A statutory notice under Section 138 must specify the cheque amount correctly; ambiguity renders the complaint invalid.

ORDER :

G. JAYACHANDRAN, J.

The petition is filed to quash the criminal complaint initiated under Section 138 of the Negotiable Instrument Act, subject matter of STC No.92 of 2024.

2. The short point canvassed before this Court to quash the complaint is that the statutory notice issued for informing return of cheque for insufficient funds carries an inherent defect which is not curable and render the complaint void.

3. The learned counsel appearing for the petitioner submits that the statutory notice issued by the complainant informing return of 10 cheques is only for a sum of Rs.14,43,500/-, whereas the statutory notice claims Rs.19,15,266/- within seven days from the date of receipt of the legal notice and this amount does not whisper whether it is the principal amount of the cheque and other or inclusive of any incidental expenses or charges. Therefore, the defective notice which cannot be cured renders the complaint not sustainable. In support of his Submission, the learned counsel appearing for the petitioner would rely upon the following judgments;

1. Sumen Sethi vs. Ajay K. Churiwal and Another , reported in (2000) 2 SCC 380

2. Rahul Builders v. Arihant Fertilizers &Chemicals and another, reported in (2008) 2 SCC 321

3. Vijay GopalaLohar vs. Pandurang Ramchandra Ghorpade and another , reported in (2020) 14 SCC 806 ;

4. K.R.Indira vs. Dr.G. Adinarayana , reported in (2003) 8 SCC 300 ; and

5. Mahdoom Bawa Bahrudeen Noorul v. Kaveri Plastics , in Crl MC. No.2164 of 2022

4. The counsel appearing for the complainant/respondent submits that no doubt the total amount claimed in the statutory notice is mentioned as Rs.19,15,266/-. However, the cheque amount has been specifically mentioned in the table at paragraph 2 of the statutory notice. That apart, the complaint which is taken cognizance by the Magistrate is only in respect of 10 cheques for a sum of Rs.14,32,500/- and the other incidental charges like Banker charge, Notice charge, Advocate fees, Court Fees and other expenses have been mentioned separately in the complaint for the purpose of fixing compensation.

5. The learned counsel appearing for the respondent would submit that the error whatsoever in the statutory notice has been rectified in the complaint and therefore, the complaint is sustainable. In this regard the Hon’ble Supreme Court as well as the other High Courts in India, had clarified that if there is any defect in the statutory notice insofar as the cheque number, amount and the date of cheque, the said defect is incurable and it will render the complaint under Section 138 of the Act, void in view of non-compliance of the requirement mentioned in proviso to Section 138 of the Negotiable Instrument Act.

6. In this case, though in the statutory notice at paragraph 2, the complainant has mentioned the details of 10 cheques issued by the accused and the amount of each cheque, while calling upon the accused to pay, instead of mentioning the principal amount of the cheque i.e. Rs.14,32,500/-, he has mentioned Rs.19,15,266/-. It is not explained by giving the breakup of principal and other incidental expenses. Contrary to this statutory notice, the complaint is filed for Rs.14,32,500/- towards principal and an additional Rs.57,000/- towards other incidental charges. The claim made in the statutory notice does not synchronize with the complaint.

7. This, according to the Hon’ble Supreme Court, is an incurable inherent defect and the complaint under Section 138 of the Negotiable Instrument Act, cannot be sustained based on the said defective notice. It is profitable to refer to the judgments of Hon’ble Supreme Court in Sumen Sethi vs. Ajay K. Churiwal and Another , rep