R Hanumantharaya vs A P Krishnakumar
2021 Latest Caselaw 2252 Kant

                                                              ®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF JUNE 2021

                               BEFORE

THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

  CRIMINAL REVISION PETITION No.56 OF 2019

BETWEEN:

R. Hanumantharaya
Son of Ramadasappa (late)
Aged about 35 years,
Address at:
#300, 8th Main Road,
6th Cross, Saptagiri Layout,
Vidyaranayapura,
Bengaluru - 560 097.
                                                   ..Petitioner
(By Sri. P. Prasanna Kumar, Advocate)

AND:

A.P. Krishnakumar
S/o. A.R. Parameshwaran
Aged about 56 years,
Address at:
20, Skanda, I Main Road,
Balaji Layout, Vidyaranyapura,
Bengaluru - 560097.
                                                 .. Respondent
(By Sri. Sangamesh G. Patil, Advocate)

                                  ****
      This Criminal Revision Petition is filed under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973,
praying to call for the records and set aside the judgment and
order dated 02-01-2019 in Criminal Appeal No.659/2017 passed
by the LXIV Additional City Civil and Sessions Judge (CCH-65) at
                                                        Crl.R.P.No.56/2019
                                      2


Bengaluru; to set aside the judgment and order dated
10-04-2017 passed in C.C.No.3800/2016 by the 18th Additional
Chief Metropolitan Magistrate, Bengaluru and further be pleased
to acquit the petitioner as not guilty from the alleged offence
committed under Section 138 of the N.I. Act and grant such
other reliefs as this Court deems fit to pass in the facts and
circumstances of the case.

      This Criminal Revision Petition having been heard through
Video Conferencing Hearing and reserved on 09-06-2021, coming
on for pronouncement of orders this day, the Court made the
following:

                              ORDER

The present petitioner as the accused was tried by the

Court of the learned XVIII Additional Chief Metropolitan

Magistrate, Bengaluru, (hereinafter for brevity referred to as "the

Trial Court"), in Criminal Case No.3800/2016 for the offence

punishable under Section 138 of the Negotiable Instruments Act,

1881 (hereinafter for brevity referred to as "the N.I. Act") and

was convicted for the said offence by its judgment of conviction

and order on sentence dated 10-04-2017.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the learned LXIV Additional City Civil and

Sessions Judge (CCH-65) at Bengaluru (hereinafter for brevity

referred to as "the Sessions Judge's Court") in Criminal Appeal

No.659/2017.

Crl.R.P.No.56/2019

The appeal was contested by the respondent who was the

complainant in the Trial Court. The Sessions Judge's Court in its

order dated 02-01-2019 dismissed the appeal, confirming the

judgment of conviction and order on sentence passed by the

Trial Court dated 10-04-2017 in C.C.No.3800/2016.

Aggrieved by the said order, the accused has preferred this

revision petition.

2. The summary of the case of the complainant in the Trial

Court was that, the complainant knew the accused and they

were close friends since several years. The accused faced acute

shortage of funds for domestic needs and for his business

purposes. As such, he availed a loan of a sum of `7,75,000/-

from the complainant in the month of March-2014 and agreed to

repay the same within a period of one year. The said loan was

given to the accused by the complainant on various dates

through cheques as shown below:-

         Sl.No.           Date        Cheque No.     Amount
             1        3/4/2014          414830     3,25,000/-
             2        22/5/2014         414836     1,50,000/-
             3       16/10/2014         426799       98,000/-
             4       17/10/2014         426800       98,000/-
             5       10/11/2014         539136       98,000/-
                                                 Crl.R.P.No.56/2019

All the above cheques were drawn on Corporation Bank,

Vidyaranyapura Branch, Bengaluru. In addition to the above, a

sum of `6,000/- was also paid by the complainant to the accused

by way of cash in the month of December-2014. On demand for

repayment of the loan amount given by the complainant, the

accused towards discharge of his liability, issued a cheque

bearing No.155870, in favour of the complainant dated

11-12-2015, for a sum of `7,75,000/-, drawn on the State Bank

of India, Wilson Garden Branch, Bengaluru. The said cheque,

when presented for its realisation by the complainant, came to

be returned unpaid with the banker's endorsement dated

15-12-2015 as "Exceeds arrangement". After the dishonour of

the said cheque, the accused paid a sum of `30,000/- to the

complainant through cheque dated 19-12-2015. Since the

remaining balance amount was not paid by the accused, the

complainant got issued a statutory demand notice to the accused

dated 21-12-2015 which was duly served upon the accused. In

spite of the service of legal notice, the accused failed to repay

the balance amount of the loan amount due to the complainant,

which constrained the complainant to institute a criminal case

against the accused in the Trial Court in C.C.No.3800/2016.

