IMPORTANT POINT
Prosecution cannot be based on omnibus demand notice.

M.R. Shah, J.—The present application under Section 482 of the Code of Criminal Procedure has been preferred by the applicant herein - original accused to quash and set aside the impugned complaint being Criminal Case No.1517 of 2008 pending in the Court of learned Metropolitan Magistrate, Court No.15, Ahmedabad filed by respondent No.1 herein- original complainant for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”).

2. Respondent No.1 herein original complainant has filed the impugned complaint/Criminal Case against the applicant herein- original accused in the Court of learned Metropolitan Magistrate, Ahmedabad for the offence punishable under Section 138 of the Negotiable Instruments Act for dishonour of cheque No. SA 7-287361 dated 20.6.2008 for an amount of Rs.4,25,000. It is averred in the said complaint that the said cheque was dishonoured by the Bank with an endorsement “Funds Insufficient” and thereafter, the applicant herein-original accused was served with the statutory notice dated 30.6.2008 as required under Section 138 of the Negotiable Instruments Act and despite the service of the same, cheque amount has not been paid and, therefore, it is alleged that the applicant herein has committed an offence punishable under Section 138 of the Negotiable Instruments Act. That in the said complaint, learned Magistrate has directed to issue summons against the applicant for the offence punishable under Section 138 of the Negotiable Instruments Act. Being aggrieved by and dissatisfied with the impugned complaint/criminal case as well as the order passed by learned Magistrate issuing summons against the applicant herein for the offence punishable under Section 138 of the Negotiable Instruments Act, the applicant herein-original accused has preferred the present application under Section 482 of the Code of Criminal Procedure.

3. Mr. N.A. Shaikh, learned advocate appearing on behalf of the applicant herein original accused has submitted that the Notice dated 30.6.2008 cannot be said to be a Notice of Demand as per proviso (b) of Section 138 of the Negotiable Instruments Act in as much as in the said Notice, there was no specific demand of cheque amount. It is submitted that in the statutory Notice as contemplated under proviso (b) of Section 138 of the NI Act, there must be a demand for the cheque amount. It is submitted that as held by Hon’ble Supreme Court in the case of Suman Sethi v. Ajay K. Churiwal and another1, if no such demand is made, the notice would fall short of its legal requirement. Therefore, it is requested to allow the present application and to quash and set aside the impugned complaint/Criminal Case.

4. Mr. N.A. Shaikh, learned advocate appearing on behalf of the applicant herein has further submitted that in view of the subsequent development and selling the truck for which the loan was taken, there was no legal debt and liability for an amount of Rs.4,25,000 existing on the drawer of the cheque dated 20.6.2008. As such initially when the loan was advanced, post-dated blank cheques for installments were obtained and despite the fact that truck, for which the loan was advanced, was sold, the complainant misused the cheque and filled the cheque amount and deposited the same, though at the relevant time there was no such liability for an amount of Rs.4,25,000. Therefore, relying upon the decisions of this Court rendered in the case of Arvind Maneklal Tailor v. State of Gujarat and another2 as well as in the case of Bharatbhai K. Patel v. C.L.Verma (Since Decd.), through P.O.A. Surjit Singh Maeker & Anr.3 it is requested to allow the present application.

5. Mr. N.A.Shaikh, learned advocate appearing on behalf of the applicant herein original accused has vehemently submitted that even in the affidavit in reply filed in the present application, the complainant has come out altogether with a difference case, which was not the case in t