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2024 DIGILAW 223 (UTT)

Padma Sharma v. State of Uttarakhand

2024-04-02

RAKESH THAPLIYAL

body2024
JUDGMENT : Rakesh Thapliyal, J. 1. In all these C482 petitions, identical issues are involved, and, therefore, all are being decided by a common order. 2. In all the cases, separate complaints were filed by the respondent under section 138 of the Negotiable Instruments Act, pending in the court of Addl. Chief Judicial Magistrate/1st Addl. Civil Judge, (Sr. Div.), Haridwar. In these complaints, process were initiated and the applicants were summoned and now the proceeding of each of the complaint case has been challenged in these C482 applications on the ground that the notices issued to the applicants does not contain raising of demand, and, as such, the same does not fulfil the requirement of Section 138 of N.I. Act which invalidates the entire proceedings. 3. It is submitted by the learned counsel for the applicants that the allegations made in the complaint or the statement of the witnesses recorded in support of the same, taken as their face value make out absolutely no case against the applicants/accused and the complaint also does not disclose the essential ingredients of the offence which is alleged against the accused. The main contention of the learned counsel for the applicant for challenging the proceedings is that the learned Magistrate have not considered that in the mandatory notice there is no demand at all for the cheque amount. In reference to this, the learned counsel for the applicant shows the notice dated 22.01.2020, in order to establish that in the said notice there is no demand of the amount as shown in the cheque, and, as such, the proceedings cannot be initiated on the complaint moved by the respondent. 4. In reference to this, learned counsel for the applicant has relied upon the judgment of the Hon’ble Supreme Court in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others, (1976) 3 SCC 736 . By giving reference of this judgment, learned counsel for the applicant submits that in para 5, the Hon’ble Supreme Court observed as under:- “5. In reference to this, learned counsel for the applicant has relied upon the judgment of the Hon’ble Supreme Court in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others, (1976) 3 SCC 736 . By giving reference of this judgment, learned counsel for the applicant submits that in para 5, the Hon’ble Supreme Court observed as under:- “5. ………………………Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings. 5. Apart from this, another judgment has been relied upon by the learned counsel for the applicant i.e. in the case of K.K. Indira Vs. Dr. G. Adinarayana, (2003) 8 SCC 300 , wherein the Hon’ble Supreme Court has held as under: “11. Strong reliance was placed by the learned counsel for the appellants on Suman Sethi case [ (2000) 2 SCC 380 : 2000 SCC (Cri) 414] to contend that if the indication in the notice of other amounts than that covered by the cheque issued, does not as held by this Court invalidate the notice, there is no reason as to why a consolidated notice for two complainants cannot be issued. The extreme plea as is sought to be raised in this case based upon Suman Sethi case [ (2000) 2 SCC 380 : 2000 SCC (Cri) 414] is clearly untenable. The extreme plea as is sought to be raised in this case based upon Suman Sethi case [ (2000) 2 SCC 380 : 2000 SCC (Cri) 414] is clearly untenable. Though no formal notice is prescribed in the provision, the statutory provision indicates in unmistakable terms as to what should be clearly indicated in the notice and what manner of demand it should make. In Suman Sethi case [ (2000) 2 SCC 380 : 2000 SCC (Cri) 414] on considering the contents of the notice, it was observed that there was specific demand in respect of the amount covered by the cheque and the fact that certain additional demands incidental to it, in the form of expenses incurred for clearance and notice charges were also made, did not vitiate the notice. In a given case if the consolidated notice is found to provide sufficient information envisaged by the statutory provision and there was a specific demand for the payment of the sum covered by the cheque dishonoured, mere fact that it was a consolidated notice, and/or that further demands in addition to the statutorily envisaged demand were also found to have been made may not invalidate the same. This position could not be disputed by the learned counsel for the respondent. However, according to the respondent, the notice in question is not separable in that way and that there was no specific demand made for payment of the amount covered by the cheque. We have perused the contents of the notice. Significantly, not only the cheque amounts were different from the alleged loan amounts but the demand was made not of the cheque amounts but only the loan amount as though it is a demand for the loan amount and not the demand for payment of the cheque amount, nor could it be said that it was a demand for payment of the cheque amount and in addition thereto made further demands as well. What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case. What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case. The notice in question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount, the non-compliance with such a demand only being the incriminating circumstance which exposes the drawer for being proceeded against under Section 138 of the Act. That being the position, the ultimate conclusion arrived at by the trial court and the High Court does not call for interference in these appeals, though for different reasons indicated by us. The appeals are, accordingly dismissed.” 6. Learned counsel for the applicant has also relied upon another judgment i.e. in the case of Rahul Builders Vs. Arihant Fertilizers & Chemicals and another, (2008) 2 SCC 321 , wherein the Hon’ble Supreme Court in para 10 and 13, has held as under:- “10. Service of a notice, it is trite, is imperative in character for maintaining a complaint. It creates a legal fiction. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main section would not. Unless a notice is served in conformity with proviso (b) appended to Section 138 of the Act, the complaint petition would not be maintainable. Parliament while enacting the said provision consciously imposed certain conditions. One of the conditions was service of a notice making demand of the payment of the amount of cheque as is evident from the use of the phraseology “payment of the said amount of money”. Such a notice has to be issued within a period of 30 (sic 15) days from the date of receipt of information from the bank in regard to the return of the cheque as unpaid. The statute envisages application of the penal provisions. A penal provision should be construed strictly; the condition precedent wherefor is service of notice. It is one thing to say that the demand may not only represent the unpaid amount under cheque but also other incidental expenses like costs and interests, but the same would not mean that the notice would be vague and capable of two interpretations. A penal provision should be construed strictly; the condition precedent wherefor is service of notice. It is one thing to say that the demand may not only represent the unpaid amount under cheque but also other incidental expenses like costs and interests, but the same would not mean that the notice would be vague and capable of two interpretations. An omnibus notice without specifying as to what was the amount due under the dishonoured cheque would not subserve the requirement of law. Respondent 1 was not called upon to pay the amount which was payable under the cheque issued by it. The amount which it was called upon to pay was the outstanding amounts of bills i.e. Rs 8,72,409. The noticee was to respond to the said demand. Pursuant thereto, it was to offer the entire sum of Rs 8,72,409. 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 30-4-2000. What was, therefore, demanded was the entire sum and not a part of it. 13. As in the instant case, no demand was made for payment of the cheque amount, we are of the opinion that the impugned judgment cannot be faulted.” 7. Learned counsel for the applicant has further relied upon the judgment of the Delhi High Court i.e. in the case of M/s Aryan Biological Corporation & Another Vs. M/s Vishwakarma Metal Box & Others, as decided on 07.12.2022 in CRL.M.C 5900 of 2019. The Delhi High Court, also place reliance on the judgment of Hon’ble Supreme Court in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others (supra), and held that it is accepted proposition of law that a notice has to be read as a whole and in the demand notice, a demand for cheque amount is required to be made. If no such demand is made, then the demand notice would not pass the test of legal requirement of Section 138 of N.I. Act. 8. Another judgment on which the learned counsel for the applicant place reliance is in the case of Upasana Mishra Vs. Trek Technology India Pvt. Ltd., Special Leave Petition (Crl.) No. 9062 of 2023, decided on 12.12.2023, wherein the Hon’ble Supreme Court place reliance on the earlier decision i.e. in the case of Suman Sethi Vs. 8. Another judgment on which the learned counsel for the applicant place reliance is in the case of Upasana Mishra Vs. Trek Technology India Pvt. Ltd., Special Leave Petition (Crl.) No. 9062 of 2023, decided on 12.12.2023, wherein the Hon’ble Supreme Court place reliance on the earlier decision i.e. in the case of Suman Sethi Vs. Ajay K. Churiwal and another, (2002) 2 SCC 380, and the Hon’ble Supreme Court, in para 8 of the said judgment observed as under:- “8. 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 demand is made the notice no doubt would fall short of its legal requirement. Where in addition to “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 he severable-and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonored cheque, notice might well fail to meet the legal requirement and may be regarded as bad. 9. This Court had occasion to deal with Section 138 of the Act in Central Bank of India v. Saxons Farms, (1999) 8 SCC 221 : JT (1999) 8 SC 58 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 drawer will be absolved from his liability under Section 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 complaint is filed. As therein, some other sums were indicated in addition to the amount of cheque, it was, therefore, not held to be a case where the dispute might be existing in respect of the entire outstanding amount.” (Emphasis added) 9. As therein, some other sums were indicated in addition to the amount of cheque, it was, therefore, not held to be a case where the dispute might be existing in respect of the entire outstanding amount.” (Emphasis added) 9. Learned counsel for the applicants submits that there should be a specific demand in clear words in the notice, and, since, the notice does not contain the reference of demand of the amount as shown in the cheque, therefore, the entire proceeding is vitiated. 10. I perused each of the notice, on perusal of which it reveals that in para 3 of the notice, a reference of the cheque amount has been given. In concluding paragraph of the notice, the applicant was given 15 days’ time to pay the amount shown in the cheque. No doubt in the concluding paragraph the demand is not in clear words but on plain reading of the entire notice it is very much clear that in the preceding paragraph there is reference of the cheque and the amount shown in the cheque and, 15 days time has been given to pay the amount shown in the cheque. 11. It appears that the learned counsel for the applicant advanced his argument merely on the basis of the concluding paragraph of the notice by ignoring the contents of the preceding paragraph of the notice. The notice has to be read in totality and on perusal of the entire notice it is very much clear that there is reference of the cheque as well as the amount shown in the cheque. Furthermore, there is a demand to pay that amount within 15 days as shown in the cheque, therefore, the arguments as advanced by the learned counsel for the applicant are not acceptable. Hence all these C482 Applications are devoid of merit and are accordingly dismissed. 12. Pending application(s), if any, stand disposed of.