Crl.R.P.No.56/2019

3. The accused appeared in the Trial Court and contested

the matter through his counsel. He pleaded not guilty and

claimed to be tried, as such, the Trial Court proceeded to record

the evidence wherein, to prove his case, the complainant got

himself examined as PW-1 and got marked documents from

Exs.P-1 to P-8 and closed his side. The accused got examined

one Sri.D. Krishnappa, but did not produce any documents in

his support.

4. The Trial Court after recording the evidence led before it

and hearing both side, by its impugned judgment dated

10-04-2017 convicted the accused for the offence punishable

under Section 138 of the N.I. Act and sentenced him to pay total

fine amount of a sum of `8,30,000/-, in default, to undergo

simple imprisonment for a period of one year. Challenging the

said judgment of conviction passed by the Trial Court, the

accused preferred an appeal in Criminal Appeal No.659/2017

before the learned Sessions Judge's Court, which after hearing

both side, by its impugned judgment dated 02-01-2019

dismissed the appeal filed by the accused, while confirming the

impugned judgment of conviction and order on sentence passed

by the Trial Court. Being aggrieved by the judgments of Crl.R.P.No.56/2019

conviction and order on sentence, the accused has preferred this

revision petition.

5. Learned counsel for the revision petitioner and learned

counsel for the respondent/complainant are appearing through

video conference.

L

6. The Trial Court and Sessions Judge's Court's records

were called for and the same are placed before this Court.

7. Perused the materials placed before this Court including

the Trial Court and Sessions Judge's Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

9. After hearing the learned counsels for the parties, the

only point that arise for my consideration in this revision petition

is:

Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court?

Crl.R.P.No.56/2019

10. It is not in dispute that the accused and complainant

were known to each other. The complainant, as PW-1, in his

cross-examination has stated that, the accused was his colleague

while he was working in Kamadhenu Sowharda Credit Co-

operative Society at Vidyaranyapura in the year 2011. It is also

not in dispute that the accused was availing loan from the

complainant. In that regard, a suggestion was made to PW-1 in

his cross-examination from the accused's side that, the accused

was availing loan from the complainant only through crossed

cheques. From the accused's side, one Sri. D. Krishnappa was

examined as DW-1, who has stated that at the instruction of the

complainant, he has filled a blank cheque. In his cross-

examination, he admitted that, he is the friend of the accused

and formerly his colleague too. The said evidence of DW-1

(D. Krishnappa) even if it is taken as true, could only show that

the recitals in Ex.P-1 were filled by DW-1 (Sri.D. Krishnappa) at

the request of the complainant (PW-1). However, the evidence

of DW-1 does not throw any light with respect to the alleged loan

transactions between the complainant and the accused.

11. The accused has not denied that the cheque at Ex.P-1

is drawn by him and Ex.P-1(a) is his signature. He has also not Crl.R.P.No.56/2019

denied or disputed that the said cheque came to be returned

unpaid when presented for its realisation by the complainant and

the reason for dishonour of the cheque was "Exceeds

arrangement". The accused has also not denied that the

complainant got issued a legal notice as per Ex.P-3 which is

further evidenced by the postal receipt at Ex.P-4. Even

according to the complainant, he did not receive the postal

acknowledgement showing the receipt of the said legal notice by

the accused. However, the complainant's query with the postal

authority through his letter at Ex.P-5 shows that, the said article

was delivered to the addressee (accused) as evidenced in the

postal track status at Ex.P-6. Admittedly, the accused also sent

his reply to the notice as per Ex.P-7. In the said reply, the

accused had denied that he had availed loan of a sum of

`7,75,000/- from the complainant. However, he has stated that

the loan availed by him was only for a sum of `2,00,000/- under

various instalments, in which regard, the complainant had

collected the subject matter cheque as a security thereof. The

accused had further taken a contention that, he had cleared the

entire loan and also had paid a sum of `30,000/- vide cheque

No.374873 dated 19-12-2015. With this, he has denied the Crl.R.P.No.56/2019

claim made by the complainant. However, the fact remains that

the cheque at Ex.P-1 drawn by the accused in favour of the

complainant was returned unpaid for which, demanding the

payment, the complainant had got issued a legal notice.

