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2022 DIGILAW 2699 (RAJ)

Shyam Sunder Soni v. State Of Rajasthan

2022-11-03

DINESH MEHTA

body2022
JUDGMENT Dinesh Mehta, J. - By way of the instant petition under section 482 of the Code of Criminal Procedure, 1973, (hereinafter referred to as "the Code") the petitioner has prayed that the proceedings in case No. 578/2022, pending before the Special Judge, Negotiable Instruments Act Cases No. 3, Bikaner (hereinafter referred to as "the trial Court") be quashed. 2. The premise on which the present petition has been filed is rather unique and intriguing. The facts as goes are that the petitioner, being the authorized signatory of M/s. S.S. & Sons, issued a cheque dated 08.06.2014 bearing No. 631583 drawn on State Bank of Bikaner and Jaipur, Bikaner to the complainant (respondent No. 2 herein). 3. It is to be noted that the cheque in question was drawn for Rs. 7,55,125/- (Rupees Seven Lacs Fifty Five Thousand One Hundred and Twenty-Five) so far as figures/numbers are concerned, but in words such amount, due to inadvertence or otherwise, was inscribed as "Rupees Seven Lacs Fifty Thousand One Hundred Twenty Five Only". 4. When the cheque was presented by the complainant in the Bank for encashment, the Bank (State Bank of Bikaner and Jaipur) returned the same with the memo dated 17.06.2014, with the following remark: "OP. BAL. INSUFFICIENT (opening balance is insufficient)" 5. The complainant issued statutory notice required under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act") to the petitioner on 25.06.2014 and claimed an amount of Rs. 7,55,125/- (rupees seven lacs fifty five thousand one hundred twenty five), as mentioned on the cheque. 6. When the petitioner (drawer of the cheque in question) did not pay the amount as demanded, the complainant proceeded to file a complaint under section 138 of N.I. Act, which was registered as Complaint Case No. 65/2015 (new No. 578/2022). 7. During the pendency of the trial, the petitioner moved an application dated 03.09.2022 and prayed that the proceedings be quashed. A number of grounds were raised but we are presently concerned with two of those grounds - firstly, that the cheque in question bears two different expressions - in figures, Rs. 7,55,125/- and in words, Rs. 7,50,125/- (Seven Lacs Fifty Thousand One Hundred Twenty Five), and secondly, that the legal notice dated 25.06.2014 served by the complainant did not relate to the 'cheque amount'. 8. 7,55,125/- and in words, Rs. 7,50,125/- (Seven Lacs Fifty Thousand One Hundred Twenty Five), and secondly, that the legal notice dated 25.06.2014 served by the complainant did not relate to the 'cheque amount'. 8. The application filed by the petitioner came to be rejected by the learned trial Court vide its order dated 20.09.2022, observing inter alia, that petitioner's earlier application on the same count has been rejected and that the proceedings cannot be quashed at this stage on the ground taken by the petitioner as the trial court has taken cognizance for the sum of Rs. 7,50,125/-, which is consistent with the provisions of section 18 of the N.I. Act. 9. The petitioner has approached this Court invoking its inherent jurisdiction oppugning the order aforesaid of the trial Court. 10. Mr. Gurvinder Singh, learned counsel for the petitioner contended that the complainant's legal notice dated 25.06.2014 was not in conformity with the statutory provisions inasmuch as the notice was for Rs. 7,55,125/- (Rupees Seven Lacs Fifty Five Thousand One Hundred Twenty-Five), which was different from the sum expressed in words on the cheque in question. According to him, because of such discrepancy, the statutory notice given under section 138(b) of the N.I. Act was not in accordance with law and hence, the consequential complaint is liable to be quashed. 11. Elaborating his argument, learned counsel invited Court's attention towards section 138 of the N.I. Act and submitted that the notice of demand must be "for the payment of said amount of money", and in case the amount is expressed differently in words and figures, per force of section 18, the amount stated in the words is to be taken into consideration as the cheque amount. He argued that in the instant case, not only the notice even complaint ought to have been instituted for such amount, i.e., Rupees Seven Lacs Fifty Thousand One Hundred and Twenty-Five (Rs. 7,50,125/-). 12. He argued that the legal notice dated 25.06.2014 ought to have been issued for amount of Rs. 7,50,125/- (Rupees Seven Lacs Fifty Thousand One Hundred Twenty-Five) and since the notice was not for the sum mentioned in cheque, the same was invalidated. 