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TMI Blog2019 (5) TMI 1753X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. The complaint is filed against the petitioner by the second respondent. The petitioner seeks to quash the complaint by invoking the power of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). 2. The material averments in the complaint are the following: The complainant and the accused are close relatives. The accused borrowed an amount of Rs. 35,00,000/- from the complainant and he signed and gave a cheque dated 15.11.2014 to the complainant. The complainant presented the cheque in the bank. It was dishonoured due to insufficient funds. The complainant received intimation from the bank regarding the dishonour of the cheque on 13.12.2014. He sent a lawyer notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence under Section 138 of the Act is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank. The proviso appended to Section 138 imposes certain further conditions which must be fulfilled for taking cognizance of the offence. One of such conditions, as envisaged under Clause (b) of the proviso to Section 138 of the Act, is that the payee or the holder in due course of the cheque, as the case may be, shall make a demand for the payment of the amount of the cheque by giving a notice in writing to the drawer of the cheque, within thirty days of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of notice is prescribed under Clause (b) of the proviso to Section 138 of the Act (See Central Bank of India v. M/s Saxon Farms : AIR 1999 SC 3607). The requirement of giving notice to the drawer of the cheque is to enable him to avoid the prosecution under Section 138 of the Act. It is well settled principle of law that the notice has to be read as a whole. A notice must be construed not with a desire to find fault in it which would render it defective. It must not be read in a hyper-technical manner. It must be construed strictly but in a sensible manner. 9. In the instant case, in Annexure-I notice it is specifically stated that the complainant is legally entitled to realize the amount of the cheque from the petitioner and that the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or liability. Therefore, the omission or error in the notice to mention the nature of the debt or liability, does not render it invalid. It is also to be noted that the nature of the debt is disclosed in the complaint. 12. It is contended by the petitioner that there is no specific averment in the complaint that the cheque was issued in discharge of the amount allegedly borrowed by him from the complainant. There is no need to make such a specific averment in the complaint. There is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability (See M.M.T.C Limited v. Medchil Chemicals and Pharma (P) Limited : AIR 2002 SC 182). 13. Section 139 of the Act provides that it shall be pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused although appears to be plausible should not be taken into consideration for exercise of the jurisdiction under Section 482 of the Code. Whether there was outstanding liability or not is a question of fact which could be determined only by the trial court after recording evidence of the parties. The High Court shall not express its view on disputed questions of fact in a petition under Section 482 of the Code to come to a conclusion that the offence is not made out. It is well settled that while dealing with a petition under Section 482 of the Code, the Court has ordinarily to proceed on the basis of the averments in the complaint. The defence of the accused cannot be considered at that stage. The Court considering the prayer for qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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