High Court
Facts
cran3302.23-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 945 CRIMINAL APPLICATION NO. 3302 OF 2023Satish Sambhajirao GaikwadVERSUSSanjay Ramchandra Pawar...Advocate for Applicant : Mr. Garje Nisargraj B. Advocate for Respondent : Mr. H.V. Tungar ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 10th MAY, 2024. PER COURT :- 1.This application is under Section 482 of the Code of CriminalProcedure, 1973 for quashing of the proceedings filed against theapplicant under Section 138 of the Negotiable Instruments Act, 1881in which the process is issued against the applicant in S.C.C. No.134 of 2023 dated 4.3.2023. 2.Learned advocate for the applicant has pointed out thegrounds of objection in the application that the notice was sent by thecomplainant to this applicant is not legal, correct and in accordancewith law. Cheque No. 041484 for Rs.13,40,000/- was dishonouredand in the demand notice another cheque bearing No. 041484 andNo. 041485 for Rs.9,60,000/- are mentioned. Thus, the notice is notlegal and the requirements of Section 138 of N.I. Act are notcomplied with. The necessary pleadings are not made in thecomplaint. Therefore, it is prayed to quash and set aside the
Legal Reasoning
cran3302.23-3- iii)Upasana Mishra vs. Trek Technology India Pvt. Ltd. (2023SCC Online SC 1740). Para 5 of the same reads as under:-“5. The relevant paragraph of the decision in Suman Sethi’scase (supra) is extracted for a proper disposal of this case:“8. It is well settled principle of law that the notice has to beread as a whole. In the notice, demand has to be made for the"said amount" i.e. cheque amount. If no such demand is madethe notice no doubt would fall short of its legal requirement.Where in addition to "said amount" there is also a claim byway of interest, cost etc. whether the notice is bad woulddepend on the language of the notice. If in a notice whilegiving the break up of the claim the cheque amount, interest,damages etc. are separately specified, other such claims forinterest, cost etc. would be superfluous and these additionalclaims would he severable- and will not invalidate the notice. If,however, in the notice an omnibus demand is made withoutspecifying what was due under the dishonored cheque, noticemight well fail to meet the legal requirement and may beregarded as bad. 9. This Court had occasion to deal with Section 138 of theAct in Central Bank of India & Anr. v. M/s. Saxons Farms &Ors., JT (1999) 8 SC 58 and held that the object of the noticeis to give a chance to the drawer of the cheque to rectify hisomission. Though in the notice demand for compensation,interest, cost etc. is also made drawer will be absolved fromhis liability under Section if he makes the payment of theamount covered by the cheque of which he was aware within15 days from the date of receipt of the notice or beforecomplaint is filed. As therein, some other sums were indicatedin addition to the amount of cheque, it was, therefore, not held cran3302.23-4- to be a case where the dispute might be existing in respect ofthe entire outstanding amount.” (Emphasis added)” 4.Learned advocate for the respondent strongly opposed theapplication and submitted that the applicant has filed this applicationonly with an intention to avoid the payment. He submitted thatthough the number of another cheque is mentioned in the noticeissued to the applicant, the fact of dishonour of particular cheque isclearly mentioned in the notice. However, only because of mistake ofthe advocate that description of both cheque numbers anddemanded that amount, it is not illegality to discharge the accusedfrom criminal liability under Section 138 of N.I. Act. 5.Learned advocate for the respondent, in support of hiscontentions, has placed reliance on the following authorities:- i)Lafarge Aggregates & Concrete India Pvt. Ltd. vs. SukarshAzad & Anr. (2014 ALL MR (Cri.) 1518 (S.C.). Para 9 of the saidauthority reads as under:- “9. The object of bringing Sections 138 to 142 of theNegotiable Instruments Act on statute appears to be toinculcate faith in the efficacy of banking operations andcredibility in transacting business of negotiable instruments.Despite several remedy, Section 138 of the Act is intended toprevent dishonesty on the part of the drawer of negotiableinstrument to draw a cheque without sufficient funds in his cran3302.23-5- account maintained by him in a bank and induces the payeeor holder in due course to act upon it. Therefore, once acheque is drawn by a person of an account maintained by himfor payment of any amount or discharge of liability or debt or isreturned by a bank with endorsement like (I) refer to drawer(ii) exceeds arrangements and (iii) instruction for stoppayment and like other usual endorsement, it amounts todishonour within the meaning of Section 138 of the Act.Therefore, even after issuance of notice if the payee or holderdoes not make the payment within the stipulated period, thestatutory presumption would be of dishonest intentionexposing to criminal liability.” ii)Shri Amit Ashok Thepade and Ors. vs. M/s. Shah NagindasManchharam & Sons and Anr. (2008 ALL MR (Cri.) 1920). Para 3of the same reads as under:- “3.In my view, prima facie, the notice of demand cannotbe faulted since the amount of the cheque has beenmentioned. What the Supreme court has stated is that, if theamount of the dishonoured cheque is not specified in thedemand notice, then it would not meet the legal requirement.However, in the present facts, it appears that the amount forwhich the cheque was drawn has been mentioned in thenotice of demand which also calls upon the petitioners to payother dues as well. The judgments in the case of SumanSethi vs. Ajay K. Churiwal and Anr. reported in (2000) 2 SCC380: [2000 ALL MR (Cri.) 645 (S.C.) and in the case of UnitedCredit Ltd. vs. Agro Sales India & Ors. reported in 2001 ALLMR (Cri) 1492 cited by the learned advocate for therespondents are apt. iii)Ramnarayan Madanlal Khandelwal vs. Proprietor, Daulat cran3302.23-6- Enterprises (2005 ALL MR (Cri.) 3118) Para 7 and 8 of the samereads as under:-“7. All these cases referred to the demand for more amountthan what was mentioned in the cheque. While holding that thedemand notice must be for the amount of cheque and thedemand should not be either for more amount or for lesseramount, the Courts held that what is