INADVERTENT ERROR IN MENTIONING THE CORRECT FIGURE IN A CHEQUE CANNOT BE A GROUND TO DISCHARGE THE ACCUSED

[DR.MARIAPPAN GOVINDARAJAN]

Introduction

When a cheque given for repayment of any loan etc., and the same is presented and dishonoured then a criminal action may be initiated against the person whose cheque was dishonoured under Section 138 of the Negotiable Instruments Act, 1881 (‘Act’ for short).  Many issues have been evolved under this Act.

Difference in the amount of cheque

Normally the amount is written in words and numbers. There may be chances to write the amount differently in figure and in writing.  In such a case the amount written in the cheque would be taken as the amount of the cheque.  Whether such default will discharge the accused from the criminal action?  Some case laws are discussed in this regard.

Case laws

In RANGAPPA VERSUS SRI MOHAN - 2010 (5) TMI 391 - SUPREME COURT, the Supreme Court held that Section 139 of the Act is an example of reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments.  The rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. Furthermore, merely because there was a difference in the amount of cheque specified in words and figures, would not make a cheque invalid in view of Section 18 of the Act. Also, divergence of the two figures, one appearing on the cheque and the other in the Demand Notice, is not fatal to the case of the prosecution.

In N. HASAINAR VERSUS M. HASAINAR - 2008 (7) TMI 1129 - KARNATAKA HIGH COURT it was held that discrepancy in the amount as mentioned in the cheque and the Demand Notice, would not be fatal to the case of the prosecution.

In SUMAN SETHI VERSUS AJAY K. CHURIWAL - 2000 (2) TMI 822 - SUPREME COURT wherein it was observed that while reading Section 138 as a whole, common sense must be applied to ascertain whether in the Notice issued under Clause B of Section 138A, demand has been made for the cheque amount. If no such demand is made, the Notice would fall short of the legal requirement. However, when there is in addition to the 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 breakup of the claim the cheque amount, interest, damages, etc are specifically 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 an omnibus demand is made without specifying what was due under

the dishonoured cheque, Notice might well fail to meet the legal requirement and may be regarded as bad.

In NITESH YADAV VERSUS STATE NCT OF DELHI & ANR. - 2025 (3) TMI 559 - DELHI HIGH COURT, the respondent Sonu Rana obtained a loan of Rs.5 lakhs from the Nitesh Yadav, the complainant in this case.  Since the respondent did not pay the dues, Nitesh Yadav agreed to accept Rs.4,65,000/- for the settlement of the loan from the respondent.  Nitesh Yadav received a cheque from Abhishek Malik, cousin of Sonu Rana.  The cheque was presented before the Bank for its honour but the same could not be honoured since there was an instruction to the bank to stop payment.  Therefore, Nitesh Yadav filed a complaint under Section 138 of the Negotiable Instruments Act, 1881(‘Act’ for short) before the Metropolitan Magistrate. 

The respondent was summoned on 24.09.2019.  The respondent sought for his discharge from the complaint on the ground that the alleged cheque was overwritten date, a material alteration which rendered the cheque invalid under section 87 of the Act.  The respondent further contended that the cheque amount Rs.4,65,000/- was written as Rupees Four lakhs and sixty-five.  The demand note issued to the respondent mentioned the amount to be payable is Rs.4,65,000/-.  It is mandatory that the exact amount payable shall be indicated in the statutory demand notice.  In the instant case the demand is for Rs.4,65,000/-.  Therefore, the demand notice did not meet the requirements under the Act and therefore, the respondent ought to be discharged.

The Metropolitan Magistrate held in his order dated 24.09.2018 that a discrepancy in the words and figures on the cheque was a matter of trial since the legal Demand Notice specifically gave the cheque amount as Rs.4,65,000/-; what amount was intended at the time of issuance of cheque could be determined only by way of trial and Notice was framed against Respondent No.2.

The respondent filed an appeal before the Additional Sessions Court.  The Additional Sessions Judge observed that the amount of Cheque is Rs.4,00,065/- whereas the cheque is for Rs.4,65,000/-.  There was a patent ambiguity and the Complainant was unable to establish as to what amount had to be paid by the accused under the cheque.  The Additional Sessions Judge set aside the order of Metropolitan Magistrate and discharged the accused, the respondent, vide its order dated 24.09.2019.

Against the said order Nitesh Yadav filed the present Criminal Misc (Main) petition before the High Court under Section under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India.  The petitioner submitted the following before the High Court-

• A person, who signs a cheque and makes it over to the payee, remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability.
• It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer.
• If the cheque is otherwise valid, the penal provisions of Section 138  would be attracted.
• Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
• The presumption under Section 139 of Act would still arise, for the cheque dishonour on account of ‘stop payment’ instructions unless it is established by the accused that there was sufficient funds in his account in the first place on the date of signing of the cheque and on the date of presentation of the cheque.

Therefore, the complainant contended that the order passed by the Additional Sessions Judge ought to be set aside and restore the original complaint before the Metropolitan Magistrate. 

The Second respondent Renu submitted the following before the High Court-

• The Petitioner has intentionally filed a Complaint under Section 138 of Act, without any annexure and documents including the cheque in question, its alleged Bank Return Memo, and the Statutory Demand Notice dated 27.01.2018.
• The petitioner has misused the cheque in connivance with his friend Malik.
• The date of original cheque has been over written.
• If there is discrepancy in the amount of cheque as mentioned in words and figures and in terms of Section 18 of Act, the amount mentioned in words has to be accepted as correct.
• The cheque amount is Rs.4,00,065/- only while the Demand Notice has been sent for Rs.4,65,000/- which means that no valid legal Notice has been sent.
• The cheque was dishonoured beyond the validity period of 3 months.

Therefore, the second respondent contended that there would be no interference of the order of Additional Sessions Judge by the High Court and the petition is liable to be dismissed.

The High Court considered the submissions of both the parties.  The High Court observed that the respondent No.2 has been discharged on the following two grounds-

• over writing in the date of cheque; and
• discrepancy in mentioning of the amount in words and figures and the Legal Notice was given for an amount of Rs.4,65,000/-.

The High Court framed the question to be decided in this case is as to whether the legal requirement for holding a legal Demand Notice issued under Section 138B of the Act is valid.

The High Court observed that the legal notice issued to the respondent about the dishonour of the cheque is Rs.4,65,000/-.  But in the cheque the amount in figure is shown correctly as Rs.4,65,000/-.  But in writing it has been mentioned as Rupees Four lakhs and sixty-five only. The High Court observed that the error occurred may be due to inadvertence rather than depicting different amount.  In the return memo it was clearly indicated that the cheque amount is Rs.4,65,000/-.  The said amount has also been indicated in the legal notice. Likewise, overwriting of the date on the cheque, has not been considered as a material interpolation meriting dishonour of the cheque.

The High Court was of the view that the complaint under Section 138 of the Act ought not to be dismissed without putting the parties to trial and without affording opportunities to prove their respective cases.  The High Court held that the error in writing the correct figure in words, would not at this stage, make the cheque invalid especially when no Reply has been given by Respondent No.2 to the Legal Notice to refute his liability and has not questioned the Notice making a demand of Rs.4,65,000/-.

The High Court set aside the orders of the Additional Sessions Judge and directed to be tried by the Metropolitan Magistrate in accordance with law.