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2005(1) Bankmann 332
KERALA HIGH COURT
J.M. James, J.
Shamsudheen — Appellant
versus
Sounder Rajan — Respondent
Crl. A. No. 73 of 1998
Decided on 19.10.2004.
For the Appellant:V.N. Achutha Kurup & B.S. Swathy Kumar, Advocates.
For the Respondent: K. Harilal, Public Prosecutor.
IMPORTANT POINT
A notice of demand issued under clause (b) of the proviso to Section 138 of Negotiable Instruments Act, 1881 stating dishonoured cheque amount specifically and also claiming interest and costs of notice is a valid notice under the Act.
Headnote:Negotiable Instruments Act, 1881—Section 138 proviso (b)—Notice of demand under—Claiming the dishonoured cheque amount with interest and costs of notice at Rs. 400/-—Whether such a notice of demand could be considered as a valid notice under the Act? (Yes)—Appeal allowed.
Result: Appeal allowed.
Held: The above legal principles clearly lay down that if a notice is issued stating the cheque amount together with interest and costs and if the cheque amount is specifically demanded therein, it would then be a valid and legal notice as “the said amount” contemplated under clause (b) of the proviso to Section 138 of the Act is conveyed through the notice. If a total amount alone is demanded, whereby the accused was unable to know the actual amount covered by the cheque and, therefore, he was prevented from paying back the amount within the legally permitted period, that notice would be an invalid notice under the Act. In the case at hand, the cheque amount is Rs. 4,00,000/-. That amount has specifically been demanded through the notice. The other amounts demanded by the notice can be recovered only if appropriate civil proceedings are initiated against the accused. In view of the above legal position, as discussed above, the principle contained in Raj v. Rajan (supra) cannot be accepted as a good law. Therefore, I hold that the notice-dated 29.8.1995 issued by the complainant through his advocate is a valid notice under the Act. Hence, the learned Magistrate went wrong in applying the principle contained in the decision in Raj v. Rajan (supra) and consequently acquitting the accused. (Para 7)
J. M. James, J.—The question raised in this appeal is whether a notice issued under Clause (b) of the proviso to Section 138 of the Negotiable Instruments Act, (in short ‘the Act’) stating, apart from the cheque amount, the interest and cost, thereby demanding an amount more than the amount covered by the cheque, could be considered as a valid notice under the Act.
2. The appellant filed a complaint before the Judicial First Class Magistrate Court, Sasthamcotta, against the accused, as the cheque for Rs. 4,00,000/- issued by the accused was dishonoured. He had sent a notice stating, inter alia, as follows:
“Hence, you are hereby called upon and required to pay Rs. 4.00,000/- and with interest together with Rs. 200/- (two hundred only) being the cost of this notice within 15 days from the date of receipt of this notice failing which my client will be forced to launch necessary proceedings under Section 138 of the Negotiable Instruments Act and …..”
3. The accused filed Crl. M.P .1341 of 1997 before the Court below and prayed, relying on the principle of law laid down by this Court in Raj v. Rajan1, that the demand of the amount other than the cheque amount, including interest and cost, could render the notice invalid as per the provisions of the Act and hence, the complaint will not lie. The Court below, therefore, allowed the petition and consequently dismissed the complaint. The same is under challenge before this Court through this appeal.
4. In the decision in Raj v. Rajan (supra), the complainant filed the appeal challenging the reversal of the conviction and sentence of the Magistrate by the Sessions Court and thereby acquitting the accused. A learned Single Judge of this Court appreciated the entire evidence adduced by the parties and held that the acquittal by the Sessions Court was legal. However, at paragraph 12 of the said Judgment the learned Single Judge also observed as follows:
“12.In the case at hand, the amount covered by the cheque is Rs. 40,000/-. But in the notice, it was not the said amount which was claimed, but that amount together with interest without specifying the amount of interest or the rate of interest. That certainly makes a notice vague and insufficient. It cannot be treated as a notice as contemplated by proviso (b) to Section 138 of the Act. In the circumstances, for want of the proper and legal notice also, the acquittal is sustainable.”
Hence, the acquittal of the accused in that case was sustained not only because the notice was insufficient, but it was on merit also.
5. In Kunjan Panicker v. Christudas2 this Court had an opportunity to consider whether the demand of the cheque amount together with interest and cost, would be an inadequate notice under the provisions of the Act. This Court clarified that if the notice had stated the cheque and demanded the same, together with interest and costs, that notice would not be bad in law and it is also not barred by law. If the accused paid the amount within the statutory period of 15 days, then the dismissal of the petition would be legal. Under the provisions of Section 138 of the Act, the cheque amount alone need be demanded. Even if other demands are made, the complainant may have to seek recovery of such amounts, other than the cheque amount, in appropriate civil proceedings. On the other hand, if an omnibus demand is made without specifying the cheque amount, that notice would, obviously, be an invalid notice, which would be insufficient under the provisions of the Act.
6. In Suman Sethi v. Ajay K. Churiwal3 the Apex Court had an occasion to consider the sufficiency of the notice, which contained a demand of the cheque amount together with interest and costs. The Court held that “the said amount” mentioned in Section 138 of the Act is the cheque amount. Further, the Supreme Court held as follows:
“7. There is no ambiguity or doubt in the language of Section 138. Reading the entire section as a whole and applying common sense, from
