The demand notice under section 138 of NI Act should specifically ask for the payment of the cheque amount within the stipulated period.

JUDGMENT

Sudhir Kumar Jain, J.

1. The present petition is filed under section 482 Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") for quashing of the impugned order dated 28.06.2018 (hereinafter referred to as the "impugned order") whereby notice under section 251 of the Code was given to the petitioners alongwith consequential proceedings passed in complaint titled as M/s Vishwakarma Metal Box & another V M/s Aryan biological Corporation & another bearing CC no. 17879/2016 by the Court of Sh. Mohit Sharma, Metropolitan Magistrate-01, District West, Tis Hazari Courts, Delhi (hereinafter referred to as the "trial Court").

2. The respondents no.1 and 2/complainants (hereinafter referred to as "the respondents") have filed a complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI Act") titled as M/s Vishwakarma Metal Box & another V M/s Aryan biological Corporation & another bearing CC no. 17879/2016 on the allegations that the respondent no. 2/Sanjay Gaur is carrying on wholesale business of metal boxes under the name and style of M/s Vishwakarma Metal Box, the respondent no. 1 being its sole proprietor. The accused no.2, namely, Anuj Singhal who is carrying on business in the name of M/s Aryan Biological Corporation i.e., the accused no.1 (hereinafter referred to as "the petitioners") approached the respondents for purchase of Metal Boxes.

2.1. The respondents sold metal boxes time to time to the petitioners and raised bills/invoices towards such sales subject to terms and conditions. The petitioners purchased goods from respondents during the period from 04.09.2011-18.10.2012 against which the demands were raised through 45 invoices with total value of Rs.65,57,525.23/-. The petitioners duly received and accepted the invoices. The sales were made against C-forms and the petitioner no.2 has represented and assured to the respondents to issue C-forms and accordingly VAT @ 2 % on the sale price was charged against the normal VAT of 12.5%. The petitioners were extremely irregular in payments against the raised invoices/bills and committed gross delays.

2.2. The petitioners towards part discharge of liability from time to time have already paid Rs Rs.47,64,953/- leaving behind unpaid balance of Rs.17,92,572.23/- The petitioners towards partial discharge of their contractual liability, issued 03 cheques bearing no. 419140, 419139 and 419138 dated 05.01.2013, 29.12.2012, 25.12.2012 drawn on State Bank of Patiala, Baroti, Tehsil- Kasauli, District Solan, Himachal Pradesh amounting to Rs 2,00,000/-, Rs 50,000/- and Rs.1,00,000/-, respectively. The respondents presented the said cheques in the Corporation Bank on 08.03.2013 for encashment but returned back unpaid due to the reason "Payment Stopped by the Drawer" vide return memo dated 08.03.2013. The respondents also served a legal notice dated 14.03.2013 to the petitioners. The petitioners despite service of legal notice did not make payment of cheque amount. The respondents being aggrieved, filed the complaint bearing CC no. 17879/2016. The trial court vide impugned order dated 28.06.2018 ordered for giving notice under section 251 of the Code to the petitioners.

3. The petitioners being aggrieved, filed the present petition to challenge the impugned order on the grounds that demand notice was issued to call upon the petitioners to pay Rs.17,92,572.23/- and not to pay cheque amount of Rs.3,50,000/- and as such notice was not the mandate of the NI Act. The impugned order is against law and is liable to be set aside. The trial court proceedings are arbitrary and based on conjectures and surmises. The respondents have already filed a suit bearing no. CivDJ/613323/2016 for recovery of Rs.17,92,572.23/- which is stated to be pending in the Court of Additional District Judge, West, Tis Hazari. It is prayed that the impugned order be quashed. The respondents also filed a short reply wherein it is stated that the fact