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1995 Supreme(Cal) 162
High Court Of Calcutta
Nripendra Kumar Bhattacharyya
GOPA DEBI OZHA - Appellant
Versus
SUJIT PAUL - Respondent
CRI. REV. 2121 Of 1994
Decided On : 05/08/1995
Ajit Kumar Ghosh, SEKHAR KUMAR BASU, Sunit Dev
A notice under Section 138 of the Negotiable Instruments Act, 1881 must demand payment of the cheque amount. A notice demanding payment of a higher amount is invalid.
Headnote:
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTIONS 7, 8, 138, 142 - INTERPRETATION - 'PAYEE' AND 'HOLDER' - NOTICE UNDER SECTION 138 - REQUIREMENTS - STRICT CONSTRUCTION - DEMAND FOR PAYMENT - AMOUNT SPECIFIED IN CHEQUE - MANDATORY - NOTICE DEMANDING HIGHER AMOUNT - INVALID.
Fact of the Case:
The petitioner issued a cheque for Rs. 5,79,000/- drawn on United Bank of India in favor of the opposite party. The cheque was dishonored due to insufficient funds. The opposite party sent a notice demanding payment of Rs. 6,50,000/- within 15 days. The petitioner failed to pay the amount, and the opposite party filed a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Finding of the Court:
The court held that the notice demanding payment of Rs. 6,50,000/- was invalid as it did not comply with the requirements of Section 138 of the Negotiable Instruments Act. The court also held that the complaint filed by the opposite party was not maintainable as the notice was invalid.
Issues: 1. Whether the notice demanding payment of Rs. 6,50,000/- was valid? 2. Whether the complaint filed by the opposite party was maintainable?
Ratio Decidendi: 1. The court held that the notice demanding payment of Rs. 6,50,000/- was invalid as it did not comply with the requirements of Section 138 of the Negotiable Instruments Act. The court held that the notice should have demanded payment of the cheque amount, which was Rs. 5,79,000/-. The court also held that the notice was vague and insufficient as it did not specify the amount that the petitioner was required to pay. 2. The court held that the complaint filed by the opposite party was not maintainable as the notice was invalid.
Final Decision: The court allowed the revisional application and set aside the order impugned.
( 1 ) BY this revision the accused petitioner has challenged the order dated 26. 7. 94 passed in complaint case No. C/314/94 by the learned Chief Metropolitan Magistrate, Calcutta under section 138 of the Negotiable Instrument Act, 1881 whereby the learned Magistrate took cognizance of the offence and directed issuance of process against accused No. 1, the petitioner herein.
( 2 ) A short conspectuous of the case is that the petitioner and her husband Ghanashyamlal Oza held 620 shares of Messers. Nazareth Engineering Company Private Limited and they agreed to transfer 50% of such shares of the said company to the opposite party herein and her wife Smt. Shauli Paul. The consideration was fixed at Rs. 6,50,000/- for transfer of such shares and the opposite parties paid Rs. 5,00,000/- in cash and the balance of Rs. 1,50,000 by bank draft.
( 3 ) THE petitioner herein and her husband failed and neglected to transfer the said shares in favour of the opposite party herein and her wife nor did the petitioner and her husband return the said sum or any part thereof to them.
( 4 ) ON 11-6-94 the petitioner issued a cheque for an amount Rs. 5,79,000/drawn on United Bank of India, Lansdowne Branch, Calcutta in favour of the opposite party and her wife and on the same date, the said cheque was deposited by the opposite party herein and his wife in their bank account at Fariapukur Branch, Calcutta but the cheque was returned with the Bank endorsement "insufficiency of funds into the account. "
( 5 ) ON 24-6-94 the opposite party herein through his learned Advocate sent a notice demanding payment of money of Rs. 5,79,000/- within 15 days from the date of receipt of the said notice.
( 6 ) FROM the record it appears that actually a demand was made for a payment of amount not 5,79,000/- but 6,50,000/ -.
( 7 ) THE petitioner and her husband alleged that the said legal notice was not received on 1-7-94 and in fact they received it on 29. 6. 94 and replied that notice. However, they failed and neglected to pay the said sum to the opposite party and her wife hence the petition of compliant by the opposite party.
( 8 ) MR. Sunit Deb, the learned Advocate appearing with Advocate Mr. A. K. Ghosh contended for the petitioners in reference to Section 142 of the Negotiable Instruments Act, 1881 that no court shall take cognizance of any offence punishable under section 138 except upon a complaint in writing, made by the payee or, as the case may be, the holder in due course of the cheque. He contended that in the instant case the cheque was drawn in the name of the opposite party No. 1 herein and his wife Smt. Shouli Paul and that the meaning of 'payee' as appears in section 142 of the Negotiable Instrument Act should be read in reference to section 13 (2) of the General Clauses Act, 1887 which means that the words in singular shall include the plural, and vice versa.
( 9 ) ACCORDING to him as the cheque was drawn in the name of opposite party No. 1 and his wife Smt. Shouli Paul a complaint by both of them is competent and not by either of them and upon such complaint by either of them the court was not competent to take cognizance of the offence.
( 10 ) THAT was also the argument in reference to section 138 of the Negotiable Instrument Act where the term 'person' has been used in that Section.
( 11 ) FROM the record it appears that the notice was issued under section 138 only on behalf of the opposite party No. 1 herein by his lawyer.
( 12 ) ACCORDING to Mr. Deb the said notice is also illegal as the notice was not given by the opposite party No. 1 and his wife but by the opposite party No. 1 alone.
( 13 ) HIS second contention was that the amount claimed in the notice was Rs. 6,50,000/- but the complaint has been made for a sum of Rs. 5,79,000/- and as such either the complaint is bad or the notice is bad.
( 14 ) THE third contention of Mr. Deb was that though all the papers were not before the Court but as the paper
