2021 (11) TMI 160 - HC - Indian Laws

Dishonor of Cheque - whether the notice sent by the petitioner to the opposite party No.-2 in connection with the cheque was in terms of Section 138 of the Negotiable Instruments Act or not? - HELD THAT - Upon perusal of the said notice, this Court also finds that the complainant had made an allegation that since beginning, the father of the opposite party No.-2 wanted to cheat the complainant and had mis-utilized the money to his benefit and even hampered the business of the complainant. This Court further finds that the details of only one of the cheques i.e., cheque No. 794335 dated 17.10.2004 amounting to ₹ 5,000/- was mentioned in the notice and so far as other cheque bearing No. 0689316 dated 05.11.2004 is concerned, it was simply stated that the same had bounced, but no further details of that cheque was given in the notice. Upon perusal of the entire notice, this Court finds that no demand was ever made by the petitioner asking the opposite party no. 2 to pay the cheque amount/amounts and accordingly, the learned appellate court has rightly held that the notice issued in the present case was not in conformity with the provision of Section 138 of the Negotiable Instruments Act. The law is well-settled that the complaint under Section 138 of the Negotiable Instruments Act is not maintainable, if no demand was made for payment of the cheque amount in the notice. In the present case also, the notice i.e., Ext.-7, even when read as a whole, does not reflect any demand for making payment of any amount much less the cheque amount - the judgment passed by the learned appellate court holding that complaint itself was not maintainable as the notice was not in accordance with the provisions of Section 138 of the Negotiable Instruments Act, is neither perverse nor illegal and the same does not call for any interference. This Court does not find any merit in the present criminal revision application, which is accordingly dismissed.

Summary

Issues:
Setting aside the judgment dated 25.03.2009 passed by the learned Additional Sessions Judge, Fast Track Court No.-1, Dhanbad in Criminal Appeal No. 170/08.

Analysis:
The petitioner filed a criminal revision application to challenge the judgment setting aside the conviction of the accused under Section 138 of the Negotiable Instruments Act by the trial court. The petitioner argued that the appellate court's decision was perverse, emphasizing that the notice regarding the bouncing of the cheque was valid and in accordance with the law. The petitioner contended that the notice was comprehensive and fulfilled the basic requirements under the Act. Reference was made to a Supreme Court judgment to support the argument that the notice should be read as a whole to determine its validity.

The opposite party No.-2, however, opposed the petitioner's arguments, stating that the notice lacked a specific demand for the payment of the cheque amount and was therefore defective. The notice mentioned one cheque amount, while the complaint was related to a different cheque, making the notice vague and insufficient. The appellate court found the notice defective and acquitted the accused based on the notice's inadequacy.

The High Court examined the contentions of both parties and reviewed the notice issued by the petitioner. The court noted that the notice did not contain a clear demand for payment of the cheque amount, as required by Section 138 of the Act. Citing relevant legal precedents, the court emphasized that a valid notice must explicitly demand the payment of the cheque amount to maintain a complaint under Section 138. As the notice in question failed to meet this requirement, the court upheld the appellate court's decision to set aside the trial court's judgment. The High Court concluded that the complaint was not maintainable due to the defective notice and dismissed the criminal revision application.

In light of the above analysis, the High Court found no merit in the petitioner's arguments and upheld the decision of the appellate court. The court emphasized the importance of a valid notice demanding the cheque amount for maintaining a complaint under Section 138 of the Negotiable Instruments Act. The judgment highlighted the legal principles regarding the content and requirements of a notice in such cases, ultimately supporting the acquittal of the accused based on the defective notice issued by the petitioner.