Ashok Kumar Singh vs The State Of Jharkhand
2021 Latest Caselaw 3901 Jhar

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                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                               Cr. Revision No. 523 of 2009

               Ashok Kumar Singh, S/o late Suraj Prakash Singh, Proprietor Avin
               Enterprises, Resident of Lal Bhavan, Saharpura, P.S.- Sindri,
               District -Dhanbad                      ...     ...      Petitioner
                                     Versus
            1. The State of Jharkhand
            2. Sanjay Kumar Singh, aged about 25 years, s/o Rakesh Kumar
               Singh, resident of Loharbasti, Near I. M. Type Colony, P.S.
               Baliapur, District-Dhanbad. ...       ...         Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through: Video Conferencing

11/20.10.2021

1. Heard Mr. Mahesh Tiwari, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Kalyan Banerjee, learned counsel appearing on behalf of opposite party No.-2.

3. Nobody appears on behalf of the opposite party-State.

4. The present criminal revision application has been filed by the petitioner for setting-aside the judgement dated 25.03.2009 passed by the learned Additional Sessions Judge, Fast Track Court No.-1, Dhanbad in Criminal Appeal No. 170/08, whereby the learned appellate court has been pleased to set-aside the order of sentence and judgement of conviction dated 12.06.2008 passed in Complaint Petition No. 2086/04 by the learned Judicial Magistrate, 1st Class, Dhanbad.

5. The learned trial court had convicted the accused (opposite party No.-2 herein) for offence under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment of six months and also to pay a fine of Rs. 1,84,370/-, which was equivalent to the cheque amount and in default of payment of fine, the opposite party No.-2 was further directed to undergo simple imprisonment for one month.

Arguments on behalf of the petitioner

6. Learned counsel appearing on behalf of the petitioner submits that the impugned judgment passed by the learned appellate court, is

perverse and is fit to be set-aside. He submits that the judgment passed by the learned trial court is a well-reasoned judgment and the learned appellate court has set-aside the same on the ground that the notice regarding bouncing of cheque was not in accordance with proviso (b) of Section 138 of the Negotiable Instruments Act and that the notice itself was defective. The learned counsel submits that the notice regarding bouncing of cheque is required to be read as a whole and the learned appellate court has selectively read the notice to hold it defective. The learned counsel further submits that upon perusal of the notice, it is apparent that an agreement was entered into between the parties and pursuant to the agreement, the cheque was issued and the cheque bounced. In spite of notice regarding bouncing of the cheque, the opposite party No.-2 did not pay the cheque amount and consequently, the complaint case was filed. The learned counsel has also submitted that before the learned trial court, no ground was taken that the notice itself was defective and the opposite party No.-2 had taken a ground that the cheque itself was lost. The learned counsel for the petitioner has referred to the notice which was marked as Ext.-7 before the learned court below.

7. The learned counsel has also referred to a judgment passed by the Hon'ble Supreme Court reported in 2008 (1) Eastern Criminal Cases 6 (SC) (M/s. Rahul Builders vs. Arihant Fertilizers & Chemicals and Others) and has referred to paragraph-11 of the said judgment, which in turn refers to another judgment passed by the Hon'ble Supreme Court reported in (2000) 2 SCC 380 to submit that the notice is to be read as a whole and it is submitted that upon correct reading of the notice, the basic requirement of notice under section 138 of the Negotiable Instruments Act is fulfilled .

Arguments on behalf of opposite party No.-2

8. Learned counsel appearing on behalf of opposite party No.-2, on the other hand, has opposed the prayer and submitted that upon perusal of the entire notice, no demand for payment of the cheque amount was ever made by the petitioner in the notice, rather in the notice, the petitioner had asked the opposite party No.-2 just to meet the petitioner within a period of ten days. He further submits that the

notice refers to one cheque bearing Cheque No. 794335 amounting to Rs. 5,000/- which was dated 17.10.2004 and the complaint case was filed in relation to bouncing of cheque bearing No. 0689316 dated 05.11.2004, which was amounting to Rs. 1,84,370/-. He submits that the notice itself being vague, the impugned order passed by the learned appellate court acquitting the opposite party No.-2 does not call for any interference as the same does not suffer from any illegality or perversity.

Findings of this Court

9. After hearing the learned counsel for the parties, this Court finds that the complaint case was filed by the petitioner under section 406/420/120B IPC and also under section 138 of the Negotiable Instruments Act, wherein it was stated that there was business relationship between the petitioner and the accused and the dues payable to the petitioner rose to Rs. 1,84,370/- for which an agreement to pay was also entered between the parties. The opposite party no. 2 gave a post-dated cheque for the entire amount and also gave a cheque dated 17.10.2004 for an amount of Rs.5000/- and both the cheques bounced upon presentation. Cheque No. 0689316 dated 05.11.2004 for an amount of Rs. 1,84,370/-and cheque bearing No. 794335 dated 17.10.2004 for an amount of Rs. 5,000/-, which were marked as Ext.-1 and 3 respectively. After bouncing of the cheque, legal notice dated 04.12.2004 was issued which has been marked as exhibit-7 and thereafter the complaint case was filed. The learned trial court after considering the materials on record recorded its finding at Para-9 of the trial court's judgment, which is quoted as under: -

"From the discussions made above, it becomes clear that the accused had issued the cheque in discharge of his debt or liability. It further appears that the cheque was dated 05.11.2004 and the same was presented in Bank on same date. The cheque got dishonoured on 16.11.2004 and information regarding dishonor of cheque due to insufficiency of fund has been received by the complainant on 02.12.2004. Upon coming to know about the dishonour of the cheque the complainant got a demand notice served through his lawyer on 04.12.2004. Though the notice had been sent to the correct address the accused did not receive the same and neither paid the cheque amount within 15 days. The instant case has been

filed on 24.12.2004, as such the present case has been filed within time after fulfilling all formalities."

