The demand in the notice under S.138 must be for the cheque amount, and any additional claims beyond the cheque amount are severable and do not invalidate the notice.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 3.10.199/ passed by the Calcutta High Court in Criminal Revision No. 1611/9/. By the impugned judgment, the High Court set aside the order of the Metropolitan Magistrate 16th, Calcutta passed in case No. C/1661/96.

3. Briefly stated the facts are as follows:

The appellant issued a cheque for Rs. 20,00,000/- (Rupees Twenty lacs) in favour of respondent No. 1. The cheque was presented to the banker which was returned on 2nd August, 1996 with the remarks "Insufficient Fund". Thereafter within 15 days of return of the cheque, respondent No.1 gave a notice of demand as required under proviso (b) of S.138 of the Negotiable Instruments Act, 1881 as amended for short the Act. As the appellant failed to meet the demand a complaint was filed before the Metropolitan Magistrate. On perusal of the above notice the Magistrate was of the view that the demand made in the notice being higher than the amount of cheque, notice was bad in view of an earlier decision of the High Court. Respondent No.1 approached the High Court by filing the revision petition which was allowed by the impugned order and the order of the Metropolitan Magistrate was set aside. The High Court was of the view that the decision of the High Court on which reliance was placed by Magistrate was distinguishable. The High Court held that as in notice, respondent No.1 clearly demanded the cheque amount, the notice was a valid one and accordingly set aside the order of the Metropolitan Magistrate.

4. We have heard Dr. Rajeev Dhawan, learned senior counsel for the appellant, Mr. Sanjiv Sen, learned counsel for respondent No.1 and Mr. Dilip Sinha, learned counsel for respondent No. 2 the State of West Bengal.

5. The only question for consideration by us is whether the notice in question issued under proviso (b) to S.138 of the Act was valid or not. We extract below S.138 and 139 of the Act:

"138. Dishonour of cheque for insufficiency, etc., of funds in the account - Where any cheque drawn by a person on an amount 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 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 extend to one year, 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

(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, within fifteen 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". (Emphasis supplied)

"139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in S.138 for the discharge, in whole or in part, of any debt or other liability."

6. We have to ascertain the meaning of the words "said amount of money" occurring in clause (b) and (c) to the proviso to S.138. Reading the Section as a whole we have no hesitation to hold that the above expression refers to the words "payment of any amount of money" occurring in main S.138 i.e., the cheque amount. So in notice, under clause (b)