2022 Supreme(Guj) 698

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SONIA GOKANI, J.
Dashrathbhai Trikambhai Patel – Appellant
Versus
Hitesh Mahendrabhai Patel & 1 other(s) – Respondents
R/Criminal Appeal No. 1488 of 2016
Decided on : 12-01-2022

Headnote:

Constitution of India,1950 - Articles 20, 21 and 136 - Code of Criminal Procedure, 1973 - Sections 391 And 313 - Indian Penal Code,1860 – Section 408, 417, 418 and 423 - Negotiable Instrument Act - Sections 118 ,56, 138 and 139 - Evidence Act - Section 114 - Dishonor of cheque - Fund insufficient Respondent is the father-in-law of elder son of complainant - appellant, who resided in the very village - They shared very good terms and enjoyed a cordial relationship - Respondent is having business of a contractor and was in need of money he contacted complainant appellant - He requested to arrange for cash and as the complainant had cordial terms, the said amount was lent - Respondent promised same to be repaid in six months’ period - When demanded back was drawn from the State Bank of India having its branch - legal notice was which was within the prescribed period of limitation - Upon service of notice, a reply through the advocate has been given by respondent - He agreed of having accepted this amount same has not been paid. Therefore, the complaint came to be filed under Section 138 of N.I.Act, and the same was registered as Criminal - Complainant and witnesses were examined and various documents had been exhibited - Trial Court acquitted respondent on ground that the cheque was not given for a legally enforceable debt - Not only complainant had made a transaction through bank, he had also shown this amount in the Income Tax return and yet, Court had not convicted the accused respondent for non-payment - Liability also had been accepted by the respondent - appellant, liability for the remaining amount of debt would continue of the respondent and that has also not been considered by the Trial Court - Presumption, which has been made available under Section 139 of N.I.Act, has not been rebutted by respondent accused. presumption is available that there is a default in paying the bank the legally enforceable debt - Allegations averments and contentions raised in the affidavit. According to this respondent, onus lies on the accused under Section 139 of N.I.Act to discharge burden by rebuttal is duly fulfilled - Respondent has proved of paying back the amount complainant which has not only been not denied by complainant, but, in terms accepted, he has sufficiently rebutted the presumption – Held, Demand was made of outstanding amount - Notice was required to respond to the said demand. There was no reference to the payment to the tune according to appellant also, said sum been gradually paid over a period of time issuance of cheque in question. It is only at the time of cross-examination that appellant has agreed to have received the said amount point of time, this has been either mentioned or accepted - Demand continued for amount of Rs. 20 lakhs. As has been held in case of Rahul Builders (supra), the importance of notice cannot be undermined - Non-revelation on the part of the appellant shall need to be viewed strictly. An attempt is made to distinguish the facts of this case from those in Rahul Builders (supra) by urging that amount of Rs. 4 lakhs (rounded off) was paid prior to issuance of cheque unlike in the matter before the Apex Court hardly distinguishing fact to nullify the need of specific reference of amount received - undated cheque was presented to the bank without the recognition of the amount of Rs. 4 lakhs (rounded off) and without putting drawer to any notice - When addition of interest, cost etc. also is held impermissible for calculating amount to be paid by the drawer of cheque, non-reference of the amount paid in the demand notice would surely make the notice omnibus - Demand is to be made for cheque amount - If no such demand is made in notice, the same would fall short of its legal requirement - There could be other additional claims which are severable like interest, damages, etc. and they would not invalidate the notice but, in the notice, if ominous demand is made without specifying what is due in dishonoured cheque, the notice would fail to meet the legal requirement - Object of notice is to give an opportunity to drawer of the cheque to absolve himself of the liabilities under Section 138 by making the payment of amount covered by cheque - chance to the drawer of the cheque to rectify his omission and also to protect honest drawer, if drawer of cheque is asked to pay more than the principal amount due from him and that amount is demanded as principal sum paid by him – Ordered Accordingly.