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2001 DIGILAW 1484 (AP)

E. MADHU v. State Of A. P.

2001-11-19

T.CH.SURYA RAO

body2001
T. SURYA RAO, J. ( 1 ) SINCE the parties are the same and as common question of law is involved, both these petitions can be disposed of together. ( 2 ) THE petitioners herein are the accused 1 to 3 in CC No. 46 of 2001 and 47 of 2001 on the file of the VI Additional judicial Magistrate of First Class, Guntur. The second respondent herein is the complainant in both the cases. The petitioners seek to quash the proceedings initiated against them in the above two cases invoking the inherent jurisdiction of this Court under section 482 of the Code of Criminal procedure ( the Code for brevity ). ( 3 ) THE factual matrix may be set forth at the outset for brevity and better understanding of the matter thus: the second respondent herein is the complainant. The complaint was filed under section 138 of the Negotiable Instrument act mentioning inter alia, that the complainant-firm is doing business in procuring the milk and supplying the same to the needy; and that the accused-firm has also been doing business in selling milk with its office at Chennai; and that during the course of business in terms of the agreement between the complainant and the accused inter se the complainant supplied milk and the accused fell in dues. On the demands made by the complainant, the accused issued as many as 20 cheques on different dates as detailed, inter alia, in the complaint for various amounts which are the subject-matter of CC No. 47 of 2001 and a cheque bearing No. 988534 dated 22-5-2000 for an amount of Rs. 1,42,561/- which is the subject-matter of CC No. 46 of 2001. The complainant presented 20 cheques for collection through its Banker, namely, Vijaya bank, Tenali Branch on various dates before the expiry of the period of six months and on 20-11-2000 the cheque dated 22-5-2000 with the Bank and all the cheques were dishonoured by the Banker of the accused at chennai with the endorsement "payment stopped by drawer" under various memos, issued by the Banker. On receipt of those memos from the drawer s Banker, the complainant Banker through its letters dated 14-12-2000, 19-12-2000, and 29-11-2000 returned those cheques to the complainant. On receipt of those memos from the drawer s Banker, the complainant Banker through its letters dated 14-12-2000, 19-12-2000, and 29-11-2000 returned those cheques to the complainant. On receipt of the above dishonoured cheques, the complainant issued requisite legal notices dated 9-12-2000 in CC No. 46 of 2001 and dated 27-12-2000 in CC No. 47 of 2001 within 15 days from the date of receipt of the intimation from the Banker calling upon the accused to pay the amount covered by those cheques within 15 days from the date of receipt of those notices. The notice-dated 9-12-2000 was received by the accused under an acknowledgment- dated 10-12-2000 and the notice-dated 27-12-2000 was received by the accused and in both the cases the accused kept quite without giving any reply. The complainant, therefore, filed two complaints against the accused, namely, the firm, its Managing director and Director respectively. The petitioners, as aforesaid, seek to quash these proceedings in both the Criminal cases filed against them. ( 4 ) SRI C. Nageshwara Rao, learned Counsel appearing for the petitioners, contends that the legal notices issued in these cases do not contain the amounts covered by the dishonoured cheques and, therefore, they suffer from the legal infirmity and cannot constitute valid legal notices. The learned Counsel further contends that the Court at Guntur has no territorial jurisdiction to entertain the said complaints inasmuch as the cheques were drawn admittedly at Chennai. The learned Counsel further contends that in CC No. 47 of 2001 for all the 20 dishonoured cheques a single complaint was filed instead of filing independent complaints inasmuch as separate cause of action has arisen in respect of each cheque and therefore it is bad. ( 5 ) SRI C. Padmanabha Reddy, learned senior Counsel appearing for the second respondent-complainant, countering the said arguments, contends that there is nothing illegal in filing a single complaint for all the 20 dishonured cheques. The learned senior counsel further contends that the notices issued in these cases are not defective for want of the particulars regarding the amounts covered by the cheques. ( 6 ) ALTHOUGH the question as regards the territorial jurisdiction has been raised, the learned Counsel appearing for the petitioners has not pressed the same in view of the settled legal position on the point. However, he was vehement only as regards the other two points raised. ( 6 ) ALTHOUGH the question as regards the territorial jurisdiction has been raised, the learned Counsel appearing for the petitioners has not pressed the same in view of the settled legal position on the point. However, he was vehement only as regards the other two points raised. In view of the above contentions, the following points would arise for my determination in both these cases: (1) Whether the legal notices issued in these cases are defective for want of the particulars regarding the amount to be paid? (2) Whether separate complaints ought to have been filed in respect of each dishonoured cheque? ( 7 ) THE facts set out above are not very much