IMPORTANT POINT
Mere mentioning of wrong number of dishonoured cheque in notice under Section 138, not a ground for quashing of complaint.

C.Y. Somayajulu, J.—1st respondent filed C.C. No. 201/2002 on the file of the Additional Judicial First Class Magistrate, Addanki, under Section 138 of the Negotiable Instruments Act (for short the Act) against the petitioner in connection with the dishonour of cheque for Rs. 97,000/- allegedly issued by him (petitioner).

2. Petitioner filed Cri. M.P. No. 1612/2003 seeking an Order of discharge mainly on the ground that there is a variation in the number of the cheque mentioned in the notice of dishonour with demand for payment and the complaint, and the cheque filed into Court. The learned Magistrate, by the Order under revision, dismissed the said petition. Hence, this revision.

3. The main contention of the learned Counsel for the petitioner is that since the offence under Section 138 of the Act is a technical offence, complainant who does not strictly comply with the mandatory requirements of the statute cannot take shelter under a typographical error and since the number of the cheque dishonoured is mentioned in the notice as 762870, and since, the number of the dishonoured cheque is mentioned in para 2 of complaint as 762570, and since the cheque filed into Court does not bear either No. 762870 or 762570 the complaint against the petitioner is liable to be quashed. He placed strong reliance on M/s. Yankay Drugs and Pharmaceuticals Limited v. M/s. Citi Bank1, in support of his contention that plea of a complainant relating to typographical error cannot be accepted in proceedings under Section 138 of the Act.

4. M/s. Yankay Drugs and Pharmaceuticals Limited case (supra) has no application to the facts of this case. In that case the cheque issued for Rs. 9,972/- was dishonoured. In the statutory notice of dishonour the cheque amount was mentioned as Rs. 3,871/-. After the complaint filed by the payee of the dishonoured cheque was taken on file, the drawer of the cheque filed a petition under Section 482, Cr.P.C. to quash the complaint on the ground that the amount mentioned in the notice of dishonour is not correct. The case of the complainant in that case was that the amount mentioned in the notice was a typographical error. The learned Judge relying on H.L. Aggarwal v. Rakesh Aggarwal2 and Suman Sethi v. Ajay K. Churiwal3, held that since giving notice and demanding payment of the amount covered by the dishonoured cheque is the essential ingredient of the offence under Section 138 of the Act, and since the amount mentioned in the statutory notice does not tally with the amount for which the dishonoured cheque was issued, the complaint is liable to be quashed.

Here, I feel it relevant to extract Section 138 of the Act. It reads:

“Where any cheque drawn by a person on an account maintained by him with a Banker for payment of any amount of money to another person from out of that account for the discharge in whole or in part of any debt or other liability is returned by the Bank unpaid either because of the amount of money standing to the credit of that account, is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that Bank such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless—

(a)the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

(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 notice, in writing to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and

(c)