12. Learned counsel for the revision petitioner in his

argument submitted that, he would not dispute that the accused

was the drawer of the cheque at Ex.P-1 which came to be

dishonoured for the reason of "Exceeds arrangement". He

further stated that the notice, a copy of which is marked at

Ex.P-3, was served upon the accused, wherein the complainant

had demanded the payment of money. However, his only point

of argument was that, the said demand notice issued by the

complainant was not a valid notice under Section 138 (b) of the

N.I. Act, as such, the criminal case instituted by the complainant

would not survive. However, the Trial Court and the Sessions

Judge's Court have ignored the said fact.

13. According to the learned counsel for the revision

petitioner, even though the cheque at Ex.P-1 is for a sum of

`7,75,000/-, however, admittedly, before the complainant had

issued a legal notice as per Ex.P-3, the accused had made a part Crl.R.P.No.56/2019

payment of a sum of `30,000/- which is admitted by the

complainant in his notice itself. However, as per Section 138 of

the N.I. Act, the demand for the amount was to be made for the

entire cheque amount, otherwise, the notice cannot be

considered as a valid notice in the eye of law.

In his support, learned counsel relied upon an order of this

Court dated 31-01-2019 in the case of Sami Labs Limited Vs.

Mr. M.V. Joseph reported in ILR 2019 KAR 1953, a judgment of

the Hon'ble Apex Court in the case of Rahul Builders Vs. Arihant

Fertilizers and Chemicals and another reported in (2008) 2

Supreme Court Cases 321 and a judgment of the Calcutta High

Court in the case of Gopa Debi Ojha Vs. Surjit Paul and another

reported in 1995 SCC OnLine Cal 139.

14. Learned counsel for the respondent/complainant in his

argument submitted that, though the law may expect that, the notice

was required to be given for the full amount of the cheque but dharma

shows that justice is in favour of the complainant. Further, he

submitted that the object of the Negotiable Instruments Act is to

provide for a single forum and single proceeding for enforcement of

criminal liability on account of dishonor of the cheque and also Crl.R.P.No.56/2019

for enforcement of the civil liability for realisation of the amount

due and payable by the drawer of the cheque thereby obviating

the need for the creditor to move two different fora for the relief.

In such an event, the accused was liable to pay the amount due

to him.

15. Section 138 of the Negotiable Instruments Act, 1881

reads as below:

" 138. Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque 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 provisions of this Act, be punished with imprisonment for [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 cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and Crl.R.P.No.56/2019

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.

16. According to the learned counsel for the revision

petitioner, though a legal notice as per Ex.P-3 was issued by the

complainant to the accused, however, the amount demanded

therein was not the cheque amount, but it was a lesser amount

than the cheque amount, as such, the notice becomes invalid

under Section 138(b) of the N.I. Act. According to the learned

counsel, the notice ought to have been given exactly for the

cheque amount, demanding the cheque amount, neither less nor

more, since the notice contemplated under Section 138(b) of the

N.I. Act says that, the demand must be made for the payment of

the 'said amount of money', which amount is the cheque amount

which is presented to the Bank within time as contemplated

under Section 138(a) of the N.I. Act.

In his support, he relied upon the judgments in Rahul

Builders' case (supra) and Gopa Debi Ojha's case (supra).

Crl.R.P.No.56/2019

17. In Rahul Builders' case (supra), according to the

complainant, the accused was liable to pay him a sum of

`8,72,409/-, however, he had issued a cheque for a sum of

`1,00,000/-. The said cheque also when presented for

realisation, came to be returned un-passed by the bank

authorities stating that the account of the drawer had already

been closed. The complainant issued a notice, which stated as

below:

"...Your Cheque No.693336 dated 30-4-2000 for Rs.1,00,000 has also been returned unpassed by the Bank authorities with the plea that A/c No.1461 has already been closed. hence, the undersigned is now free to take up any legal step against you to get the amount of my pending bills.

