TaxTMI 
TaxTMI 
2021 (8) TMI 438
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....bsp; Total Rs. 30,57,883/- ii) Towards payment for such purchase, the respondent- Company issued following cheques to the appellant. S.No. Date Cheque No. Bank Amount 1 12.11.2012 746948 SBI Maniyakaram Palayam Branch, Coimbatore Rs. 4,91,240/- 2 19.11.2012 746949 -do- Rs. 5,36,065/- 3 25.11.2012 746988 -do- Rs. 5,45,880/- 4 15.12.2012 746999 -do- Rs. 3,90,238/- 5 26.12.2012 991956 -do- Rs. 5,00,000/- 6 29.12.2012 991957 -do- Rs. 5,94,460/- Total Rs. 30,57,883/- iii) When the appellant presented the cheque referred in Serial No. 1, for encashment, the same was dishonoured on account of "insufficient funds". Therefore, he informed the same to the respondent-Company and they paid entire cheque amount referred in Serial No. 1 in three installments. As far as the cheques referred in Serial Nos. 2 and 4 are concerned, those cheques were also dishonoured and when the same was brought to the notice of the respondent-Company, they settled only a sum of Rs. 3,50,000/-, towards the cheque referred in Serial No. 4, ....
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....sent Criminal Appeal. 3. Mr. G. Saravanan, the learned Counsel appearing for the appellant would submit that the Court below has wrongly construed that the legal notice was issued demanding a sum of Rs. 22,16,643/- along with interest at the rate of 24%, whereas, in the complaint, the appellant had claimed to clear the cheque amount alone. Further, he submitted that at page No. 4 of the legal notice, in the first paragraph, the amount claimed by the appellant was clearly mentioned as follows:- "My client states that in so far as the dishonour of cheques mentioned in items 3, 5 and 6 is concerned, your conduct in having issued the cheques towards a subsisting liability and allowed the same to be dishonoured is an offence under Section 138 of the Negotiable Instruments Act for which you are liable to be prosecuted and imprisoned." 3.1. By referring to the above said paragraph, the learned counsel submitted that the demand was made in connection with cheques referred in Serial Nos. 3, 5 and 6 alone. Further, in paragraph No. 2 of the legal notice also, the appellant clearly mentioned the serials numbers in respect of the dishonoured cheques, viz., Serial Nos. 3, 5 and 6....
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....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 within thirty days of the receipt of information by him from the bank regarding the return of t....
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....e of receipt of this notice failing compliance take notice that my client will be constrained to initiate appropriate criminal prosecution besides Civil proceedings against you holding you liable for all costs and consequences thereof." 7.3. A perusal of the above extracted paragraphs of the legal notice shows that the appellant called upon the respondent-Company to make payment towards the dishonour of the cheques referred in Serial Nos. 3, 5 and 6, failing which, the respondent-Company will be prosecuted under Section 138 of the N.I. Act. Further, the appellant, in the penultimate para at Page 4, called upon the respondent - Company to pay the amount covered by the cheques along with Rs. 1000/- within 15 days from the date of receipt of the legal notice. Thus, it is clear that, in the last para, at page No. 3 of the said legal notice, the appellant made a claim for a sum of Rs. 22,16,643/-, whereas, in the last para, at page No. 4, the appellant has purposely not mentioned the serial numbers in respect of the dishonoured cheques, but had mentioned only about the amount covered in respect of the cheques. Therefore, the demand made by the appellant would be considered as omnibus....
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.... covered in respect of the dishonoured cheques, which would clearly show that the appellant has demanded the amount not only in respect of the cheques referred in Serial Nos. 3, 5 and 6, which were dishonoured, but also the amount in respect of the cheques, which were time barred, viz., cheques referred in serial Nos. 2 and 4 and taking into consideration of all these aspects, the Court below rightly refused to entertain the claim of the appellant by holding that the legal notice does not satisfy the legal requirement of Section 138(b) of the N.I. Act. In this context, the one other judgment relied upon by the learned counsel for respondents would be of useful to refer, viz., the judgment rendered by the Hon'ble Apex Court in the case of K.R. Indira vs. Dr. G. Adinarayana (cited supra), wherein, it is held as follows: "What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case. The notice in question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount, the non-comp....