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TMI Blog2024 (2) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused no. 1, that is, Nafto Gaz India Pvt. Ltd., entered into a Memorandum of Understanding with the respondent herein, that is the complainant, on 30.04.2012, pertaining to the sale of land bearing Khasra No. 75, Khewat No. 61, Khata no. 112 and Khatoni No. 61/14, Village - Humayun Pur situated at Abadi of Arjun Nagar, New Delhi, and also agreed to take on lease the said property till the final sale deed is executed. It also issued certain cheques towards the liability of the payment of the rent for the leased property. 3. It is stated that Cheque bearing no. 876229 dated 12.05.2012 drawn on the Indian Overseas Bank, R.K. Puram, Delhi amounting to Rs. 1 crore (Rupees one crore) issued by the accused no. 1 was returned dishonoured with the remark 'funds insufficient'. It is alleged that on the dishonour of the said cheque, the respondent herein sent a legal demand notice on 08.06.2012, on which the accused nos. 4 and 5 gave a false and frivolous reply. It is alleged that the accused no. 3/petitioner herein avoided service of the demand notice. 4. The accused in the complaint, including the petitioner herein, were summoned by an order dated 04.09.2012 passed by the learned Met ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of the High Court of Karnataka in K.Gopal v. T. Mukunda, (judgment dated 29.07.2021 passed in Criminal Appeal No. 1011/2010). 9. He submits that the plea of the respondent that there was a clerical mistake in the notice dated 08.06.2012 as more than one notice, including one for an amount of Rs. 2 crores, was issued simultaneously by the respondent, is false, as the notice for the dishonour of the cheque of Rs. 2 crores was issued only on 14.09.2012, that is, more than three months after the notice in question. Submissions by the learned counsel for the respondent 10. On the other hand, the learned counsel for the respondent submits that there was a clerical mistake in the legal notice dated 08.06.2012. She submits that as there are more than one cheque issued by the accused no. 1, more than one notice was prepared simultaneously on the dishonour of the cheques. By mistake, the amount of Rs. 2 crores, which was in relation to another cheque, was mentioned as a demand in the notice dated 08.06.2012 relating to the cheque of Rs. 1 crore, which is the subject matter of the present petition. She submits that the complaint has been pending adjudication since the year 2012, and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest or costs is made, it would depend on the language of the notice whether it is bad in law. Where an omnibus demand is made without specifying what was due under the dishonoured cheque, the notice would fail to meet the legal requirement. The Supreme Court has held as under:- "8. It is a well-settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the "said amount" i.e. the cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where 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 break-up of the claim the cheque amount, interest, damages etc. are separately 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, the notice might well fail to meet the legal requirement and may be regarded as bad." 14. The above view was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Of course, if the payee of the cheque makes some demands on account of interest, compensation, incidental expenses etc. that would not invalidate the notice so long as the principal amount demanded by the payee of the cheque is correct and is clearly identified in the notice. When the principal amount claimed in the notice of demand is more than the principal amount actually payable to the payee of the cheque and the notice also does not indicate the basis for demanding the excess amount, such a notice cannot be said to be a legal and valid notice envisaged in Section 138(b) of Negotiable Instrument Act. In such a case, it is not open to the complainant to take the plea that the drawer of the cheque could have escaped liability by paying the actual amount due from him to the payee of the cheque. In order to make the notice legal and valid, it must necessarily specify the principal amount payable to the payee of the cheque and the principal amount demanded from the drawer of the cheque should not be more than the actual amount payable by him though addition of some other demands in the notice by itself would not render such a notice illegal or invalid." 16. In view of the Provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... typographical error, in the considered opinion of this Court, the complainant cannot get rid of the notice issued by him under Section 138(b) of Negotiable Instruments Act. The provisions of Section 138 of Negotiable Instruments Act are penal in nature and, therefore, the provisions are to be construed strictly." 20. Similarly, the Andhra Pradesh High Court in M/s. Yankay Drugs and Pharmaceuticals Ltd. Hyderabad (supra), was confronted with the fact that though the cheque dishonoured by the bank was of Rs. 9,972/-, notice demanded only Rs. 3,871/-. The discrepancy was again sought to be explained as a typographical error. The said submission of the complainant, however, was rejected by the Court observing as under: "15. I am unable to agree with this contention. As already noted, giving notice and demanding payment of the amount covered by the dishonoured cheque is one of the main ingredients of the offence under Section 138 of the Act. If that main ingredient is missing, no offence is made out under Section 138. Furthermore, as already held by this Court in H.L. Agarwal v. Rakesh Agarwal, 1997 (1) ALT (Crl.) 678, the offence under Section 138, of the Act "being a technical of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observing as under: "10. In a valid prosecution u/s. 138 of the Negotiable Instruments Act, I am of the view that service of notice is imperative for maintaining a complaint. The parliament while enacting Section 138 imposed a condition that, making a demand for payment of the cheque amount by giving a notice in writing is an essential one. Such notice has to be issued within the statutory period. The conditional precedent is to make a demand of the amount of cheque. A notice demanding huge amount than the dishonoured cheque amount would not serve the requirement. In Annexure-III a sum of Rs. 80 lakhs was mentioned as due amount but actually borrowed amount is Rs. 8 lakh only. Therefore, no demand was made by the 1st respondent as per Section 138(b) of N.I. Act. Unless a notice is given in agreement with 138(b) of the N.I. Act, a complaint would not be maintainable. In the present case, no demand was made for the payment of cheque amount. If trial is proceeded with Annexure-III notice, it amounts to an abuse of the process of Court." 23. The Karnataka High Court, in K. Gopal (supra), was again confronted with the situation where though the cheques that were dishonoured were fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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