made for an amount of Rs. 69,800 but indicated

separately and mentioned specifically that a cheque for an amount of Rs. 13,000 admittedly drawn by the petitioner-accused in discharge of his

debt/liability when presented by the payee to the concerned Bank was returned uncashed on 12.9.1998 for ""insufficient funds"" as per, memo

issued by the Bank. The notice unambiguously indicates that besides a demand for payment of the cheque amount, which was bounced, an

additional claim for other sums has also been made by giving a break-up and clearly severable would only be superfluous without giving rise to any

legal liability u/s 138 of the Negotiable Instruments Act. The Legislature, u/s 138, clearly stated that for the dishonoured cheque, the drawer shall

be liable for conviction if the payment is not made within 15 days of the receipt of the notice. But this is without prejudice of any other provision of

the Act. If the cheque amount is paid within the above said period and if the complaint is filed, the legal liability of ""said amount"" would cease and

for recovery of other demands, viz, the other sums indicated separately in the notice, remedy would lie some where else in appropriate

proceedings. It, therefore, follows if in a notice, any other sum is indicated in addition to the cheque amount, the notice cannot be said to be either

defective or invalid.

In the present case, the respondent/complainant has claimed in addition to the cheque amount some other amount, interest and cost, these two

amounts are severable. In such a case, if the accused-petitioner had paid the cheque amount within the period of 15 days of the receipt of the

notice, he would have been absolved from criminal liability u/s 138 of the Negotiable Instruments Act. That apart, a presumption contemplated

from a conjoint reading of Section 138 and Section 139 of the Negotiable Instruments Act together makes it abundantly clear and would arise only

in respect of the cheque amount and not the additional claim.

In the facts and circumstances of the case, I do not find any ground to interfere with the impugned order prepared by the Trial Court. For what

has been stated and discussed above, there is no merit in this revision and is accordingly dismissed.