Point of Law: Proviso (b) to Section 138 of Negotiable Instruments Act, reads as payee in due course of cheque, makes a demand for payment of amount of money by giving a notice in writing, to drawer of cheque [within thirty days].

JUDGMENT :

AJAY MOHAN GOEL, J.

1. By way of this appeal, the appellant has challenged the judgment passed by the Court of learned Sub-Divisional Judicial Magistrate, Chachiot at Gohar, District Mandi, H.P. in case bearing Complaint No. 2081/2005, titled as Dolma Devi vs. Roshan Lal, in terms whereof, a complaint filed under Section 138 of the Negotiable Instruments Act by the present appellant was dismissed by the learned Court below.

2. Brief facts necessary for the adjudication of the present appeal are that the appellant/complainant (hereinafter to be referred as the ‘complainant’) filed a complaint filed against the respondent under Section 138 of the Negotiable Instruments Act, on the ground that she had filed objections before the Land Acquisition Officer, Bilaspur against an award which was made in favour of the accused. During said proceedings, the parties arrived at a compromise and in terms of the compromise, a cheque for an amount of Rs. 3,00,000/- was issued by the accused to the complainant, i.e. cheque No. 0012360, drawn upon H.P. State Cooperative Bank, Branch Beri, at Bilaspur, H.P. The cheque was submitted by the complainant in Punjab National Bank, Jachh where she was having her account, on 07.03.2005, which was returned back on 24.03.2005 with remarks that the cheque was post dated. This was followed by issuance of notice as provided under Negotiable Instruments Act, but as even thereafter, the amount was not paid by the accused to the complainant, hence, the complaint.

3. The complaint has been rejected by learned Trial Court on two counts. The first count, on which the complaint has been rejected by the learned Trial Court is that the notice issued after the cheque was returned back as dishonoured, was no notice as contemplated under the provisions of Negotiable Instruments Act, as no demand of money was made therein. The second count, on which the complaint has been dismissed by learned Court below is that the cheque in issue was presented before the drawee bank after the due date, i.e. six months as from the date the cheque was issued.

4. Feeling aggrieved, the appellant has filed the present appeal.

5. Learned counsel for the appellant has argued that while dismissing the appeal, a hyper technical view has been taken by the learned Trial Court as it erred in not appreciating that in the notice which was issued by the appellant after dishonouring of the cheque, all the ingredients of the provisions of the Negotiable Instruments Act were complied with and simply because one line was not written therein qua demand of money this does not means that the same did not amount to statutory compliance of the provisions of the Negotiable Instruments Act. He has further submitted that the notice that was issued was not a general notice but it was in terms of the Negotiable Instruments Act and issued after the cheque in issue stood dishonoured, but this extremely important aspect of the matter has been ignored by learned Trial Court, which adopted a hyper technical view in the matter. Learned counsel further submitted that as the cheque was issued on 14.09.2004 and the same was presented by the appellant with her bank within six months as from the date its issuance, therefore, the appellant had done whatever she was supposed to do and if her bank presented the cheque to the payee bank after the period of six months as from the date of issuance of the cheque, then she could not have been made to suffer for this lapse, if any, on behalf of her bank. Accordingly, he submitted that the present appeal be allowed and the judgment passed by learned Court below be set aside.

6. The appeal has been opposed by learned counsel for the respondent, inter-alia, on the ground that there is no infirmity in the judgment passed by learned Trial Court, because the law as stands settled by Hon’ble Supreme Court of India is very-very clear that until and unless, the notice envisaged under the provisions of Negotiable Instruments Act is inconso