necessary is a specificdemand. The Court went to the extent of observing that eventhe demand notice in addition to the statutorily envisageddemand may not invalidate the notice. The Court quashed theproceedings only when it was found that the notice in questionis imperfect. Thus from the above cases no ratio to the effectthat a demand for more or less amount than the amount ofcheque is invalid can be deduced.8. If we peruse the notice of demand dated 11-5-1999 inthe present case it would be seen that the petitioner has givenall the particulars of the liability of the respondents, the amountof cheque issued by the respondents, the part payment madeby the respondents and the amount which remained to be paidby them. Thus there is no ambiguity in the notice of demand inthe present case. If the submission of Shri. Patwardhan is to beaccepted then it will have to be held that despite part paymentmade by the respondents, the petitioner was obliged to makedemand of the entire amount of cheque which would obviouslybe improper and impermissible.” iv)Umakant Dattatraya Chakkarwar vs. State of Maharashtraand another, (2018 ALL MR (Cri.) 4577). Para 6 of the same readsas under:- “6. In the present case, according to the complaint filed byrespondent no.2, two cheques dated 21/10/2014 and cran3302.23-7- 27/10/2014 were issued for Rs.80,000/- each in favour ofrespondent no.2 and they were so issued in discharge of thedebt of Rs.1,60,000/- owed by the petitioner to respondentno.2. The complaint also discloses that the first cheque wasdishonoured on 25/10/2014 and the second cheque on28/10/2014. But the fact remains that these cheques wereissued for discharging one and the same debt by thepetitioner, as alleged in the complaint. Therefore, eventhough they were dishonoured on different dates, suchdishonour would not constitute separate causes of action andit cannot be said that two separate offences were socommitted as not to be part of one and the same transaction.The reason being that they were issued for discharging oneand the same debt and to the same party andthat they were founded on the same basic cause of action,which was the debt of Rs.1,60,000/- alleged to be incurred bythe petitioner towards respondent no.2. Under Section 220(1)of the Code of Criminal Procedure, if in one series of actswhich are so connected with each other as to form the sametransaction, more offences than one are committed by thesame person, he may be charged with, and tried at one trialfor, every such offence. As just stated, in the present case,the acts of dishonour of two cheques have been committedby the same person, they have been committed also againstthe same person and they are connected with each other in amanner as to form the same transaction, which was thetransaction of discharge of overall debt of Rs.1,60,000/-.Therefore, I do not see any illegality or arbitrariness orperversity in the impugned order by which the applicationvide Exh.31 filed by the petitioner has been rejected.”6.Perused the notice sent by the complainant to the applicantalongwith the complaint. It is admitted fact that only one chequebearing No. 041484 for an amount of Rs.13,40,000/- is dishonoured. cran3302.23-8- That amount is mentioned in the notice. There is description ofanother cheque in the same notice. So it is composite notice,however, in view of the law laid down by the Hon’ble Supreme courtin the case of Suman Shethi and Upasana Mishra (cited supra) bythe applicant if in a notice while giving the break up of the claim of thecheque amount, interest, damages etc. are separately specified, othersuch claims for interest, costs etc. would be superfluous and theseadditional claims would be severable- and will not invalidate the notice.7.The object of issuing prior notice is to give an opportunity tothe proposed accused to pay that amount. Merely because there isdescription of another cheque in the notice entire notice cannotbecome illegal. It is lack skill of Advocacy. Some times, junioradvocate may commit mistake. Mistake of fact is not illegality. Forthat client shall not suffer. The law cannot be for defeating justice ontechnicalities. Thus the disputed notice is not illegal by which right ofcomplainant/respondent is seriously affected and prejudice is causedto him.8.Considering the facts of this case and ratio laid down in theauthorities cited supra by the advocate for the respondents, there isno any illegality or arbitrariness as well as perversity in issuing thedisputed notice. The legal requirements of issuing notice is thuscomplied with by the respondent.
Arguments
cran3302.23-2- proceedings. 3.Learned advocate for the applicant, in support his contentions,has placed reliance on the following authorities:- i)Babulal Nainmal Jain vs. Khimji Ratansha Dedhia,reported in ALL MR 1998-4-287, in which it is held that “the courtfound considerable force in the contention that when the complaintdiscloses that the cheque was returned not because of any reasonattributable to the defrauding of the credit or to the lack of credit etc.it is illegal on the part of the Magistrate to issue summons on theassumption that prima facie case has been disclosed against thepetitioner under section 138 of the Negotiable Instruments Act.Hence, the complaint was quashed. ii)Arshad Abdul Wahid Qureshi vs. Asif Abdul WahirQureshi and another (Writ Petition No. 558 of 2019, decided on20.4.2023), para 13 of the same reads as under:- “13. It is true that the notice needs to be construed liberally.However, in case the omnibus demand was made howeverthe cheque amount and other amount are severable thennotice can be termed as valid. However, in the facts of thecase, undisputedly cheque amount of five dishonoredcheques is of Rs. 1,88,99,000/- and the demand was madefor payment of Rs. 2,58,04,000/- which exceeds the chequeamount of dishonored cheques.”
Decision
cran3302.23-9- 9.For the reasons stated above and ratio in the authorities citedby the learned advocate for the applicant those are not helpful to theapplicant and therefore, it cannot be relied upon. 10.In view of the above, there is no substance in the grounds ofobjection raised by the applicant for quashing of the said proceedingfiled under Section 138 of Negotiable Instruments Act. Theapplication therefore, deserves to be rejected. It is rejected. (SANJAY A. DESHMUKH, J.) rlj/