10. The learned trial court convicted the opposite party no. 2 under section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for six months with a fine of Rs. 1,84,370/- which was equivalent to the cheque amount of cheque bearing No. 0689316 dated 05.11.2004.

11. So far as learned appellate court is concerned, it was argued before the learned appellate court that the notice which was issued was bad in the eyes of law as the same was not in terms of Section 138 of the Negotiable Instruments Act. Considering this aspect of the matter, the learned appellate court found that the notice itself was defective and recorded its finding at para-3 of the judgment, that there was no demand to pay the cheque amount and at the last para of the notice, the concerned advocate issuing the notice advised the opposite party no. 2 to meet the petitioner within 10 days of the receipt of notice otherwise he has the direction to proceed with case. The learned appellate court held that from perusal of the said operative portion of the Ext. 7, it is clear that the notice does not disclose regarding the payment of the cheque amount within the period of 15 days after receipt of the notice and accordingly, the said notice is not according to Proviso (b) of Section 138 of the N.I. Act and the notice itself is defective and hence the complaint was not maintainable. The learned appellate court held that the case under section 138 of the Negotiable Instruments Act is not made out on the basis of omnibus notice without specifying as to what was the amount due under the dishonored cheque and without specifying in the notice that the payment of the said amount should be made within 15 days after receipt of the notice. These two facts were found missing in the notice Ext. 7 and hence Ext. 7 was not according to proviso (b) of Section 138 of the Negotiable Instruments Act and accordingly, set-aside the judgment passed by the learned trial court and allowed the appeal.

12. This Court finds that the bone of contention between the parties is as to whether the notice sent by the petitioner to the opposite party No.-2 in connection with the cheque was in terms of Section 138 of

the Negotiable Instruments Act or not. Both the learned counsels have read the notice dated 04.12.2004 (exhibit-7). Upon perusal of the said notice, this Court also finds that the complainant had made an allegation that since beginning, the father of the opposite party No.-2 wanted to cheat the complainant and had mis-utilized the money to his benefit and even hampered the business of the complainant. This Court further finds that the details of only one of the cheques i.e., cheque No. 794335 dated 17.10.2004 amounting to Rs. 5,000/- was mentioned in the notice and so far as other cheque bearing No. 0689316 dated 05.11.2004 is concerned, it was simply stated that the same had bounced, but no further details of that cheque was given in the notice and at the end of the notice, it was mentioned as follows: -

"At last, I will advise you to meet my client within ten days after receipt of this notice, otherwise I have the direction to proceed with case/s."

13. Upon perusal of the entire notice, this Court finds that no demand was ever made by the petitioner asking the opposite party no. 2 to pay the cheque amount/amounts and accordingly, the learned appellate court has rightly held that the notice issued in the present case was not in conformity with the provision of Section 138 of the Negotiable Instruments Act.

14. In the judgment passed by the Hon'ble Supreme Court reported in (2000) 2 SCC 380 (Suman Sethi vs. Ajay K. Churiwal and Another), it was held that it is a well-settled principle of law that the notice has to be read as a whole and in the notice, demand has to be made for the "said amount" i.e. the cheque amount and if no such demand is made, the notice no doubt would fall short of the legal requirement. The question which was to be examined in the said case was where in addition to the "said amount", there is also a claim by way of interest, cost etc., whether the notice is bad. The Hon'ble Supreme Court held that this will depend on the language of the notice and if the notice gives break up of the claim the cheque amount, interest, damages etc., then the other amounts would be severable and will not invalidate the notice. The Hon'ble Supreme Court also referred to another judgment passed in the case of Central Bank of

India vs. Saxons Farms, wherein it was held that the object of the notice is to give a chance to the drawer of the cheque to rectify his omission. The aforesaid judgment was relied upon in the judgment cited by the petitioner reported in 2008 (10 East. Cr. C. 6 (SC) (supra), wherein ultimately it was found that no demand was made for payment of the "cheque amount" and accordingly, the Hon'ble Supreme Court upheld the order of the High Court quashing the criminal case in exercise of powers under Section 482 of Cr.P.C. and dismissed the appeal.

15. This Court is of the considered view that the aforesaid judgments do not help the petitioner in any manner, rather, the ratio of the judgement is in favour of the opposite party No.-2. The law is well-settled that the complaint under Section 138 of the Negotiable Instruments Act is not maintainable, if no demand was made for payment of the cheque amount in the notice. In the present case also, the notice i.e., Ext.-7, even when read as a whole, does not reflect any demand for making payment of any amount much less the cheque amount.

16. Accordingly, the judgment passed by the learned appellate court holding that complaint itself was not maintainable as the notice was not in accordance with the provisions of Section 138 of the Negotiable Instruments Act, is neither perverse nor illegal and the same does not call for any interference. In the aforesaid view of the matter, this Court does not find any merit in the present criminal revision application, which is accordingly dismissed.

17. Pending interlocutory application, if any, is closed.

18. Let the lower court records be sent back to the court concerned.

19. Let a copy of this order be communicated to the learned court below through 'e-mail/FAX'.

(Anubha Rawat Choudhary, J.) Mukul