9911796707
TMI Blog2021 (8) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... raise a demand for payment of ₹ 16,40,340/- towards the dishonoured cheques referred in Serial Nos. 3, 5 and 6. A perusal of the judgment in K.R. Indira's case [ 2003 (10) TMI 385 - SUPREME COURT ] it is clear that, if the demand for an amount covered by dishonoured cheque is conspicuously absent in the notice issued, then, the notice in question is imperfect. In the present case also, the exact amount, which the appellant claimed for towards the dishonoured cheques was not mentioned in the legal notice, and the appellant has mentioned only the serial numbers, viz., Serial Nos. 3, 5, and 6 in respect of the dishonoured cheques. Therefore, this Court is of the view that the legal notice issued by the appellant does not satisfy the ingredients contemplated under Section 138(b) of the N.I. Act. and the Court below having considered all these aspects in a proper perspective, rightly refused to entertain the complaint by holding that the legal notice issued by the appellant is not in accordance with the provision of Section 138(b) of the N.I. Act and accordingly, dismissed the complaint. Appeal dismissed. - Crl. A. No. 47 of 2016 - - - Dated:- 30-7-2021 - Krish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 29.12.2012 991957 -do- ₹ 5,94,460/- Total ₹ 30,57,883/- iii) When the appellant presented the cheque referred in Serial No. 1, for encashment, the same was dishonoured on account of insufficient funds . Therefore, he informed the same to the respondent-Company and they paid entire cheque amount referred in Serial No. 1 in three installments. As far as the cheques referred in Serial Nos. 2 and 4 are concerned, those cheques were also dishonoured and when the same was brought to the notice of the respondent-Company, they settled only a sum of ₹ 3,50,000/-, towards the cheque referred in Serial No. 4, in three installments and left the balance of ₹ 40,238/- unpaid. Insofar as cheque referred in Serial. No. 2 is concerned, the respondent -Company has not paid any amount, despite their promise to repay the same. iv) Subsequently, at the request of the respondent-Company, on 19.02.2013, the appellant presented the cheques referred in Serial Nos. 3, 5 and 6 for encashment. However, the same were returned f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the first paragraph, the amount claimed by the appellant was clearly mentioned as follows:- My client states that in so far as the dishonour of cheques mentioned in items 3, 5 and 6 is concerned, your conduct in having issued the cheques towards a subsisting liability and allowed the same to be dishonoured is an offence under Section 138 of the Negotiable Instruments Act for which you are liable to be prosecuted and imprisoned. 3.1. By referring to the above said paragraph, the learned counsel submitted that the demand was made in connection with cheques referred in Serial Nos. 3, 5 and 6 alone. Further, in paragraph No. 2 of the legal notice also, the appellant clearly mentioned the serials numbers in respect of the dishonoured cheques, viz., Serial Nos. 3, 5 and 6. The Court below, without considering all these aspects, dismissed the appellant's complaint wholly by stating that the legal notice was not issued in terms of Section 138(b) of the N.I. Act. Therefore, he submitted that the judgment of the Court below is liable to be set aside and the respondent - Company is liable to be prosecuted in terms of Section 138(b) of the N.I. Act. Further, in support of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudice to any other provision of this Act, be punished with imprisonment for 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. 7.1. A perusal of the above provision particularly, clause (b) makes it clear that, the payee or the holder in due course of the cheque, as the case may be, makes a demand for payment of the said a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 6, failing which, the respondent-Company will be prosecuted under Section 138 of the N.I. Act. Further, the appellant, in the penultimate para at Page 4, called upon the respondent - Company to pay the amount covered by the cheques along with ₹ 1000/- within 15 days from the date of receipt of the legal notice. Thus, it is clear that, in the last para, at page No. 3 of the said legal notice, the appellant made a claim for a sum of ₹ 22,16,643/-, whereas, in the last para, at page No. 4, the appellant has purposely not mentioned the serial numbers in respect of the dishonoured cheques, but had mentioned only about the amount covered in respect of the cheques. Therefore, the demand made by the appellant would be considered as omnibus demand made against the respondent- Company and cannot be entertained under Section 138 of N.I. Act. 7.4. Further, it has to be stated that, the legal notice issued in terms of Section 138 of N.I. Act should be crystal clear, without any ambiguity and there should not be any omnibus demand, and in case, if any omnibus demand is made by the complainant, then, the same cannot be treated as a notice issued in accordance with the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant by holding that the legal notice does not satisfy the legal requirement of Section 138(b) of the N.I. Act. In this context, the one other judgment relied upon by the learned counsel for respondents would be of useful to refer, viz., the judgment rendered by the Hon'ble Apex Court in the case of K.R. Indira vs. Dr. G. Adinarayana (cited supra), wherein, it is held as follows: What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case. The notice in question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount, the non-compliance with such a demand only being the incriminating circumstance which exposes the drawer for being proceeded against under Section 138 of the Act. That being the position, the ultimate conclusion arrived at by the trial court and the High Court does not call for interference in these appeals, though for different reasons indicated by us. The appeals are, accordingly dismissed. 7.7. A perusal of the above judgment in K.R. Indira's case ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
