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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 ..... ith Proviso (b) to Section 138 of the NI Act. The plea of the respondent of there being a typographical error in the notice, even if accepted on facts, cannot be accepted in law to give rise to a cause of action to the respondent to maintain the complaint under Section 138 of the NI Act. The notice being defective, the cause of action for filing of the complaint under Section 138 of the NI Act did not accrue in favour of the respondent. The plea of the respondent that since the complaint has been pending for long, this Court should not exercise its power under Section 482 of Cr. P.C. to quash the complaint, also cannot be accepted. The petitioner cannot be made to suffer the agony of defending a complaint, which on the face of it is not maintainable. Petition allowed. - HON'BLE MR. JUSTICE NAVIN CHAWLA For the Petitioner Through: Mr. Siddharth Khattar, Mr. Akash Jain Mr. Divij Andley, Advs. For the Respondent Through: Ms. Aditi Pancharia, Adv. JUDGMENT 1. This petition has been filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (in short, Cr.P.C. ) seeking quashing of Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainable. The said application, however, was dismissed by the learned Metropolitan Magistrate by an order dated 06.10.2021, holding that the same is not maintainable. The petitioner thereafter has filed the present petition. Submissions by the learned counsel for the petitioner 7. The learned counsel for the petitioner submits that the cheque in question was for an amount of Rs. 1 crore, however, by the demand notice dated 08.06.2012, the respondent had demanded from the petitioner pay a sum Rs. 2 crores. Placing reliance on the judgments of the Supreme Court in Suman Sethi v. Ajay K. Churiwal and Another, (2000) 2 SCC 380 and in Rahul Builders v. Arihant Fertilizers Chemicals and Another, (2008) 2 SCC 321, he submits that the complaint is not maintainable as the demand in excess of the cheque amount has been made by the respondent in the Demand Notice. 8. He further submits that the plea of the respondent that there was a typographical error in the legal notice dated 08.06.2012, is not only false but also cannot be accepted to make the complaint maintainable inasmuch as the benefit of this mistake, if any, has to accrue in favour of the accused. As long as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 4 [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consciously imposed certain conditions. One of the conditions was service of a notice making demand of the payment of the amount of cheque as is evident from the use of the phraseology payment of the said amount of money . Such a notice has to be issued within a period of 30 (sic 15) days from the date of receipt of information from the bank in regard to the return of the cheque as unpaid. The statute envisages application of the penal provisions. A penal provision should be construed strictly; the condition precedent wherefor is service of notice. It is one thing to say that the demand may not only represent the unpaid amount under cheque but also other incidental expenses like costs and interests, but the same would not mean that the notice would be vague and capable of two interpretations. An omnibus notice without specifying as to what was the amount due under the dishonoured cheque would not subserve the requirement of law. Respondent 1 was not called upon to pay the amount which was payable under the cheque issued by it. The amount which it was called upon to pay was the outstanding amounts of bills i.e. Rs 8,72,409. The noticee was to respond to the said demand. Pursuant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 138 of the NI Act is the cheque amount. It has further been clarified that if no such demand is made, the notice would fall short of the legal requirement. It has further been clarified that if any additional claims are also made in the notice, unless they are severable in nature, the cause of action for filing of the complaint shall fail. Reference in this regard may also be made to the judgment of the Supreme Court in Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel Anr., (2023) 1 SCC 578, as well. 17. In the present case, admittedly, the notice of demand dated 08.06.2012 demanded Rs. 2 crores from the accused instead of the cheque amount of Rs. 1 crore. It also did not specify the reason for demanding the amount in excess. Therefore, in view of the above referred judgments, the notice was not in compliance with Proviso (b) to Section 138 of the NI Act. 18. As far as the submission of the learned counsel for the respondent that there was a typographical error in the notice, though the learned counsel for the petitioner has disputed the same by asserting that simultaneous to the notice in question there was no other notice issued by the respondent for a che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra), the High Court of Punjab Haryana was presented with the fact that there was a discrepancy in the number of the cheque which had been dishonoured. The same was again sought to be explained by alleging a typographical error. The Court, however, rejected the said submission of the complainant, by observing as under: 7. Undisputedly, both the parties had business dealings with each other with regard to handlooms. It has come on record that the accused had issued cheque No. 476844 as security cheque to the complainant which he presented for encashment by filling an amount of Rs. 2,00,000/- as part payment towards Bill No. 248 dated 25/09/1995 for Rs. 3,26,565.51/- but the same was dishonoured on account of non-arrangement of funds by the drawee bank. However surprisingly, complainant served a legal notice to the accused qua cheque No. 47844 dated 26/09/1995 which apparently was not for the cheque in dispute. It may be true, that there was a typographical error in the said legal notice while typing out the cheque number but such typographical error if any, does not meet the compliance of the mandatory provisions of Section 138 of the Negotiable Instruments Act and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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