A legal notice under Section 138 of the NI Act must specify the amount due; failure to do so invalidates the notice and any subsequent complaint.

ORDER :

1. The petitioner is seeking quash of CC.No.250 of 2023 on the file of Additional Judicial Magistrate of First Class, Kovur. The petitioner is arraigned as accused for the alleged offence under Section 138 of Negotiable Instruments Act.

2. It is submitted that the 2nd respondent filed a complaint alleging that the 2nd respondent along with one M.Naga Raju were in the real estate business and in order to facilitate generation of revenue an agreement of sale cum GPA was entered on the name of the petitioner with an understanding that the accused will re-convey the title to the complainant.

3. It is stated in the complaint that the petitioner along with M.Naga Raju without any intimation to the 2nd respondent executed a registered sale deed to one R.Sunil Kumar and collected the sale consideration. On demand from the 2nd respondent it is alleged that the petitioner issued a cheque towards part-payment and that the said cheque was dishonoured when it was presented.

4. The cheque bearing No.000005, dated 01.01.2023 was presented on 18.01.2023 which was returned dishonoured on 19.01.2023, thereafter, a legal notice dated 27.01.2023 was issued which was served on the petitioner on 28.01.2023. As the 1st petitioner failed to pay the amounts, a complaint was filed.

5. The learned counsel appearing for the petitioner submits that the legal notice served on the petitioner does not mention the amount called upon for payment. The legal notice would simply call upon the petitioner to pay the amount covered under the cheque bearing No.000005 of HDFC Bank within a period of 15 days.

6. The learned counsel for the petitioner places reliance on the judgment of Hon’ble Supreme Court in the matter of Rahul Builders Vs. Arihant Fertilizers & Chemicals and Another, (2008) 2 SCC 321 the Hon’ble Supreme Court held that notice under Section 138 of NI Act would have to specify the amount demanded, in absence of demand of specified amount the notice cannot be considered as a valid statutory notice.

7. The learned counsel appearing for the 2nd respondent submits that the ground on which the petitioner is seeking quash of the case is a hyper-technical objection. It is submitted that the legal notice would have to be read as a whole notice and not in isolation. It is submitted that the legal notice has specifically mu called upon the petitioner to pay the amount covered under cheque bearing No.000005 of HDFC Bank within a period of 15 days from the date of receipt of notice. It is further submitted that the petitioner is well aware of the amount for which the subject cheque was drawn. As such, there should be no ambiguity in the mind of the petitioner in paying up the cheque amount covered under the said cheque. It is also submitted that the petitioner instead of paying up the cheque amount as called upon, has also not responded to the legal notice nor called upon the respondent to clarify if there was any ambiguity in understanding the legal notice or any confusion with regard to the amount required to be payable on account of the dishonoured cheque. The petitioner has committed the offence under Section 138 of NI Act and as such would have to face trial and discharge the onus of burden of proof before the trial Court.

-

8. Heard the learned counsel for the petitioner, learned Assistant Public Prosecutor for the State and the learned counsel appearing for the 2nd respondent. Perused the material on record.

9. The short point for consideration in this petition is whether the notice dated 27.01.2023 issued by the 2nd respondent to the petitioner can be considered as a statutory notice issued under Section 138 of NI Act or no