9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2010 (1) TMI 1288 - HC - Indian LawsNegotiable Instruments Act (NIA) - Petitioner No. 1 issued two cheques - Presented for Encashment - returned unpaid with the remarks signature different - In lieu of the previously dishonoured cheques they issued three other cheques - Out of 3 cheques issued one cheque returned unpaid with the remarks stop payment - No payment made in notice period - complaint u/s 138/141 NIA and also u/s 420 of IPC - HELD THAT- Considering the matter on record I hold that the complaint subject matter of Crl.M.C. No. 2225/2009 is liable to be quashed because the complainant presented the cheque for encashment of the whole amount of 49, 47, 600/- though the amount due to him on the date of the presentation of the cheque was 32, 9600/- and he also demanded the whole of the amount of 49, 47, 600/- as principal sum without even indicating the principal amount due to him under the cheque was 32, 97, 600/- and without even referring to the part- payment of 16, 50, 000/- which he had received by RTGS on 7.10.2008. The criminal complaint subject matter of Crl.M.C.2224/2009 is liable to be quashed as the complainant presented the cheque for encashment of whole of its amount of 31, 91, 650/- though he had already received a sum of 10, 50, 000/- before presentation of the cheque and the principal amount due to him on the date of presentation of the cheque was only 21, 41, 650/-.
Issues Involved:
1. Validity of the notice under Section 138 of the Negotiable Instruments Act. 2. Legal implications of part-payment made after the issuance but before the presentation of the cheque. 3. Compliance with the requirements of Section 138 of the Negotiable Instruments Act. Detailed Analysis: 1. Validity of the Notice under Section 138 of the Negotiable Instruments Act: The primary issue was whether the notices issued by the complainant to the petitioners were valid under Section 138(b) of the Negotiable Instruments Act. The court observed that the notices demanded amounts higher than what was actually due at the time of presentation of the cheques. Specifically, for the cheque of Rs. 49,47,600/-, the complainant demanded the entire amount despite having received Rs. 16,50,000/- via RTGS, reducing the actual amount due to Rs. 32,97,600/-. Similarly, for the cheque of Rs. 31,91,650/-, the complainant demanded the full amount despite having received Rs. 10,50,000/-, reducing the amount due to Rs. 21,41,650/-. The court held that a notice demanding more than the actual amount due is invalid and does not comply with the requirements of Section 138(b). 2. Legal Implications of Part-Payment Made After Issuance but Before Presentation of the Cheque: The court addressed whether part-payments made after the issuance but before the presentation of the cheque should be considered when determining the liability under Section 138. The court concluded that the expression "amount of money" in Section 138 should mean the amount actually payable at the time of presentation, not necessarily the amount on the cheque. This interpretation prevents the drawer from being unfairly penalized for amounts already paid and ensures that the payee cannot demand more than what is legally due. The court noted that the payee could either take a new cheque for the reduced amount or make an endorsement acknowledging the part-payment on the original cheque. 3. Compliance with the Requirements of Section 138 of the Negotiable Instruments Act: The court analyzed the components necessary to constitute an offence under Section 138, which include: 1. Drawing of the cheque for the discharge of a debt or liability. 2. Presentation of the cheque to the bank. 3. Returning of the cheque unpaid due to insufficient funds or exceeding the arrangement. 4. Giving notice to the drawer demanding payment within 15 days of the cheque being dishonoured. 5. Failure of the drawer to make the payment within 15 days of receiving the notice. The court found that the notices in question did not comply with these requirements because they demanded amounts higher than what was actually due. Therefore, the demands were not legally valid, and the petitioners were not obligated to honor the cheques for the full amounts stated. Conclusion: The court quashed the complaints subject to Crl.M.C. No. 2225/2009 and Crl.M.C. No. 2224/2009. It was held that the complainant's notices were invalid as they demanded more than the actual amounts due, thus failing to meet the legal requirements under Section 138(b) of the Negotiable Instruments Act. The court emphasized that the principal amount demanded in the notice must not exceed the actual amount payable, and any additional claims must be clearly specified and justified.
|
