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Allahabad High Court · body

2017 DIGILAW 1068 (ALL)

Hari Mohan Agrawal v. State of U. P.

2017-04-20

SURYA PRAKASH KESARWANI

body2017
JUDGMENT : SURYA PRAKASH KESARWANI, J. 1. Heard learned counsel for the applicant and the learned A.G.A. 2. Learned counsel for the applicant submits that the notice under Section 138-B of the N.I. Act, 1881 dated 28.05.2015 given by the opposite party no.2 to the applicant, was a defective notice due to non compliance of the provision of the Section 138 of the Act and as such the entire proceedings in Complaint Case No.6072 of 2015 (Indresh Kumar Vs. Hari Mohan Agarwal) under Section 138 N.I. Act, Police Station Kotwali, District Jhansi as well as the order dated 05.11.2017 passed by the learned Additional Session Judge, Court No.5, Jhansi in Criminal Revision No.221 of 2015, deserve to be quashed. 3. Learned A.G.A. supports the impugned order. Facts: 4. Briefly stated, the facts of the present case are that the applicant is a property dealer who took advance from the opposite party no.2 on 28.05.2011 towards a plot. However, the applicant could not execute the sale deed and as such he gave a cheque no.603718 on 25.06.2015 for Rs.50,000/- and cheque no.603717 on 20.05.2015 for Rs.1,40,000/- of State Bank of India, Manik Chowk, Jhansi, to the opposite party no.2 to return the advance. When the opposite party presented the cheques in his bank, the cheques were dishonoured with the remark of insufficient fund. The opposite party no.2 gave a notice dated 28.05.2015 to the applicant clearly stating therein full particulars of the cheques, its amount and the fact of its dishonour and required him to pay the amount of the cheques. That apart, in the notice, the opposite party no.2 has also mentioned that Rs.60,000/- is also due towards advance which may also be paid. The applicant has not paid the amount of the aforesaid two cheques. Consequently, the opposite party no.2 filed the aforesaid complaint case under Section 138 N.I. Act before the competent Court which was registered as a complaint case no.6072 of 2015 (Indresh Kumar Vs. Hari Mohan Agarwal) under Section 138 N.I. Act, Police Station Kotwali, District Jhansi. The statement of the complainant/opposite party no.2 under Section 200 Cr.P.C. was recorded by the Chief Judicial Magistrate, Jhansi. The C.J.M., Jhansi considered the complaint and the evidences on record and thereafter passed the summoning order dated 19.09.2015 whereby the applicant has been summoned. 5. Hari Mohan Agarwal) under Section 138 N.I. Act, Police Station Kotwali, District Jhansi. The statement of the complainant/opposite party no.2 under Section 200 Cr.P.C. was recorded by the Chief Judicial Magistrate, Jhansi. The C.J.M., Jhansi considered the complaint and the evidences on record and thereafter passed the summoning order dated 19.09.2015 whereby the applicant has been summoned. 5. Aggrieved with the aforesaid summoning order, the applicant preferred a Criminal Revision No.221 of 2015 before the Court of Additional Session Judge, Court No.5, Jhansi. Before the revisional court, the applicant argued that the complaint case cannot be proceeded in the absence of any demand notice as the demand notice was not sent by the opposite party no.2 at the correct place and it was not served upon the applicant. The revisional court considered the submissions of the applicant and found no merit in it. The court observed that prima facie commission of offence has been made out and as such there is no infirmity in the summoning order. Under the circumstances, the revision filed by the applicant was dismissed. Now, the applicant has filed this application under Section 482 Cr.P.C. 6. Learned counsel for the applicant has now raised all-together a new argument that the demand notice dated 28.05.2015 under Section 138-B N.I. Act sent by the opposite party no.2, was not a notice under Section 138-B N.I. Act inasmuch as the opposite party no.2 demanded an additional amount of Rs.60,000/-. He submits that since an additional amount was demanded by notice dated 28.05.2015 and as such there was no notice in the eyes of law and therefore, complaint case cannot be proceeded. In support of his submission, he relied upon a judgment of the Hon'ble Supreme Court in the case of Rahul Builders Vs. Arihant fertilizers and Chemical, 2008 (2) SCC 321 . Discussion and Findings: 7. I have carefully considered the submissions of the learned counsel for the applicant and