in dispute. Although it has been contended that there has been no existing debt or liability the same is not germane for consideration inasmuch as it is a contentious issue of fact to be adjudicated only upon the evidence adduced on either side at the time of the trial in these cases. Such process of adjudication of contentious issues cannot be undertaken in these quash petitions. The main thrust of the contention of the learned Counsel appearing for the petitioners being the legal notices suffer from the vice of want of particulars of the amount covered by the cheque and demanded to be paid, the same can be adverted to straightaway without there being any need to fall back upon the factual matrix except mentioning the fact that in the legal notice dated 9-12-2000 it has been averred that the cheque bearing No. 988534 dated 22-5-2000 drawn on Vijay a Bank, I. F. Branch, Chennai, when presented for encashment was dishonoured and, therefore, the accused should pay the amount covered by the said dishonoured cheque within 15 days from the date of receipt of the said notice. In the other legal notice in the second case i. e. , CC no. 47 of 2001 the aggregate amount covered by all the cheques was given was rs. 29,19,267/- and the accused was called upon to pay the amount in view of the bouncing of the 20 cheques. ( 8 ) TO buttress the said contentions, the learned Counsel appearing for the petitioners seeks to place reliance upon a judgment of the Apex Court in Suman Sethi v. Ajay K. Churiwal, 2000 0 AIR (SCW) 383. 29,19,267/- and the accused was called upon to pay the amount in view of the bouncing of the 20 cheques. ( 8 ) TO buttress the said contentions, the learned Counsel appearing for the petitioners seeks to place reliance upon a judgment of the Apex Court in Suman Sethi v. Ajay K. Churiwal, 2000 0 AIR (SCW) 383. He has drawn my attention to the observations made by the Apex Court in para 6 of its judgment thus:"we have to ascertain the meaning of the words said amount of money occurring in clauses (b) and (c) to the proviso to section 138. (sic Regarding), Reading the section 138 as a whole we have no hesitation to hold that the above expression refers to the words payment of any amount of money" occurring in main Section 138 i. e. , the cheque amount. So in notice, under clause (b) to the proviso, demand has to be made for the cheque amount. "in para 8, the Apex Court held thus:"it is well settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the "said amount" i. e. , cheque amount. If no such time is made the notice no doubt would fall short of its legal requirement. "that was a case where a cheque for rs. 20 lakhs, given by the accused in favour of the complainant, when presented was dishonoured with the endorsement "insufficient funds". After issuing requisite legal notice, a complaint was filed before the Metropolitan Magistrate. Upon perusing the legal notice issued in that case, the magistrate was of the view that the demand made in the notice being higher than the amount covered by the cheque, the notice was held to be bad. Aggrieved by the said observation, the complainant approached the high Court and the High Court set aside the order of the Magistrate. The accused, therefore, approached the Apex Court. Under those circumstances, the Apex Court held that if in the notice an omnibus demand was made without specifying what was due under the dishonoured cheque, notice might well fail to meet the legal requirement and may be regarded as bad. The Apex Court referred to its earlier judgment in Central bank of India, v. M/s. Saxons Farms, air 1999 SC 3607 = 1999 Crl. LJ 4571 = (1999) 8 SCC 221 . The Apex Court referred to its earlier judgment in Central bank of India, v. M/s. Saxons Farms, air 1999 SC 3607 = 1999 Crl. LJ 4571 = (1999) 8 SCC 221 . In the said judgment, it was held in para 8 thus:"the object of the notice is to give chance to the drawer of the cheque to rectify his omission and also to protect a honest drawer. Service of notice of demand in clause (b) of the proviso to Section 138 is a condition precedent for filing a complaint under Section 138 of the Act. "the Apex Court further held that though no form of notice is prescribed in clause (b) of the proviso to Section 138, the requirement is that notice shall be given in writing within 15 days of receipt of information from the bank regarding the return of the cheque as unpaid and in the notice a demand for payment of the amount of the cheque is to be made. The contents of the notice have been excerpted in para 5 of its judgment thus:"the bouncing of the two cheques is a most serious matter. The said act of issuance of cheques knowing fully well that the same shall not be paid statutes (constitutes) an offence under Section 138 of the Negotiable instruments Act. As per the provisions of this Act my client through this notice informs you that my client shall report the matter to the Police for initiating appropriate criminal action against you all. My client further reserved the right to file criminal case against all of you for the non-payment of the cheques in question and details given above. Kindly arrange to make the payment of the cheques if you intend to avoid the unpleasant action of my client. "ultimately, the Apex Court held that the notices were valid and there had been also demands for payment as required in clause (b) of the proviso to