In view of the above, you are requested to remit the payment of my pending bills within 10 days from the date of receipt of this letter otherwise suitable action as deemed fit will be taken against you."

The complainant thereafter filed a complaint in the Court

accusing the respondent of committing the offence punishable

under Section 138 of the N.I. Act. The respondent's application

for rejection of the complaint on the ground that, the notice

issued by the complainant (appellant) was not a valid one, came

to be rejected. A revision application filed there against before

the District and Sessions Judge, Neemuch, was also dismissed.

Crl.R.P.No.56/2019

However, the High Court in exercise of its jurisdiction under

Section 482 of the Code of Criminal Procedure, 1973, quashed

the criminal proceedings holding that the complainant by reason

of the said notice having demanded a sum of `8,72,409/- as

against the cheque which was for a sum of `1,00,000/- only, the

notice was vague and did not serve the statutory requirements

of provisos (b) and (c) of Section 138 of the N.I. Act. Aggrieved

by the same, the complainant had approached the Hon'ble Apex

Court by filing a criminal appeal.

The Hon'ble Apex Court in para-10 of its judgment was

pleased to observe as below:

10. ......The Parliament while enacting the said provision 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 No. 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 Crl.R.P.No.56/2019

bills, i.e., Rs. 8,72,409/-. The noticee was to respond to the said demand. Pursuant thereto, it was to offer the entire sum of Rs. 8,72,409/-. No demand was made upon it to pay the said sum of Rs. 1,00,000/- which was tendered to the complainant by cheque dated 30.04.2000. What was, therefore, demanded was the entire sum and not a part of it."

In the very same judgment, the Hon'ble Apex Court in

para-11 of its judgment referred to its previous judgment in the

case of Suman Sethi Vs. Ajay K. Churiwal reported in (2000) 2

SCC 380, where it was held that it was a settled principle of law

that the notice has to be read as a whole. In the notice, the

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. With the said

observation, it held that the notice in question was imperfect,

and demand for the amount covered by the bounced cheque was

conspicuously absent in the notice and that it amounts to making

no demand for payment of the cheque amount. As such, the

impugned judgment of the High Court could not be faulted. With

this, the appeal stood dismissed.

18. It is relying upon the said judgment, learned counsel

for the revision petitioner contended that the words 'said Crl.R.P.No.56/2019

amount' used in Section 138(b) of the N.I. Act must be the

cheque amount, neither less nor more, whereas in the instant

case, since the amount demanded in the notice was lesser than

the cheque amount, it does not amount to compliance of service

of issuance of notice under Section 138(b) of the N.I. Act.

19. Learned counsel for the revision petitioner also relied

upon the judgment in Gopa Debi Ojha's case (supra) wherein,

considering the fact that the dis-honoured cheque was for an

amount of `5,79,000/-, whereas the demand made in the legal

notice was for a sum of `6,50,000/-, the Calcutta High Court was

pleased to hold at paragraphs 21 and 22 as below:-

"21. So the wording in clause (b) to the proviso of Section 138 "a demand for payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque", refers to the cheque amount and not any other amount either smaller or higher than the amount mentioned in the cheque. So the notice need to be given demanding the cheque amount. If any bigger amount or smaller amount than the cheque amount is mentioned, in my view that will create difficulty to the drawee to know how much amount he has to pay or she has to pay, as the case may be, and that makes the notice insufficient and vague and the notice will become illegal. This view has found support in a single Bench decision of this court in the case of Arcon Engineering Company Private Limited (supra).

22. In the instant case the cheque amount was 5,79,000/- whereas a demand was made from the petitioner herein by the opposite party No.1 for a sum of Rs.6,50,000/-. That was not the cheque amount, and as Crl.R.P.No.56/2019

such, the notice is vague and insufficient and the said notice cannot be sustained in law."

20. In Rahul Builders' case (supra), admittedly, the

amount of the cheque which was dis-honoured by the banker

was for a sum of `1,00,000/- whereas the demand made in the

legal notice was for the payment of a sum of `8,72,409/-, which,

according to the complainant, was the total outstanding liability

from the accused towards him. However, nowhere the notice

mentioned that the excess amount of `7,72,409/- demanded by

the complainant was towards which amount. The notice did not

demand the cheque amount nor gave the details for claiming the

additional amount. Thus, the Hon'ble Apex Court called the said

notice as omnibus notice, without specifying as to what was the

amount due under the dis-honoured cheque, as such, it would

not subserve the requirement of law. It is in that context, the

Hon'ble Apex Court held that the demand notice was not for the

'said amount' which was the cheque amount.