the learned A.G.A. 8. It is admitted by the applicant before this Court that a notice dated 28.05.2015 was send by the opposite party no.2 to the applicant intimating the fact of dishonour of the aforesaid two cheques and demanding payment thereof. Discussion and Findings: 7. I have carefully considered the submissions of the learned counsel for the applicant and the learned A.G.A. 8. It is admitted by the applicant before this Court that a notice dated 28.05.2015 was send by the opposite party no.2 to the applicant intimating the fact of dishonour of the aforesaid two cheques and demanding payment thereof. The objection of the applicant against notice is that in addition to the amount of the aforesaid two cheques, the opposite party has also mentioned in the notice that a sum of Rs.60,000/- is also due which may be paid. The arguments raised by the applicant in the present application on account of the aforesaid alleged additional demand of an amount of Rs.60,000/-, cannot result in invalidating the notice. By the aforesaid notice, the opposite party no.2 has clearly intimated the applicant the fact of dishonour of the cheques issued by the applicant to him and he demanded the payment of the amount of the aforesaid two cheques. The additional amount mentioned by the opposite party in the notice date 28.05.2015 is severable from the demanded amount of the dishonoured cheques. Hence, the notice cannot be said to be invalid. 9. The view being taken by this Court as aforesaid also finds support from the law laid down by the Hon'ble Supreme Court in the case of Suman Sethi Vs. Ajay K. Churiwal and another, 2000 (2) SCC (Para 8) which is reproduced below;- "8. It is a 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. the cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where in addition to the "said amount" there is also a claim by way of interest, cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving the break-up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these, additional claims would be severable and will not invalidate the notice. whether the notice is bad would depend on the language of the notice. If in a notice while giving the break-up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these, additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, the notice might well fail to meet the legal requirement and may be regarded as bad." 10. The judgment in the case of Rahul Builders (supra) relied by the applicant is wholly distinguishable on facts of the present case. In the case of Rahul Builders (supra), the facts were that when the cheque was returned unpaid due to closer of the account, the payee issued a notice with a payer demanding payment of ten bills instead of demanding the payment of the dishonoured cheques. Under the circumstances, in the said case, Hon'ble Supreme Court held that an omnibus notice without specifying as to what was the amount due under the dishonoured cheque would not subserve the requirement of law. The amount which was called upon to pay was the outstanding amount of the bills and the noticee was to respond to the said demand. In the said case Hon'ble Suprem Court further observed (in para 10) that 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. Thus, the judgment relied by the learned counsel for the applicant is distinguishable on facts. 11. In the case of Suman Sethi (Supra), Hon'ble Supreme Court has also referred to its judgment in the case of Central Bank of India Vs. Saxons Farms, 1999 supp (3) SCR 534 and held that the object of the notice is to give a chance to the drawer of the cheque to rectify his omission. Though in the notice demand for compensation, interest, cost etc. is also made, the drawer will be absolved from his liability under Section 138 if he makes the payment of the amount covered by the cheque of which he was aware within 15 days from the date of receipt of the notice or before the complaint is filed. 12. Though in the notice demand for compensation, interest, cost etc. is also made, the drawer will be absolved from his liability under Section 138 if he makes the payment of the amount covered by the cheque of which he was aware within 15 days from the date of receipt of the notice or before the complaint is filed. 12. In view of the above discussion, I do not find any merit in this application. The impugned summoning order as well as the revisional order do not suffer from any error of law or fact. In result, the application fails and, is hereby, dismissed.