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2010(1) Bankmann 346 (Del.)
DELHI HIGH COURT
V.K. Jain, J.
M/s. Alliance Infrastructure Project Pvt. Ltd. & Ors. —Appellants
versus
Vinay Mittal —Respondent
Criminal M.C. No. 2224 of 2009
Decided on 18.1.2010
For the Appellant:Ms. Rebecca M. John and Mr. Shivam Sharma, Advocates.
For the Respondents:Mr. H. Hariharan, Advocate.
IMPORTANT POINT
Notice of demand which requires drawer of cheque to make payment of whole of cheque amount, despite receiving a substantial amount against that very cheque, much before issue of notice, is illegal.
Headnote:(i)Negotiable Instruments Act, 1881— Section 138(b)—Dishonour of cheque—Notice—When principal amount claimed in notice of demand is more than the principal amount actually payable to payee of cheque and notice also does not indicate basis for demanding excess amount, such a notice cannot be said to be a legal and valid notice envisaged in Section 138(b) —In such a case, it is not open to complainant to take the plea that drawer of cheque could have escaped liability by paying actual amount due from him to payee of cheque—In order to make notice legal and valid, it must necessarily specify principal amount payable to payee of cheque and principal amount demanded from drawer of cheque should not be more than actual amount payable by him though addition of some other demands in the notice by itself would not render such a notice illegal or invalid. (Para 12)
(ii)Negotiable Instruments Act, 1881—Sections 138(b) and 56—Dishonour of cheque—Adjustment of part payment—It would be open to payee of cheque to present cheque for payment of only that much amount which is due to him after giving credit for part-payment made after issuance of cheque—Notice of demand which requires drawer of cheque to make payment of whole of cheque amount, despite receiving a substantial amount against that very cheque, much before issue of notice, cannot be said to be a legal and valid notice envisaged in Section 138(b)— Expression ‘amount of money’ used in Section 138(b), in a case of this nature would mean amount actually payable by drawer of cheque to payee of cheque—If payee of cheque makes some demands on account of interest, compensation, incidental expenses etc, that would not invalidate notice so long as principal amount demanded by payee of cheque is correct and is clearly identified in notice—Amount covered by cheque would necessarily mean principal amount due to payee after giving credit for part-payment received by him — If the notice does not specifically demand that particular amount, it would not be a valid notice and would not fasten criminal liability on account of its non-compliance. (Paras 12 to 15)
V.K. Jain, J.—This order will dispose of the above referred petitions. Petitioner No.1 Alliance Infrastructure Project Private Ltd., issued a cheque dated 2nd May, 2008 for a sum of Rs. 30,86,000/- and another cheque of the same date for Rs.12 lakhs in favour of the complainant/respondent. The cheques, when presented for encashment, were returned unpaid with the remarks “signature different.” When the complainant/respondent approached the petitioners in this regard, they issued three other cheques, one for Rs.12 lakhs, second for Rs. 3,29,000/- and the third for Rs. 31,91,650/- in lieu of the previously dishonoured cheques. The cheques for Rs.12 lakhs and Rs. 3,29,000/- were en-cashed when presented to the bank, but the cheque for Rs. 31,91,650/- was returned unpaid with the remarks “stop payment by the drawer”. A legal notice dated 23rd January, 2009 was sent to the petitioners calling upon them to make payment within 15 days from the receipt of notice. The petitioners, however, did not make the payment whereupon a complaint under Section 138/141 of Negotiable Instruments Act read with 141 thereof and also under Section 420 of IPC was filed against them. The petitioners, however, have been summoned only under the provisions of Negotiable Instruments Act. Being aggrieved, the petitioners have filed Criminal Misc. Case 2225/2009 assailing the summoning order.
2. Petitioner No.1 had also issued two other cheques both dated 5th May, 2008; one of Rs. 47,84,000/- and the other for Rs. 18,60,000/- to the respondent. The cheque for Rs. 18,60,000/- was honoured, but the cheque for Rs. 47,84,000/-was returned unpaid. When the complainant/respondent approached the petitioners in this regard, they promised to pay the cheque amount within two-three days and thereafter issued another cheque for Rs. 49,47,600/- in lieu of the previous cheques. The cheque of Rs. 49,47,600/-, when presented to the bank, was returned with remarks “funds insufficient”. Consequently, the complaint subject matter of criminal case No. 2224/2009 was filed by the respondent against the petitioners, who were summoned under the provisions of Negotiable Instruments Act:
3. It is an admitted case that after issue but before presentation of cheque of Rs.49,47,600/-, petitioner No.1 paid a sum of Rs.16,50,000/- to the complainant/respondent on 7th of October, 2008 by way of RTGS transfer. Though the receipt of the aforesaid amount of Rs.16,50,000/- has not been acknowledged in the legal notice dated 19.12.2008 issued by the respondent through his counsel Mr. Vijay Kumar, when the complainant came in the witness box before the trial- court on 11th of September, 2009, he admitted receipt of this payment and also stated that after the receipt of the aforesaid amount on 7th of October, 2008 a sum of Rs. 32,97,600/- remained due to him. Admittedly, cheque of Rs. 49,47,600/- was presented to the bank much after the receipt of the aforesaid sum of Rs. 16,50,000/-, the cheque having been returned vide memo dated 22.12.2008. As is evident from the legal notice itself, the complainant required the petitioner to make payment of Rs. 49,47,600/-, though the amount due to him on that date, as per his own showing, was only Rs. 32,97,600/-. Thus, not only the complaint presented the cheque of Rs.49,47,600/- for encashment but he also made a demand for the said amount despite the fact that the amount payable to him even on the date of presentation of the cheque was only Rs.32,97,600/-.
4. As regards the cheque of Rs.31,91,650/- which is the subject matter of Crl.M.C.2225/09, admittedly, after this cheque was returned, for the first time, vide memo dated 4.10.2008, the petitioner made a payment of Rs.10,50,000/- to the complainant/respondent on 20th of October, 2008. The receipt of this payment has been acknowledged in para 7 of the legal notice dated 23.1.2009 sent by the complainant/respondent to the petitioner. After receipt of aforesaid payment of Rs. 10,50,000/-, admittedly,