In the very same judgment, the Hon'ble Apex Court has

relied upon Suman Sethi's case (supra) and extracted paragraph

No.8 of the said judgment in which paragraph, the Hon'ble Apex

Court has also held that if in a notice, while giving the break-up Crl.R.P.No.56/2019

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. Thus, by making a

higher demand in a notice sent under Section 138(b) of the N.I.

Act, would not by itself invalidate the notice provided, the details

of the claim towards the additional amounts are specifically

mentioned by the complainant. In such a case, if the accused

upon whom the notice is issued pays the cheque amount, though

it may be lesser than the total amount demanded in the legal

notice, he may not be amenable for prosecution under Section

138 of the N.I. Act. However in Rahul builders' case (supra),

the notice issued to the accused since was for a higher amount

than the cheque amount, and since it did not mention as to what

that default amount was and how it was payable by the accused

to the complainant, and since the demand for the amount

covered by the bounced cheque was conspicuously absent in the

notice issued, the Hon'ble Apex Court held that, the same is not

a valid notice under Section 138(b) of the N.I. Act.

21. In the instant case, the legal notice issued to the

accused by the complainant, a copy of which is marked at Ex.P-3 Crl.R.P.No.56/2019

has, at the first instance mentioned that, the cheque amount was

for a sum of `7,75,000/- and that it was returned unpaid when

presented for its realisation with the banker's endorsement,

"Exceeds arrangement/funds insufficient". It further says that,

thereafter, the complainant waited for considerable length of

time. After that, the accused gave him part of the amount by

way of cheque for a sum of `30,000/- instead of `7,75,000/- and

that the said cheque for a sum of `30,000/- was honoured.

However, the accused did not pay the remaining balance

amount. Stating so and giving the details of the reduction of the

liability of the accused towards him, the complainant proceeded

further to demand from the accused the amount that was due

from him in that regard.

In para-2 of the legal notice at Ex.P-3, on behalf of the

complainant, it has been stated as below:

"2. In view of the facts and circumstance explained, I hereby call upon you on behalf of my client, to pay the aforesaid a sum of Rs.7,75,000/- Rupees Seven lakhs seventy five thousand only) out of Rs.30,000/- together with interest at the rate of 2# per month from the date till payment along with damages and compensation of Rs.5000/- within 15 days from the date of the receipt of this notice failing which...."

Crl.R.P.No.56/2019

Thus, the complainant has clearly stated in his notice that

the cheque amount was `7,75,000/-, however, in view of the fact

that, after the dishonour of the cheque and prior to the issuance

of notice, since a part payment of `30,000/- is made by the

accused, after deducting the same, the remaining amount what

is due from the accused was required to be payable to the

complainant within fifteen days. Therefore, the notice is clear as

to what is the cheque amount that is dis-honoured and how

much of the amount was paid as a part payment of the total

amount due by the accused and it was only thereafter the

balance amount was demanded.

22. The very object of the notice under Section 138 of the

N.I. Act discussed by the Hon'ble Apex Court in the case of

Central Bank of India Vs. Saxons Farms and others reported in

(1999) 8 Supreme Court Cases 221 which was referred in

Suman Sethi's case (supra) also, is to give a chance to the

drawer of the cheque to rectify his omission. Though in the

notice, the demand for compensation, interest, cost, etc. is also

made, the drawer will be absolved from his liability under Section

138 of the N.I. Act, if he meets the demand of the amount

covered by the cheque for which he was aware, within fifteen Crl.R.P.No.56/2019

days from the date of the receipt of the notice or before the

complaint is filed.

23. Therefore, when the complainant in the instant case,

has, apart from bringing to the notice of the accused about the

dishonour of the cheque for a particular sum of money has also

acknowledged the receipt of a part of the cheque amount

subsequent to its dishonour and it is only thereafter proceeded to

claim the actual amount that was due, which act of the

complainant cannot be called as against the object of the notice

as contemplated under Section 138 of the N.I. Act. Therefore,

in the present circumstance, the notice cannot be called as

imperfect or invalid, merely because it was for a smaller amount

than the actual amount mentioned in the dis-honoured cheque.

