Vipin Paul Sharma vs Joginder Singh

Mansbor Ahmad Mir, J.—Mansoor Ahmad Mir, J.-This Criminal Acquittal Appeal is directed against the judgment/order dated 8th of

August, 2005 passed by Judicial Magistrate 1st Class, Sunderbani, Rajouri, in complaint titled Vipan Paul v. Joginder Singh, Fie No. 32/2003,

where under complaint came to be dismissed and accused came to be acquitted.

Appellant/complainant filed a complaint before the trial Court u/s 138 of the Negotiable Instruments Act. 1881, for short the Act. Trial Court

has drawn cognizance and issued process against the accused/ respondent. Complainant examined witnesses, namely, Monohar Lal Sharma, T. K.

Ambardar and Harbans Lal as witnesses and his statement came to be recorded. The accused examined two witnesses, namely, Sanjeev Kumar

and Nethay Gupta, in support of his defence and his statement also came to be recorded.

An interesting question of law arises in this appeal in the background of Clause (b) of the proviso to Section 138 of the Act.

It is alleged in the complaint that accused' respondent has issued a cheque for an amount of Rs. 60,000 in favour of the complainant, the details,

of which are given in the impugned judgment as also in the complaint and was sent for collection but it bounced due to ""insufficient funds"". It is also

alleged that notice was issued and served upon accused for making the payment. The trial court after hearing learned counsel for the parties and

discussing the evidence dismissed the complaint on the ground that notice issued was not in accordance with said clause (b) of the proviso to

Section 138 of the Act. It is apt to reproduce Section 138 of the Act herein.

Dishonour of cheque for insufficiency, etc., of funds in the account- Where any cheque drawn by a person on an account maintained by him

with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or

other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour

the cheque or-that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be

deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment [a term

which may be extended to two years] or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing

contained in this section shall apply unless:

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity,

whichever is earlier;

(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

(c) the drawer of such cheque fails to make the payment of the 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.

Clauses (b) and (c) of the proviso to Section 138 of the Act mandate that the complainant/ payee has to issue a notice to the drawer of the cheque

with a specific demand to make the payment of cheque amount. If the demand is not made viz-a-viz cheque amount and is vague, the complaint is

to be dismissed.

5.The trial Court held that complainant has not proved that he had made the demand and asked the drawer/accused to make the payment of the

cheque amount. I am of the considered view that the finding returned by the trial Court needs no interference and merits to be upheld for the

following reasons:

Complainant has specifically stated/ deposed that he has made demand for an amount of Rs. 90,000. It is apt to reproduce relevant para of his

statement herein as under:

(Matter in other language)

Thus, it is crystal clear that accused has not made demand for cheque amount. Copy of the notice is with the trial court record. The said notice

dated 19th of June, 2003 appears to have been prepared and drafted by Ms. Sushma Sharma, Advocate, but she has not been examined as

witness before the trial court. Thus, the complainant has failed to prove the contents of the said notice. While going through the said so called

notice, the demand has not been made for the cheque amount. In para-2, it is specifically mentioned that complainant had deposited Rs. 90,000

with the accused as a premium which he had collected from so many insured persons but the accused has failed to deposit the full amount,

however, he has issued the cheque for some amount that too bounced. Thus, the demand is made for Rs. 90,000. Viewed thus, the demand is not

made in terms of the mandate of the Act. My this view is fortified by Apex court judgments reported as K.R. Indira Vs. Dr. G. Adinarayana, .

As discussed hereinabove, the complainant has failed to prove the contents of the notice, thus it can be safely held that the complainant has

failed to prove that notice was issued to the accused in terms of provisions of Section 138 of the Act, for making payment of cheque amount.

In the given circumstances, the impugned order merits to be upheld and appeal is dismissed. However,' the dismissal of the appeal shall not

come in the way of the appellant in seeking any other remedy available to him.

Appeal is, accordingly, dismissed.

Registry to send down the record along with a copy of this judgment.