13. He pointed out that while taking cognizance, learned trial Court has reckoned the figure of Rs. 12. He argued that the legal notice dated 25.06.2014 ought to have been issued for amount of Rs. 7,50,125/- (Rupees Seven Lacs Fifty Thousand One Hundred Twenty-Five) and since the notice was not for the sum mentioned in cheque, the same was invalidated. 13. He pointed out that while taking cognizance, learned trial Court has reckoned the figure of Rs. 7,50,125/- and not what was mentioned in the notice, and fervently argued that since the cognizance has been taken for an amount other than the amount demanded or mentioned in the notice and the complaint, not only the cognizance, even the proceedings are vitiated and deserve to be quashed. 14. In support of his arguments aforesaid, learned counsel for the petitioner relied upon following judgments of Hon'ble the Supreme Court and the Delhi High Court. (i) Suman Sethi v. Ajay K. Churiwal & Anr. reported in II (2001) BC 144 (SC). (ii) K.R. Indira v. Dr. G. Adinarayana reported in III (2005) BC 384 (SC). (iii) Alliance Infrastructure Project Pvt. Ltd. & Ors. reported in (2010) AD (Delhi) 716. 15. Heard learned counsel for the petitioner and perused the material available on record, including the judgments cited by Mr. Singh. 16. Before delving into the issue, it would be appropriate to reproduce relevant parts of section 138 and section 18 of the N.I. Act for ready reference: Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account.- ....... Provided that nothing contained in this section shall apply unless-- ..... (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, 3[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Section 18. Where amount is stated differently in figures and words. Section 18. Where amount is stated differently in figures and words. - If the amount undertaken or ordered to be paid is stated differently in figures and in words, the amount stated in words shall be the amount undertaken or ordered to be paid. 17. Indisputably, there is a discrepancy in the amounts mentioned in the cheque. The figures or numbers show the cheque to be drawn for Rs. 7,55,125/- (Rupees Seven Lacs Fifty-Five Thousand One Hundred and Twenty-Five), whereas the inscription in words is, Rupees Seven Lacs Fifty Thousand One Hundred Twenty-Five (Rs. 7,50,125/-). 18. True it is, that as per section 18 of the N.I. Act, in case of difference between the words and the figures, the amount written in words in a negotiable instrument is to be taken into consideration. Intention and purport of Section 18 of the N.I. Act which provides that the amount written in words shall prevail, is to give certainty to the amount, if there is any discrepancy in words and figures because there may be lack of clarity while expressing the amount in figures. 19. The fact that the legal notice dated 25.06.2014 has been given for Rs. 7,55,125/- by itself does not invalidate the notice and the proceedings against the petitioner. Section 138 of the N.I. Act is required to be read purposively. 20. It is a settled proposition that the law is required to be interpreted to avoid mischief and to advance the cause of justice. Hon'ble the Supreme Court has explained the object and intent behind section 138 of the N.I. Act in the case of Vinay Devanna Nayak v. Ryot Seva Sahakari Bank Ltd. reported in (2008) 2 SCC 305 as follows: "Section 138 of the Act was inserted by the Banking, Public Financial Institutions and Negotiable Instrument Law (Amendment) Act, 1988 (ACT 66 of 1988) to regulate financial promises in growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters. The incorporation of the provision is designed to safeguard the faith of the creditor in the drawer of the cheque, which is essential to the economic life of a developing country like India. The provision has been introduced with a view to curb cases of issuing cheques indiscriminately by making stringent provisions and safeguarding interest of creditors. The incorporation of the provision is designed to safeguard the faith of the creditor in the drawer of the cheque, which is essential to the economic life of a developing country like India. The provision has been introduced with a view to curb cases of issuing cheques indiscriminately by making stringent provisions and safeguarding interest of creditors. As observed by this Court in Electronic Trade & Technology Development Corporation Ltd. v. Indian Technologists & Engineers: 1996 CriLJ 1692, the object of bringing Section 138 in the statute book is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. The provision is intended to prevent dishonesty on the part of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of bank operations and ensures credibility in transacting business through cheques." 