24. Learned Counsel for the revision petitioner also relied

upon the decision of this Court in the case of Sami Labs Limited

Vs. Mr. M.V. Joseph (supra) and submitted that this Court, in a

similar circumstance, was pleased to hold that the notice was

invalid, as such, Section 138 of the N.I. Act was not applicable.

In the said Sami Labs Limited case (supra), the housing

loan disbursed to the accused in full was a sum of `5,00,000/-

Crl.R.P.No.56/2019

and it was established that a part of it had already been repaid

by the accused to the complainant - Company, as such, the total

outstanding liability was in a sum lesser than the cheque

amount. It was under that facts and circumstances of the case,

this Court held that, when any sum issued in the cheque was for

higher amount than the outstanding liability and if that excess

amount is also not towards any interest, cost, penalty, etc., as

such, remains unexplained, then, Section 138 of the N.I. Act

cannot be said to be applicable.

25. In the instant case, admittedly, it is not a case where

the cheque issued was for a higher amount than the outstanding

liability. On the contrary, according to the complainant, the

cheque issued was for an outstanding liability of a sum of

`7,75,000/-. However, subsequent to the dishonour of the

cheque, a part payment of a sum of `30,000/- was made by the

accused through cheque. As such, as on the date of the

issuance of the legal notice, the legally enforceable debt

outstanding in favour of the complainant from the accused was a

sum lesser than the cheque amount. In such a circumstance, if

the payee of the cheque who is the complainant herein is

expected to make a demand for a higher amount than what Crl.R.P.No.56/2019

actually the amount was due, merely because the dishonoured

cheque amount is a higher amount, then, it may result in the

payee or the complainant getting himself unjustly enriched at the

cost of the accused. Since such an unjust enrichment is not

permissible under law, nothing wrong could be identified in a

legal notice issued demanding lesser amount than the

dishonoured cheque amount, that too, after giving the details of

the receipt of the part payment subsequent to the dishonour of

the cheque, thus, showing the reason for demanding lesser

amount than the actual cheque amount.

26. In a similar circumstance, the Delhi High Court, in the

case of M/s.Alliance Infrastructure Project Pvt.Ltd. and Ors. Vs.

Vinay Mittal reported in 2010 (2) Crimes 672 (Del.) was pleased

to hold that, notice of demand which requires the drawer of the

cheque to make payments of the whole of cheque amount,

despite receiving the substantial amount against that very

cheque, much before the issuance of the notice was illegal and

invalid.

27. Therefore, I am of the view that, notice issued by the

complainant as per Exhibit P-3, in the instant case, cannot be Crl.R.P.No.56/2019

called as bad in the eye of law, more particularly, under Section

138 (b) of the N.I. Act. As such, the only argument of the

learned counsel for the revision petitioner on the said point is not

acceptable.

On the other hand, since the evidence of PW-1 supported

by the documentary evidence at Exhibits P-1 to P-8 and the

undisputed fact, as observed above, would clearly go to show that,

the accused, as a drawer, has issued a cheque at Exhibit P-1 in

favour of the complainant and that the said cheque came to be

dishonoured for the reason "Exceeds arrangement" when

presented for its realisation and also in view of the fact that the

complainant has demanded the payment of the outstanding liability

after giving deduction of subsequent part payment made by the

accused and admittedly, since the accused has not paid the said

demanded amount and also in view of the fact that, the

defence of the accused that the complainant was getting the

cheques drawn upon his account through the accused and

was misusing the Society's funds for his purposes could not succeed

in rebutting the presumption formed in favour of the

complainant, the judgment of conviction passed by the Trial Court

which was further confirmed by the Sessions Judge's

Court cannot be held as illegal or perverse.

Crl.R.P.No.56/2019

28. Since the quantum of sentence ordered by the Trial

Court is also proportionate to the gravity of the proven guilt

against the accused, I do not find any reason in interfering in the

impugned judgment of conviction and order on sentence, which

was confirmed by the learned Sessions Judge's Court.

Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition stands dismissed as devoid

of any merit.

Registry to transmit a copy of this order to both the Trial

Court and also to the Sessions Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE

BMV*