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2005 Supreme(Bom) 1259
IN THE HIGH COURT OF BOMBAY
RAMNARAYAN s/o MADANLAL KHANDELWAL
Versus
PROPRIETOR, DAULAT ENTERPRISES
Decided Date: 19/09/05
Headnote:Negotiable Instruments Act, 1881 - Section 138 - Notice of demand. - Part payment having made by drawer, notice demanding balance amount which was lesser than cheque amount would not make notice of demand invalid. - Cheque for an amount of Rs. 3,64,764/- was issued on 28.3.1999 by the drawer on account of credit purchases made by him. Thereafter the drawer made part payment of Rs. 1,50,000/-. However, the balance amount was not paid and hence on 10.4.1999 the said cheque was presented but it was dishonoured. In the notice of demand, details of transactions as well as part payment made by the drawer were mentioned and the balance amount of Rs. 2,14,764/- was claimed. On the said payment not being made, complaint under Section 138 of the Negotiable Instruments Act was filed under the Negotiable Instruments Act, on which process was issued by the Magistrate. The order issuing process was challenged by the drawer in revision application and the same came to be allowed by the Additional Sessions Judge on the ground that the demand notice was invalid. In Criminal Writ Petition challenging the said order.
Held, that the notice of demand had given all the particulars of the liability of the drawer, the amount of cheque issued by the drawer, part payment made by the drawer as well as the amount that remained to be paid. There was no ambiguity in the notice of demand. It could not be said that the said notice was invalid. Order quashing criminal proceedings set aside and complaint case restored to file for being decided on merits. 1999 (3) Crimes 504 - Referred; 1997 (1) Crimes 127; 2000 (2) Mh LJ 310 (SC) and 2003 (4) Mh LJ 1081 (SC) - Distinguished.
Criminal Procedure Code, 1973 - Sections 482 and 202 N.I. Act, 1881, Section 138 Cheque dishonoured Demand notice, whether for full amount Sessions Court view Issue of process set aside Revision Contention Full amount of cheque be noticed Whole amount Written Part payment made Sessions Court should not have set aside issue of process. The petitioner has given all the particulars of the liability of the respondents, the amount of cheque issued by the respondents, the part payment made by the respondents and the amount which remained to be paid by them. Thus there is no ambiguity in the notice of demand in the present case. If the submission is to be accepted then it will have to be held that despite part payment made by the respondents, the petitioner was obliged to make demand of the entire amount of cheque which would obviously be improper and impermissible.
( 1 ) BY this petition under Article 227 of the constitution of India read with section 482 of the Code of Criminal Procedure the petitioner/original complainant seeks to quash the judgment dated 31-3-2004 passed by 2nd Additional Sessions Judge, Nagpur in Criminal Revision no. 1047/1999 quashing the order of issuance of process dated 19-6-1999 by judicial Magistrate, First Class, Narkhed in Criminal Complaint Case No. 100/1999 and dismissing the complaint.
( 2 ) ACCORDING to the petitioner he is the Director of Omkar Polymer Private limited, Narkhed and is engaged in the business of manufacturing Chetak Rigid pvc Pipe. Respondent No. 2 is the proprietor of respondent No. 1 dealing in pvc pipe and is the customer of the petitioner. In pursuance to the order placed by the respondents the petitioner supplied PVC pipes. In order to discharge the liability on account of credit purchase made by the respondents they issued cheque for Rs. 3,64,764/- on 28-3-1999 drawn on Bombay Mercantile co-operative Bank Limited, Solapur. Thereafter the respondents made payment of rs. 1,50,000/- by demand draft towards part payment of the amount of the said cheque. However the respondents failed to pay the remaining amount of the said cheque. On 10-4-1999 the petitioner presented the cheque to State Bank of India, branch Narkhed. The same was dishonoured by intimation dated 28-4-1999.
( 3 ) ON 11-5-1999 the petitioner issued a notice of demand to the respondents bringing out all the details of the transactions and part payment made by the respondents to the petitioner. The respondents did not make payment in spite of demand notice having been served on them. Hence on 19-6-1999 the petitioner filed Criminal Complaint Case No. 100/1999 against the respondents before the judicial Magistrate, First Class, Narkhed. On the same day the learned Magistrate issued process against the respondents under section 138 of the Negotiable instrument Act and under section 420 of the Indian Penal Code. In fact, section 138 is of Negotiable Instruments Act which is not mentioned in the impugned order. The issuance of process was challenged by the respondents by Criminal Revision no. 1047/1999. By order dated 31-3-2004 the 2nd Additional Sessions Judge, nagpur allowed the revision, set aside the order of issuance of process and dismissed the complaint. The said order has been challenged by the petitioner.
( 4 ) I have heard Shri S. V. Purohit, Advocate for the petitioner and Shri r. M. Patwardhan, Advocate for the respondents.
( 5 ) SHRI Purohit submitted that the cheque passed by the respondents was for Rs. 3,64,764/ -. After issuance of the cheque the respondents made part payment of Rs. 1,50,000/ -. However the respondents failed to pay the remaining amount of Rs. 2,14,764/ -. Hence the petitioner presented the cheque. When it was dishonoured, the petitioner issued notice of demand pointing out all the details of the liability of the respondents and part payment made by them. By the said notice the petitioner claimed Rs. 2,14,764/- only. Thus there was no vagueness in the notice. The notice was perfectly legal. The Revisional Court was not justified in quashing the order of issuance of process on the ground that the demand notice was invalid. In support of his submission Shri Purohit relied on Andhra Engineering Corporation vs. M/s. T. C. I. Finance Ltd. Secunderabad and another, 1999 (3) Crimes 504.
( 6 ) SHRI Patwardhan, on the other hand, submitted that under section 138 of the Negotiable Instruments Act, it is necessary that the demand must be for the amount of cheque. No demand can be made for more amount than what has been mentioned in the cheque nor for less amount than the one mentioned in the cheque. Shri Patwardhan submitted that a notice of demand for any amount other than the cheque amount is invalid. He submitted that section 138 of the negotiable Instruments Act is a penal provision and it has to be construed strictly. He further submitted that
