IMPORTANT POINT
Notice given to drawer of the cheque without furnishing sufficient details is invalid and proceedings pursuance thereof would be illegal.

S.A. Bobde, J.—Rule, returnable forthwith.

The learned counsel for the respective respondents waive service.

Heard by consent.

2. This is an application under Section 482 of the Code of Criminal Procedure challenging the issue of process under Section 138 of the Negotiable Instruments Act, 1881.

3. Mr. Jaisinghani, the learned counsel for the petitioner, has challenged the process only on one ground viz. that the notice dated 4.5.2007 preceding the launch of prosecution is not in accordance with law. According to the learned counsel, the notice does not specify the cheque number nor the amount and is, therefore, not a notice as contemplated by Section 138 of the Negotiable Instruments Act. The prosecution is thus in contravention of Section 138 which provides that the Section 138 will not apply unless the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing. The relevant proviso reads as follows:

“Provided that nothing contained in this section shall apply unless:

(a) …………………….

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

(c) ……………………..

There is no doubt that a notice making a demand of the amount is a pre-condition launch of a prosecution under this section.

4. The material statement in the notice reads as follows:

“As per the Agreement it was agreed you will orally instruct to deposit the cheques and according to your own instructions all your three cheques were deposited on 26th April, 2007 which were to be deposited in January, 2007, Feb. 207 and March 2007.

We have favoured you at the most on your request and the cheques were deposited on your oral instructions to us. It is surprised and shocking that all your three pending cheques have bounced with the note ‘stopped payment by Drawer’”.

At the end, the demand is made in the following words:

”Please issue us pay order of Rs. 26,00,000 (rupees twenty six lakh only) (balance payment in lieu of the above three bounced cheques plus interest @ 12% for the entire delay period and Rs. 10,00,000 (sic) towards cheque bouncing charges immediately upon receipt of this letter”.

The notice does not state the numbers of cheques, the date on which the cheques were issued and the amount of each cheque. Only the words “above three bounced cheques” in the demand at the end of the notice suggests that there are three cheques in question. In short, it is not possible to understand in respect of which cheque the demand is made.

5. It is true that Clause (b) of the proviso to Section 138 does not specify that amount of each cheque specifically. It is, however, obvious from the purport of the proviso that a notice is provided for in order to give .the drawer of the cheque or cheques in question a clear notice that the cheque issued by him has been returned unpaid. Clause (b) contemplates that the payee of the cheque shall make a demand for the payment of the said amount of money along with information received by him from the Bank regarding “the return of the cheque as unpaid”. The article “the” is consciously used to refer to the cheque or cheques which has been returned unpaid. The purpose of Clause (b) of the proviso is to make the liability of punishment imposed by Section 138 conditional upon a notice issued to the drawer of the cheque. The notice, therefore, contemplated must be clearly a notice which enables the drawer of the cheque to identify the cheque which has been returned as unpaid and thereupon either to make good the loss or face prosecution. Indeed, the communication of sufficient details necessary for identification, is obviously necessary since such details alone will enable the drawer of the cheque to make payment of th