Santosh Arora vs Jai Narain Aggarwal & State (Govt. ...
2009 Latest Caselaw 3329 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 Crl. M.C. No. 2875/2009


%                                  Judgment delivered on: 24.08.2009

Santosh Arora                                 ...... Petitioner
                               Through: Mr. Vikas Sharma, Advocate

                          versus

Jai Narain Aggarwal &
State (Govt. of NCT of Delhi)                      ..... Respondents

                               Through: Mr. Sanjay Lao, APP for State

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may              Yes
       be allowed to see the judgment?

2.     To be referred to Reporter or not?                     Yes

3.     Whether the judgment should be reported                Yes
       in the Digest?

KAILASH GAMBHIR, J. (Oral)

*

1. By way of this petition filed under Section 482 Cr.P.C.

the petitioner seeks quashing of the summoning order dated

6.4.2009 passed by the court of Ms. Preeti Aggarwal Gupta,

Senior Civil Judge-cum-Rent Controller, N-W District, Rohini and

for quashing of the complaint i.e. complaint bearing No.

781/2009 filed by the respondent under Section 138 N.I. Act.

2. Brief facts of the case to deal with the contentions

raised by the counsel for the petitioner are as under:-

The respondent No.1 complainant filed a complaint

under Section 138 Negotiable Instruments Act against the

petitioner as the cheques bearing Nos. 382766 & 382767 drawn

on Punjab National Bank, Rohini, Sector-7, Delhi issued by the

petitioner against a loan of Rs.1,80,000/- on 1.8.2008 &

Rs.2,00,000/- on 7.8.2008 were dishonoured on 24.12.2008 and

same was intimated to the respondent No.1 complainant on

26.12.2008. A demand notice was sent to the petitioner on

7.1.2009 and upon failure of the petitioner to pay the amount

mentioned in demand notice, a complaint was made by the

respondent No.1 and the Senior Civil Judge-cum-Rent Controller,

Rohini Courts, issued summons to the petitioner. Aggrieved

with the same present petition has been filed by the petitioner.

3. Counsel appearing for the petitioner submits that the

summoning order dated 6.4.2009 suffers from illegality and

irregularity as the trial court has not appreciated the fact that

the demand notice sent by the respondent/complainant itself

does not meet the requirement of the proviso of Section 138

Negotiable Instruments Act. The contention of the counsel for

the petitioner is that there has to be specific demand based on

the dishonoured cheques and once the particulars of the

cheques are not given in the demand notice no complaint based

on such a demand notice can be filed by the complainant.

Another argument taken by the counsel for the petitioner is that

even in the evidence the correct particulars of the dishonoured

cheques have not been given by the respondent and therefore,

on account of the same also the complaint filed by the

respondent/complainant is liable to be quashed. In support of

his argument counsel for the petitioner placed reliance on the

judgment of this court reported in 2005 [1] JCC [NI] 97

Pramod Vijay Khullar Vs. State and Anr. and the judgment of

the Punjab and Haryana High Court reported in 2003 [1]

JCC [NI] 77 M/s Kumar Rubber Industries Kapurthala Vs.

Sohan Lal.

4. I have heard ld counsel for the petitioner at

considerable length and gone through the record.

5. A perusal of the demand notice sent by the

complainant/respondent no doubt does not give the complete

particulars of the dishonoured cheques. However, in para 1 of

the notice the complainant has pointed out that the petitioner

had borrowed a loan from the complainant in the month of

August i.e. for a sum of Rs.1,80,000/- on 1.8.2008 and

Rs.2,00,000/- on 7.8.2008. The demand notice further states

that the petitioner had issued two cheques for the payment of

the said amount and the said cheques were drawn on Punjab

National Bank, Sector-7, Rohini, Delhi-85. Para 4 of the demand

notice further mentions the fact of the said cheques being

dishonoured after presentation on 24.12.2008 with the remarks

"Funds Insufficient". Although the demand notice should have

been more specific to clearly disclose the exact particulars of

the dishonoured cheques but yet in the absence of the same and

also on account of the fact that the amount of the two cheques

were clearly mentioned with the name of the bank. Therefore,

it cannot be said that requirement as envisaged under the

proviso of Section 138 N.I. Act is not met with

6. Notice cannot be viewed in a hypertechnical manner.

The purpose of giving notice is to bring it to the notice of the

drawer of the cheque that the cheque issued by him has been

dishonoured and also to put him on guard with regard to making

of payment covered by the cheque within the time prescribed so

as to avoid prosecution. If all the necessary particulars, viz.,

date of issue of cheque, amount of cheque, name of the bank on

which cheque is drawn etc. then mere non-mentioning of cheque

number or giving incorrect cheque number would not be fatal.

Depending upon the facts and circumstances of the case, if the

details given by the complainant are sufficient enough to bring it

to the notice of the drawer of cheque that the cheque issued by

him is dishonoured then non-mentioning or wrong mentioning of

cheque number would in itself be not fatal to the case of the

complaint.

7. It is not in dispute that the complainant is the payee

of the said two cheques and he alone had made the demand of

the money of the said cheques by giving a notice in writing. It is

also not in dispute that the petitioner is the drawer of the two

cheques. It is also not in dispute that the amount of loan amount

in respect of the transaction was duly mentioned and it was also

stated that the cheques of the same amount were issued by the

petitioner. The reliance placed by the counsel for the petitioner

on the judgment of this court in Pramod Vijay Khullar (Supra)

is not applicable to the facts of the present case as there the

Court was dealing with a situation where the demand notice

deals with the dues of the company along with the assured

profits and in such situation the court found that the notice sent

by the complainant does not satisfy the requirements of Section

138 N.I. Act but such a situation does not exist here. Another

judgment cited by the counsel for the petitioner in Sohal Lal's

case (Supra) is also not applicable to the facts of the present

case as therein in the complaint itself number of the cheques

were not correctly mentioned and the court held that the

cheques are the very basis and the foundation of the complaint

and in the absence of the same the complaint cannot be held

maintainable. In the present case it is not in dispute that the

complainant has duly mentioned the correct details of the

dishonoured cheques. The complainant has also filed the

original dishonoured cheques on record and therefore, it cannot

be said that the complainant failed to lay the said foundation in

the complaint case. The contention of the counsel that in the

pre-summoning evidence the cheques numbers have been

differently mentioned is also of no substance. There is no merit

in the present petition. The same is dismissed.

August       24, 2009                      KAILASH GAMBHIR, J.
pkv