IMPORTANT POINT
The legal notice must demand only the cheque amount for the maintainability of a complaint under Section 138 of the NI Act, as per the interpretation of Proviso (b) to Section 138 of the NI Act.

JUDGMENT

Navin Chawla, J. (Oral) - This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, `Cr.P.C.'), praying for quashing of complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (in short, `NI Act') in Complaint Case No.437/2019 titled Piyush Nautiyal v. Honey Verma, on the ground that the legal notice dated 06.01.2019 issued by the respondent prior to the filing of the complaint is not in terms of the proviso appended to Section 138 of the NI Act.

2. The Complaint has been filed by the respondent/complainant that a cheque bearing No. 684791, dated 02.12.2018 for Rs.2,00,000/- was drawn on the Punjab National Bank, which was returned unpaid. Thereafter, the respondent/complainant issued a legal notice dated 06.01.2019, as provided under Section 138(b) of the NI Act. As the petitioner did not pay the amount, the respondent filed the complaint under Section 138 of the NI Act. Summons were issued to the petitioner on the Complaint vide order dated 01.02.2019.

3. In spite of service of notice of this petition, none is appearing for the respondent.

4. The learned counsel for the petitioner submits that while the cheque was for a sum of Rs.2 lacs, in the legal notice dated 06.01.2019, the respondent has called upon the petitioner to pay a sum of Rs.1,90,000/- without explaining why an amount different from the purported cheque amount is being demanded. Placing reliance on the judgments of the Supreme Court in Suman Sethi v. Ajay K. Churiwal and Another, (2000) 2 SCC 380; K.R. Indira v. Dr.G. Adinarayan, (2003) 8 SCC 300; and Rahul Builders v. Arihant Fertilizers & Chemicals and Another, (2008) 2 SCC 321, he submits that for the maintainability of the complaint under Section 138 of the NI Act, the notice must demand the cheque amount alone.

5. I have considered the submission made by the learned counsel for the petitioner.

6. Section 138 of the NI Act reads as under:

"138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, 5 within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.-For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability."

7. Interpreting Proviso (b) to Section 138 of the NI Act, the Supreme Court in the above referred judgments has held that the notice must demand only the cheque amount.

8. In Rahul Builders (Supra), the Supreme Court opined as under:

"10. Service of a notice, it is trite, is imperative in character