21. A literal and strict interpretation of section 18 read with the phrase "said amount" in section 138 would be pedantic and counterintuitive, resulting in miscarriage of justice in the present case. 22. The purpose of the legal notice under section 138 of the N.I. Act is to intimate the drawer about his liability to remit the amount. It has been held by Hon'ble the Supreme Court in Central Bank of India and Ors. v. Saxons Farms and Ors. reported in (1999) 8 SCC 221 , that the "object of notice is to give a chance to the drawer of the cheque to rectify his omission and also to protect honest drawer". 23. In the present case, the complainant clearly spelled out the amount covered by the dishonoured cheque in question and the petitioner knew what amount he was required to pay. Such purpose of sending the legal notice was, hence, fulfilled and without even responding to the notice, the petitioner has tried to avert the proceedings by resorting to a mechanical construction of the law. 24. In the opinion of this Court, neither the notice is vitiated on such hyper-technicality nor is such inadvertent or intentional disparity or divergence fatal to the proceedings. 25. Concededly, there is a minor variation of Rs. 5000/- while writing the expression in words vis-à-vis. the figures. 24. In the opinion of this Court, neither the notice is vitiated on such hyper-technicality nor is such inadvertent or intentional disparity or divergence fatal to the proceedings. 25. Concededly, there is a minor variation of Rs. 5000/- while writing the expression in words vis-à-vis. the figures. It is not the case/defence of the present petitioner - the drawer of the cheque that he had made arrangements for the purported cheque amount of Rs. 7,50,125/-. Whether the amount or liability was of Rs. 7,55,125/- or Rs. 7,50,125/- is subject matter of trial. The petitioner had neither responded to the notice nor has he disputed the very liability, much less paying the amount of Rs. 7,50,125/- 26. That apart, had the complainant issued the notice for Rs. 7,50,125/-, the amount mentioned in the words, then too, the petitioner would have come with the plea that the notice has been issued for an amount other than the cheque amount. 27. So long as the cheque returning memo dated 17.06.2014 sent by petitioner's banker shows the cheque to have been returned for insufficiency of funds (Opening balance insufficient), petitioner's inadvertent/unintentional error, or possibly a well-thought of ploy to write two amounts in the cheque, cannot shield or protect him from the proceedings under section 138 of the N.I. Act. 28. In the case of NEPC Micon Ltd. v. Megma Leasing Ltd. reported in AIR 1999 SC 1952 , Hon'ble the Supreme Court while applying mischief rule of interpretation held that where a cheque is returned by the bank unpaid on the ground that the "acc. is closed", it would be as if money standing to the credit of the account would be insufficient to honour the cheque. The Apex Court observed that, if the interpretation which is sought for were given, then it would only encourage dishonest persons to issue cheque and before presentation, close the account, thereby escaping liability under section 138 of N.I. Act. 29. Similarly, if the contention of the present petitioner is accepted, it would encourage unscrupulous drawers of cheque to indulge in the practice of intentionally creating discrepancy to take advantage of such tactics in future. Petitioner cannot take advantage of his own fault/folly to non-suit the complainant. 30. 29. Similarly, if the contention of the present petitioner is accepted, it would encourage unscrupulous drawers of cheque to indulge in the practice of intentionally creating discrepancy to take advantage of such tactics in future. Petitioner cannot take advantage of his own fault/folly to non-suit the complainant. 30. So far as judgments cited by learned counsel for the petitioner are concerned, they are cases wherein the complainant(s) had issued notice(s) for incorrect amount or the amount other than the cheque amount, for which the Courts have held that the notice was not given for the cheque amount ("said amount") whereas in the instant case, the complainant bonafidely sent a notice for the amount mentioned on the cheque in figures, i.e., Rs. 7,55,125/-. Such amount cannot be alleged to be an amount other than the cheque amount, solely by reading provisions of section 18 of the N.I. Act in a vacuum. 31. The learned trial Court has taken cognizance for the amount of Rs. 7,50,125/-, being cognizant of section 18 of the N.I. Act. 32. Merely because the cognizance has been taken for an amount other than the cheque amount mentioned in the legal notice, the entire proceedings cannot be held vitiated or invalidated. 33. The misc. petition, being meritless, is dismissed. 34. Stay petition also stands dismissed.