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2012(2) Bankmann 54 (Bom.)
BOMBAY HIGH COURT
A.P. Bhangale, J.
Yugalkishore Maniklal Bhattad
(HUF), through its Karta
Yugalkishore —Appellant
versus
Shrikrishna Gupta, Prop.,
M/s Maharashtra Lime Trading
Co. —Respondent
Criminal Appeal No. 557 of 2006
Decided on 27.3.2012
Counsel for the Parties:
For the Appellant:Mr. S.V. Bhutada, Advocate.
For the Respondent:Mr. R.K. Tiwari, Advocate.
IMPORTANT POINT
Penal liability under Section 138 of N.I. Act arises only where a drawer refuses to rectify his mistakes.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Notice has to be read in its entirety and demand has to be made for amount due upon cheque—Legal liability under Section 138 can be discharged if cheque amount is said—In proceedings under Section 138 hyper technical approach should be avoided—For making out case under Section 138 what is required to be considered mainly is, whether cheque is issued by accused which has been signed by him and whether such cheque has been dishonoured or not—Accused is supposed to know his liability when he issues a cheque—He cannot be allowed to put forward a lame excuse later on while facing prosecution that bank account was closed when cheque was issued. (Para 5)
(ii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Dismissal of complaint—Cheque issued from a closed account—Mere dishonouring of a cheque cannot implicate drawer of cheque for offence under Section 138—Ground under which cheque was dishonoured is not very material—Fact that cheque was dishonoured by itself is not very much material—Penal liability under Section 138 arises only where a drawer refuses to rectify his mistakes. (Para 6)
(iii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Notice—Notice has to be read as a whole—In the notice demand has to be made for cheque amount—If no such demand is made notice would fall short of its legal requirement—Where in addition to said amount there is also a claim by way of interest cost etc. whether notice is bad would depend on language of notice—If in a notice while giving up break up of claim the cheque amount, interest damages etc. are separately specified, other such clam for interest, cost etc. would be superfluous and these additional clam would be severable and will not invalidate notice—If however, in notice omnibus demand is made without specifying what was due under dishonoured cheque, notice might well fail to meet legal requirement and may be regarded as bad. (Para 8)
(iv) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code,1973—Section 378—Dishonour of cheque—Dismissal of complaint—Appellant/complainant has duly proved that respondent/accused had issued cheque for Rs.50,000 for discharge of legally enforceable debt or liability—It is further established on record that in spite of service of statutory notice respondent/accused failed to make payment of cheque within 15 days and thereby committed offence punishable under Section 138—Impugned judgment and order of acquittal set aside—Respondent/accused held guilty of offence punishable under Section 138 and convicted. (Paras 13 to 15)
Result: Appeal allowed.
A.P. Bhangale, J.— The appeal is directed against the judgment and order dated 6.7.2006 passed by the Judicial Magistrate, FC, Nagpur (Special Court 2 Criminal Appeal 557/06 under Section 138 of the Negotiable Instruments Act) in Summary Criminal Case No.2543 of 2005 whereby the complaint was dismissed.
2. Briefly stated the facts are:
Complaint was filed on 29.11.2005 by the appellant against the respondent/accused complaining of an offence punishable under Section 138 of the Negotiable Instruments Act. The complainant had advanced a sum of Rs. 50,000 to the accused on account of acquaintance with him The accused had issued cheque bearing No.349135 dated 22.10.2005 drawn on the Nagpur Nagarik Sahakari Bank Limited, Itwari Branch, Nagpur for Rs. 50,000 which was admittedly signed by him. This cheque was presented by complainant to the UCO Bank, Sitabuldi Branch, Nagpur, but was returned back on 22.10.2005 with the remarks “account closed”. Legal notice dated 27.10.2005 had been issued to the respondent herein by registered post A/D calling upon the accused to make payment within fifteen days. After the expiry of the statutory period, payment having not been received, complaint under Section 138 of the Negotiable Instrument Act came to be filed.
3. I have perused the complaint. It specifically states that the accused had issued the cheque in discharge of his liability towards loan taken by him from the complainant. This cheque had been returned unpaid on 22.10.2005 under a memorandum with the remarks “account closed”. The cheque had been admittedly issued from an account which was maintained by the accused; cheque had been returned unpaid for the reason that the account stood closed and it is not the case of respondent that this account was not his account.
4. Learned counsel for the respondent-accused submitted that in the ruling in Suman Sethi v. Ajay Churiwal1 it is laid down that the notice has to be read as a whole. It depends upon the facts and circumstances. If omnibus demand is made without specifying exactly what was due under the dishonoured cheque, notice might well fail to meet the legal requirement.
5. It cannot be disputed that the notice has to be read in its entirety and the demand has to be made for the amount due upon the cheque. The object of notice is to give an opportunity to the notice accused to make amends for his omission to pay the cheque amount before the stipulated statutory period expires and before the complaint is lodged. Legal liability under Section 138 of the Act can be discharged if cheque amount is paid. In the proceedings under Section 138 of the Negotiable Instruments Act, a hyper technical approach should be avoided. For making out case under Section 138 of the Act, what is required to be considered mainly is, whether the cheque is issued by the accused which has been signed by him and whether such cheque has been dishonoured or not. The accused is supposed to know his liability when he issues a cheque. He cannot be allowed to put forward a lame excuse later on while facing the prosecution that the bank account was closed when the cheque was issued. There is statutory presumption under Section 139 of the Act that holder of the cheque received the cheque in discharge of a debt or other liability, unless specific evidence is led to rebut the presumption.
6. In the present case, it is not in dispute that the reason for dishonour of the cheque in question was closure of account. The question arises, as to whether it is a valid ground for dishonour of the cheque to claim exemption from penal liability. Learned counsel for the appellant has made reference to ruling in Shivendra Sansguiri v. M/s Adineo & Anr.2 In that case, the cheque was bounced with remarks “account closed”. This Court (T.K. Chandrashekhara Das, J, as he then was) observed that there could be so many circumstances both anticipated or unanticipated by the Legislature under which a Banker dishonoured a cheque and the Le