Section 138 of the Act as a condition precedent. ( 9 ) THE learned senior Counsel appearing for the second respondent, on the other hand, seeks to place reliance upon the latest judgment of the Apex Court in rajneesh Aggarwal v. Amit J. Bhalla, 2001 air SCW 124. That was a case again where three cheques were given for different amounts but for an aggregate amount of rs. 2,32,600/ -. That was a case again where three cheques were given for different amounts but for an aggregate amount of rs. 2,32,600/ -. When those cheques were presented they were dishonoured with the endorsement payment stopped by the drawer . The complainant, therefore, issued notices calling upon the accused to pay the amount covered by the cheques within 15 days of the receipt of the notice. Eventually, he filed the complaints. The accused filed three petitions under section 482 of the Code seeking to quash those complaints. Two contentions were raised before the High Court, namely, (i) the complaint was not maintainable without impleading the Company and (ii) in the absence of the notice as contemplated by clause (b) of the proviso to Section 138 of the Act, the criminal proceedings could not be proceeded. The first contention was rejected in view of the settled position of law. It was held that having regard to the object of issuance of notice, it must be held that the notice cannot be construed in a narrow technical way without examining the substance of the matter. Inasmuch as the drawer of the cheque in that case was m/s. Bhalla Techtran Industries Limited and regardless of the same fact, notice was addressed to Shri Amit Bhalla, it was contended that, that was not a notice issued to the drawer. The Apex Court was of the view that since the drawer signs the cheque in the capacity of the Director of the company in the circumstances, it could not be said that there was no notice to the drawer of the cheque. It is obvious thus that no narrow technical construction should be given io the notice without examining the substance of the matter. ( 10 ) TURNING to the facts of the instant case, the date of the cheque and number of the cheque were given in the notice, but without mentioning the amount covered by the cheque. The notice has sufficiently answered the legal requirement enjoined under clause (b) of the proviso to Section 138 of the Act. In my considered view, that if the number and the date of the cheque were given would give sufficient information to the drawer, when he was called upon to pay the amount covered by that cheque while informing that the said cheque was bounced. In my considered view, that if the number and the date of the cheque were given would give sufficient information to the drawer, when he was called upon to pay the amount covered by that cheque while informing that the said cheque was bounced. Admittedly, when the accused was drawer of the cheque, it cannot be said that he did not know the amount covered by the said cheque nor it can be said legitimately that when he was called upon to pay the amount covered by the cheque he could not know the amount covered by it. ( 11 ) THE legal requirement under clause (b) of the proviso to Section 138 of the Act is that a notice in writing demanding the payment covered by the cheque, which was bounced should be given so as to inform the drawer about the bouncing of the cheque and to enable him to arrange for the payment within 15 days from the receipt of the same. It is meant to avoid unnecessary litigation. In that view of the matter no parochial or narrow construction be given to the contents of the notice. On a holistic view of the contents of the notice it is to be seen whether sufficient information about the bouncing of the cheque within 15 days from the date of receipt of information from the bank is given. or not. Therefore, I am of the considered view that the notice in this case dated 9-12-2000 is not defective. ( 12 ) APROPOS the second contention that separate complaints ought to have been filed in respect of the 20 dishonoured cheques, it is desirable as per the requirements of sections 218 and 219 of the Code to file separate complaints but it is not a mandatory requirement under law as held by the Apex court in Ranchood Lal v. State of Madhya pradesh, AIR 1965 SC 1248 . In identical facts and circumstances this Court in City automobiles and another v. J. K. Industries limited and another (Criminal Petition no. In identical facts and circumstances this Court in City automobiles and another v. J. K. Industries limited and another (Criminal Petition no. 2666 of 2001 and Batch) dated 30-10-2001 has taken the view that issuing a cheque in discharge of a separate debt constitutes a separate offence and although they are all the offences of the same kind since facts do not warrant to conclude that those series of offences have been committed in the course of same transaction one complaint cannot be filed adverting to the provisions of Sections 218, 219 and 220 of the Code, inasmuch as those provisions incorporate a general rule and are not mandatory there is nothing illegal in filing a single complaint nor the trial would be vitiated on account of the same. Therefore, even the second contention of the learned counsel appearing for the petitioners merits no consideration. ( 13 ) FOR the foregoing reasons, both these criminal petitions must fail and they are dismissed accordingly.