IMPORTANT POINT
If cheque amount and incidental charges are separable, notice cannot be held to be invalid.

Harbans Lal, J.—This appeal is directed against the judgment dated 12.7.2008 passed by the court of learned Judicial Magistrate 1st Class, Hisar whereby she dismissed the complaint lodged under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as the Act) and acquitted the accused.

2. The allegations in the complaint are that the complainant M/s Luxmi Enterprises, Gali No.4B, Surya Nagar, Hisar deals in the sale and purchase of recycled lubricating oil etc. This firm had business dealing with the accused firm respondent No.1 through its proprietor accused No.2. On 13.3.2002 the accused .No.2 issued a cheque No.454067 dated 13.2.2003 for Rs.74,693 drawn on Bank of Baroda, Churu on behalf of firm accused No. 1 to the complainant in discharge of its liability as payment of the price of goods purchased vide bill No.1248 dated 13.2.2003 .The cheque was presented for collection. The same was bounced and returned vide memo dated 13.2.2003 with the remarks, “Account closed.” The requisite intimation in this behalf was given to the complainant by its banker vide memo dated 20.3.2003. A registered notice dated 1.4.2003 was issued to the accused calling upon to make the; payment of the cheque amount. The notice was served upon the accused on 8.4.2003, but despite that they failed to make the payment of the cheque amount.

3. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court dismissed the complaint as noticed at the outset. Feeling aggrieved therewith, the appellant has preferred this appeal against the impugned judgment.

4. I have heard the learned counsel for the parties, besides perusing the record with due carte and circumspection,

5. The learned counsel for the appellant vehemently urged that the learned trial Court has erroneously observed that notice Ex. P4 served by the appellant on accused/respondent is invalid as the accused has been asked to make the payment of Rs.74,693 along with Rs. 390 as incidental charges. The learned Magistrate has further gravely erred in observing that the notice should have been qua the cheque amount only and no other charges could have been asked for from the accused and such type of notice is non-est and invalid and does not fulfil the requirements of the Act. This view is wholly unsustainable in the light of law laid down by the Apex Court in Suman Sethi v. Ajay K. Churiwal.1

6. To overcome these submissions, the learned counsel for the accused/respondent pressed into service that by claiming the amount of Rs.390 on account of incidental charges in the notice, it has been rendered invalid. This contention merits rejection for the discussion to follow hereunder:

7. The learned trial Court has observed that “a perusal of the notice dated 1.4.2003 reveals that the complainant has called upon the accused to make the payment of Rs.74,693, the cheque amount along with the incidental charges of Rs.390 which were debited from the account of the complainant as collection charges etc. incurred on the said cheque on its presentation to the bank for collection purposes, It is settled law that notice of the dishonour of the cheque must be of the cheque amount only and if a bigger or smaller amount is claimed in the notice it is not a valid notice and the same is considered to be a vague and insufficient notice.” A meticulous perusal of the impugned judgment would reveal that as a matter of fact, the complainant has been non-suited merely because of the fact that an amount of Rs.390 on account of incidental charges has been added in the notice Ex. P4. In Suman Sethi (supra) the Supreme Court has observed as under:

“9. In Section 138 legislature clearly stated that for the dishonoured cheque the drawer shall be liable for conviction if the demand is not made within 15 days of the receipt of notice but this is without prejudice to any other provision of the Act. If the cheque amount is pa