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2010 DIGILAW 1126 (PNJ)

Luxmi Enterprises v. Maa Sheetla Industries

2010-03-09

HARBANS LAL

body2010
Judgment Harbans Lal, J. 1 This appeal is directed against the judgment dated 12.7.2008 passed by the court of learned Judicial Magistrate 1st Class, Hisar whereby she dismissed the complaint lodged under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as the. Act) and acquitted the accused. 2 The allegations in the complaint are that the complainant M/s. Luxmi Enterprises, Gali No. 4-B, Surya Nagar, Hisar deals in the sale and purchase of recycled lubricating oil etc. This firm had business dealing with the accused firm respondent No. 1 through its proprietor accused No. 2. On 13.3.2002 the accused .No. 2 issued a cheque No. 454067 dated 13.2.2003 for Rs. 74,693/- drawn on bank of Baroda, Churu on behalf of firm accused No. 1 to the complainant in discharge of its liability as payment of the price of goods purchased vide bill No. 1248 dated 13.2.2003 . The cheque was presented for collection. The same was bounced and returned vide memo dated 13.2.2003 with the remarks "Account closed." The requisite intimation in this behalf was given to the complainant by its banker vide memo dated 20.3.2003. A registered notice dated 1.4.2003 was issued to the accused calling upon to make the; payment of the cheque amount. The notice was served upon the accused on 8.4.2003, but despite that they failed to make the payment of the cheque amount. 3 After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court dismissed the complaint as noticed at the outset. Feeling aggrieved therewith, the appellant has preferred this appeal against the impugned judgment. 4 I have heard the learned counsel for the parties, besides perusing the record with due carte and circumspection. 5 The learned counsel for the appellant valiantly urged that the learned trial Court has erroneously observed that notice Ex. P-4 served by the appellant on accused/respondent is invalid as the accused has been asked to make the payment of Rs. 74,693/- alongwith Rs. 390/- as incidental charges. The learned Magistrate has further gravely erred in observing that the notice should have been qua the cheque amount only and no other charges could have been asked for from the accused and such type of notice is non-est and invalid and does not fulfill the requirements of the Act. 74,693/- alongwith Rs. 390/- as incidental charges. The learned Magistrate has further gravely erred in observing that the notice should have been qua the cheque amount only and no other charges could have been asked for from the accused and such type of notice is non-est and invalid and does not fulfill the requirements of the Act. This view is wholly unsustainable in the light of law laid down by the Apex Court in Suman Sethi v. Ajay K. Churiwal 2000(1) Recent Criminal Reports (Criminal) 780. 6 To overcome these submissions, the learned counsel for the accused/respondent pressed into service that by claiming the amount of Rs. 390/- on account of incidental charges in the notice, it has been rendered invalid. This contention merits rejection for the discussion to follow hereunder :- 7 The learned trial Court has observed that "a perusal of the notice dated 1.4.2003 reveals that the complainant has called upon the accused to make the payment of Rs. 74.693/-, the cheque amount alongwith the incidental charges of Rs. 390/- which were debited from the account of the complainant as collection charges etc. Incurred on the said cheque on its presentation to the bank for collection purposes. It is settled law that notice of the dishonour of the cheque must be of the cheque amount only and if a bigger or smaller amount is claimed in the notice it is not a valid notice and the same is considered to be a vague and insufficient notice." A meticulous perusal of the impugned judgment would reveal that as a matter of fact, the complainant has been non- suited merely because of the fact that an amount of Rs. 390/- on account of incidental charges has been added in the notice Ex. P-4. In Suman Sethi (supra) the Supreme Court has observed as under :- "9. In Section 138 legislature clearly stated that for the dishonoured cheque the drawer shall be liable for conviction if the demand is not made within 15 days of the receipt of notice but this is without prejudice to any other provision of the Act. If the cheque amount is paid within the above period or before the complaint is filed the legal liability under Section 138 will cease and for recovery of other demands as compensation, costs, interest, etc. a civil proceeding will lie. If the cheque amount is paid within the above period or before the complaint is filed the legal liability under Section 138 will cease and for recovery of other demands as compensation, costs, interest, etc. a civil proceeding will lie. Therefore, if in a notice any other sum is indicated in addition to the "said amount" the notice cannot be faulted, as stated above. 10, Drawing our at mention to Section .139 of the Act, Dr. Dhawan has urged that in the notice in addition to "said amount" other demands are made the presumption as contemplated under Section 138 would operate. We are unable to accept the submission of the learned senior as Section 139 has to be read with Section 138 and reading both the Sections together it would appear that presumption would arise only in respect of the "said amount." We extract below the relevant portion of the notice : "I, therefore, by means of this notice call upon you to pay the amount of Rs. 20,00,000/- along with the incidental charges of Rs. 1500/-spent on the cheque on Its presentation and also Rs. 340/- as notice charges within a period of 15 days from the date of receipt thereof, failing which my clients shall take necessary legal step against you holding you liable for all costs and consequences thereof which please note." 11. In the notice in question the "the said amount" i.e. the cheque amount has been clearly stated. Respondent No. 1 had claimed in addition to the cheque amount, incidental and notice charge. These two amounts are severable. In the notice it was clearly stated that on failure to comply with the demand necessary legal steps will be taken up. If respondent No. 1 had paid the cheque amount he would have been absolved from the criminal liability under Section 138. Regarding other claims, a civil suit would be necessary." 8 It can be reasonably called out from these observations that if cheque amount and the incidental charges are separable, the notice cannot be held to be invalid. If the accused pays the cheque amount, he will be absolved from the criminal liability. For other claims including incidental charges, a civil suit can be filed. In the present one, obviously, the cheque amount and the amount of incidental charges have been shown separately. If the accused pays the cheque amount, he will be absolved from the criminal liability. For other claims including incidental charges, a civil suit can be filed. In the present one, obviously, the cheque amount and the amount of incidental charges have been shown separately. There is nothing on the record to show that the respondent-accused has paid the cheque amount. Sequelly, he cannot be deemed to have been absolved from the criminal liability. Thus, in view of the ratio decidendi laid down in Suman Sethis case, the learned trial Court was not justified to dismiss the complaint merely on the ground that an amount of Rs. 390/- on account of incidental charges has been claimed in the notice Ex. P-4. Thus, palpably the approach adopted by the learned Magistrate is erroneous and incorrect. Consequently, this appeal is accepted by setting aside the impugned judgment. The matter is remitted to the leamed trial Court to decide it afresh in the light of the observations rendered hereinbefore. The parties through their respective counsels are directed to put in their appearance before the learned trial Court on 23.4.2010. 9 Registry is directed to send a copy of this judgment to the learned trial Court alongwith record of the trial court at the earliest possible. 10 Since the appeal has been decided, all pending Criminal Miscellaneous, if any, also stand disposed of. Appeal disposed of.