Madras High Court
M/S. N.P. Murugan vs Arul Exports And Imports on 23 October, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.OP.No.9351 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.10.2024
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Criminal Original Petition No.9351 of 2024
and Crl MP No.6514 of 2024
M/s. N.P. Murugan
Rep by its Partner,
N.P.Murugan, S/o.Perumal,
Having shop at:
No.T/A, 28, 30 Anna Fruit Market,
Koyambedu, Chennai 600 092. ... Petitioner
Vs.
Arul Exports and Imports,
Rep. by its Proprietor,
Mr.A.Arulrajan, S/o. Arputham,
A-608, 6th Floor, KG Signature City,
200 Feet Bypass Road,
Nolambur, Mugappair,
Chennai 600 095.
Having Shop at:
TB-92, Anna Fruit Market,
Koyambedu, Chennai 600 092. ... Respondent
Prayer: Criminal Original Petition is filed under Section 482 of the Code
of Criminal Procedure/ Section 528 of BNSS, praying to call for the
records, relating to in C.C.No.92 of 2024, on the file of the XX
Metropolitan Magistrate Court, Egmore, Allikulam and quash the same.
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1/9
Crl.OP.No.9351 of 2024
For Petitioner : Mr.V.Karthikeyan
For Respondent : Mr.P.Jayaprakash
**********
ORDER
The petition is filed to quash the criminal complaint initiated under
Section 138 of the Negotiable Instrument Act, subject matter of STC
No.92 of 2024.
2. The short point canvassed before this Court to quash the
complaint is that the statutory notice issued for informing return of
cheque for insufficient funds carries an inherent defect which is not
curable and render the complaint void.
3. The learned counsel appearing for the petitioner submits that the
statutory notice issued by the complainant informing return of 10 cheques
is only for a sum of Rs.14,43,500/-, whereas the statutory notice claims
Rs.19,15,266/- within seven days from the date of receipt of the legal
notice and this amount does not whisper whether it is the principal
amount of the cheque and other or inclusive of any incidental expenses or
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charges. Therefore, the defective notice which cannot be cured renders
the complaint not sustainable. In support of his Submission, the learned
counsel appearing for the petitioner would rely upon the following
judgments;
1. SumenSethi vs. Ajay K. Churiwal and
Another, reported in (2000) 2 SCC 380;
2. Rahul Builders v. Arihant Fertilizers &
Chemicals and another, reported in (2008) 2
SCC 321;
3.Vijay GopalaLohar vs.
PandurangRamchandraGhorpade and another,
reported in (2020) 14 SCC 806;
4. K.R.Indira vs. Dr.G.Adinarayana,
reported in (2003) 8 SCC 300; and
5. MahdoomBawaBahrudeenNoorul v.
Kaveri Plastics, in Crl MC. No.2164 of 2022
4. The counsel appearing for the complainant/respondent submits
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that no doubt the total amount claimed in the statutory notice is
mentioned as Rs.19,15,266/-. However, the cheque amount has been
specifically mentioned in the table at paragraph 2 of the statutory notice.
That apart, the complaint which is taken cognizance by the Magistrate is
only in respect of 10 cheques for a sum of Rs.14,32,500/- and the other
incidental charges like Banker charge, Notice charge, Advocate fees,
Court Fees and other expenses have been mentioned separately in the
complaint for the purpose of fixing compensation.
5. The learned counsel appearing for the respondent would submit
that the error whatsoever in the statutory notice has been rectified in the
complaint and therefore, the complaint is sustainable. In this regard the
Hon’ble Surpreme Court as well as the other High Courts in India, had
clarified that if there is any defect in the statutory notice insofar as the
cheque number, amount and the date of cheque, the said defect is
incurable and it will render the complaint under Section 138 of the Act,
void in view of non-compliance of the requirement mentioned in proviso
to Section 138 of the Negotiable Instrument Act.
6. In this case, though in the statutory notice at paragraph 2, the
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complainant has mentioned the details of 10 cheques issued by the
accused and the amount of each cheque, while calling upon the accused
to pay, instead of mentioning the principal amount of the cheque i.e.
Rs.14,32,500/-, he has mentioned Rs.19,15,266/-. It is not explained by
giving the breakup of principal and other incidental expenses. Contrary
to this statutory notice, the complaint is filed for Rs.14,32,500/- towards
principal and an additional Rs.57,000/- towards other incidental charges.
The claim made in the statutory notice does not synchronize with the
complaint.
7. This, according to the Hon’ble Supreme Court, is an incurable
inherent defect and the complaint under Section 138 of the Negotiable
Instrument Act, cannot be sustained based on the said defective notice. It
is profitable to refer to the judgments of Hon’ble Supreme Court in
Sumen Sethi vs. Ajay K. Churiwal and Another, reported in (2000) 2
SCC 380, and Rahul Builders v. Arihant Fertilizers & Chemicals and
another, reported in (2008) 2 SCC 321, wherein the Hon’ble Supreme
Court has held that service of a notice is imperative in character for
maintaining a complaint under Section 138 of the Negotiable Instrument
Act. The operation of Section 138 of the Negotiable Instrument Act is
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limited by the proviso. When the proviso applies, the main Section
would not. Unless a notice is served in conformity with proviso (b)
appended to Section 138 of the Act, the complaint petition would not be
maintainable. The Hon’ble Supreme Court has whether clarified that it is
one thing to say that the demand may not only represent the unpaid
amount under the 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.
8. In Vijay GopalaLohar vs. Pandurang Ramchandra Ghorpade
and another, reported in (2020) 14 SCC 806, relying upon the two
judgments cited above, the Hon’ble Supreme Court has held that the
notice under Section 138 of the Negotiable Instrument Act, can be issued
only for the cheque amount and not for any other amount more than the
cheque amount. Notice issued for the loan amount which is very much
higher than the cheque amount held to be defective by the Hon’ble
Supreme Court, the complaint was quashed.
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9. The case in hand is identical to the facts of the case in Vijay
Gopala Lohar vs. Pandurang Ramchandra Ghorpade and another,
cited supra. The statutory notice is based on the ledger account, whereas
the cheque amount is much less than the ledger balance. This has been
pointed out by the accused at the earlier point of time while replying to
the statutory notice. Despite that the statutory notice not withdrawn and
fresh notice issued for the cheque amount.
10. In the said circumstances, this Court finds that the complaint is
not sustainable, accordingly the Criminal Original Petition to quash is
allowed and the case against the petitioner in C.C.No.92 of 2024, on the
file of the XX Metropolitan Magistrate Court, Egmore, Allikulam, stand
quashed. Consequently, the connected miscellaneous petition is closed.
23.10.2024
Index: Yes/No
Internet: Yes/No
jv
To
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1. The XX Metropolitan Magistrate Court,
Egmore,
Allikulam.
2. The Public Prosecutor,
Madras High Court,
Chennai 600 104.
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Dr.G.JAYACHANDRAN,J.
jv
Criminal Original Petition No.9351 of 2024
23.10.2024
https://www.mhc.tn.gov.in/judis
