Nuti Priyanka vs The State Of Telangana
2025 Latest Caselaw 1893 Tel

Citation : 2025 Latest Caselaw 1893 Tel
Judgement Date : 7 February, 2025

Telangana High Court

Nuti Priyanka vs The State Of Telangana on 7 February, 2025

     THE HONOURABLE SRI JUSTICE K.SURENDER

           CRIMINAL PETITION No.7067 OF 2019

ORDER:

This Criminal Petition is filed by petitioner/accused

seeking to quash the proceedings against her in C.C.No.377

of 2018, on the file of Special Magistrate Court, Karimnagar.

The offence alleged against the petitioner is under Section

138 of the Negotiable Instruments Act, 1881, (for short 'NI

Act').

2. Heard learned counsel for the petitioner and Sri

M.Vivekananda Reddy, learned Assistant Public Prosecutor

for respondent No.1-State. Perused the record.

3. Petitioner is questioning the proceedings in complaint

for the offence under Section 138 of NI Act, which was

initiated by respondent No.2 before the Magistrate Court.

4. According to the complaint, petitioner is well known to

respondent No.2 and due to the said acquaintance, an

amount of Rs.5,00,000/- was obtained as loan by petitioner

from respondent No.2. A cheque for Rs.5,00,000/- was

handed over to respondent No.2 by petitioner. The said

KS,J CRLP_7067_2019

cheque, when presented for realization of amount, the cheque

was returned unpaid on the ground of "insufficient funds".

5. Legal notice was sent to the petitioner, and since

petitioner failed to make good the payment of the cheque

amount, the complaint was filed.

6. The only ground raised by the learned counsel for the

petitioner is that, in the notice sent to the petitioner after the

cheque for Rs.5,00,000/- was returned, the demand was

made only for Rs. 26,000/- to be paid through the D.D. The

said demand of Rs.26,000/- in the notice will not fulfill the

requirement under Section 138 of NI Act, to launch

prosecution.

7. Learned counsel appearing for the petitioner relied on

the judgment of the Hon'ble Supreme Court in Rahul

Builders v. Arihant Fertilizers and Chemicals and

Another 1, wherein, it was held as follows:

"10. Service of a notice, it is trite, is imperative in character for maintaining a complaint. It creates a legal fiction. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main Section would not. Unless a notice is served in conformity with Proviso (b)

(2008) 2 SCC 321

KS,J CRLP_7067_2019

appended to Section 138 of the Act, the complaint petition would not be maintainable. 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 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 where for 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 dishonored 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 bills, i.e., Rs. 8,72,409/-. The notice 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."

8. The Hon'ble Supreme Court was dealing with a case

where notices were sent without specifying the amount. The

notice stated that the amount mentioned on the cheque had

to be paid. The Hon'ble Supreme Court held that such

demand will not fulfill the necessary requirement of 'demand

KS,J CRLP_7067_2019

for payment of amount' by sending notice. In the present

case, demand was made for Rs.26,000/- only. Relying on the

judgment of the Hon'ble Supreme Court in Rahul Builders's

case(1 supra), the legal notice sent to the petitioner is bad in

law, and does not fulfill the requirements of Section 138 of NI

Act.