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Madhya Pradesh High Court · body

2008 DIGILAW 431 (MP)

Mahendralal Shivhare v. State of M. P.

2008-03-17

B.M.GUPTA

body2008
judgment 1. This petition is for quashing the criminal proceeding pending against the petitioner in Criminal Case No. 4492/07 in the Court of Special, Judicial Magistrate, Morena for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). 2. While drawing attention to notice dated 17th November, 2003 issued by the respondent No.2, it is submitted by Shri Mishra that this notice has not been given with regard to specific amount of the cheque concerned. It contains the demand of whole of the amount due, as mentioned in para 2 of the notice, hence, as observed by the apex Court in the case of M/s. Rahul Builders v. M/s. Arihant Fertilizers and Chemical and another [ 2008 (1) JLJ 44 = 2008 (1) MPHT 146 (SC)], the criminal proceeding deserves to be quashed. 3. Shri Chaturvedi for the respondent No. l/State has submitted that the case does not relate to the State. 4. Shri Dwivedi for the respondent No.2 has drawn attention to paras 4 and 5 of the complaint filed by the respondent No.2 dated 10th December, 2003 and submitted that the complaint has been filed with regard to the amount of cheque in question. 5. Admittedly, notice dated 17th November, 2003 has been issued by the respondent No 2 to the petitioner under section 138 proviso (b) of the Act, which goes as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account. -- .............. Provided that nothing contained in this section shall apply unless -- (a) ............. (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 fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) ................" On perusal, it appears that there should be a demand of the amount of the cheque. In the light of this provision, relevant extracts of the notice are to be perused, which are as under :-- "2. In the light of this provision, relevant extracts of the notice are to be perused, which are as under :-- "2. ;g fd] vkidh laLFkk dkQh le; ls f"kogjs baMLVªht ds uke ls rsy dk O;olk; dj jgh gS vki izksijkbZVj rFkk rhuksa ikVZuj }kjk gekjs O;ogkjh eqékyky "kekZ ls #- 8]00]000@& ljlksa [kjhnus dk vuqca/k fd;k tks ekSf[kd FkkA bl izdkj vkidh lk[k ns[krs gq, gekjs O;ogkjh }kjk le; le; ij vkidks iwjh 8 yk[k #i;s dh ljlksa lIykbZ m/kkj dh xbZA ftldh jde dh vnk;sxh ds fy, vkius rhu pkj ekg dk ok;nk fd;k FkkA 3. ;g fd] vkids ok;ns ds eqrkfcd gekjk i{kdkj vkids ikl #i, ysus ds fy, x;k rks vkius cgkusckth djds Vky fn;k gekjs i{kdkj }kjk tc vkils dkQh ryc rdkns fd, rks vki egsanzyky us 2 yk[k #i, ds nks pSd pacy {ks=h; xzkeh.k cSad eqjSuk ds uke ls fn, tks nksuksa cSad }kjk vkids ,dkmaV esa #i, u gksus ds dkj.k fMlvkWuj dj fn, tk,A 4 ls 5 .............. 6. ;g fd] bl rjg vkidk ;g crkZo fcYdqy xyr gSA vki yksxksa ds eu esa cn;kUrh vkus ls gekjs i{kdkj dks dqN Hkh #i, vnk ugha djuk pkgrs gS vkSj mldh lkjh jde 1/4jkf"k1/2 gM+iuk pkgrs gSA ;g vey vkidk fcYdqy Bhd ugha gSA 7. ;g fd] vki yksxkas dks ge vius O;ogkjh dh rjQ ls mä uksfVl izsf'kr dj vkidks fgnk;r nh tkrh gS fd vki gekjs i{kdkj dk iwjk fglkc csckd dj jlhn izkIr djs ojuk okn E;kn uksfVl vkids f[kykQ tk¶rk dk;Zokgh vey es ykbZ tkosxh ftleas gekjs i{kdkj ds lkjs gtsZ [kpsZa dh ftEesnkjh vkids ftEes gksxhA vkidks ;g fgnk;r nh tkrh gS fd ;fn vkids }kjk uksfVl ds eqrkfcd vey ugha fd;k x;k rks vkids f[kykQ fuxksf"k,cy bULV#esaV ,DV ds rgr Hkh dk;Zokgh dh tkosxh ftlds fy, iwjh rjg ls vki Lo;a ftEesnkj gksaxsA (emphasis supplied) 6. Upon perusal of the highlighted part of the notice, it appears that an amount of Rs. 8,00,000/- was due on the petitioner. Against the said amount, two cheques amounting to Rs. 2,00,000/- each were drawn by the petitioner in favour of the respondent No.2. One, out of those two cheques, was dishonoured by the bank upon its presentation for encashment. Instead of demanding the amount of the said cheque of Rs. 8,00,000/- was due on the petitioner. Against the said amount, two cheques amounting to Rs. 2,00,000/- each were drawn by the petitioner in favour of the respondent No.2. One, out of those two cheques, was dishonoured by the bank upon its presentation for encashment. Instead of demanding the amount of the said cheque of Rs. 2,00,000/-, at the most, along with its incidental charges, as it appears from the highlighted part of para 7 onwards, a demand of whole of the amount due, which is Rs. 8,00,000/- herein, was made and notice indicates that in case the whole of the amount is not paid, then the action under the Act will be taken. The notice does not appear to be issued for a specific demand of the amount of the cheque concerned. Hence, it cannot be said to be a valid notice. In similar set of facts and circumstances, the Hon'ble apex Court in the case of M/s. Rahul Builders (supra) has taken a similar view. As facts being similar, there appears no need to reproduce the same in detail here in this order. The Hon'ble apex Court, while considering the notice invalid, has affirmed the order of the High Court quashing the complaint on this ground. In the light of this judgment of the apex Court and as observed hereinabove, in absence of valid notice, the criminal proceeding against the petitioner appears to be an abuse of the process of the Court. 7. Consequently, the petition is allowed. The criminal proceeding pending against the petitioner in aforementioned criminal case for the offence punishable under section 138 of the Act is quashed.