TaxTMI 
TaxTMI 
TaxTMI 
2021 (11) TMI 160
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions Judge, Fast Track Court No.-1, Dhanbad in Criminal Appeal No. 170/08, whereby the learned appellate court has been pleased to set-aside the order of sentence and judgement of conviction dated 12.06.2008 passed in Complaint Petition No. 2086/04 by the learned Judicial Magistrate, 1st Class, Dhanbad. 5. The learned trial court had convicted the accused (opposite party No.-2 herein) for offence under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment of six months and also to pay a fine of Rs. 1,84,370/-, which was equivalent to the cheque amount and in default of payment of fine, the opposite party No.-2 was further directed to undergo simple imprisonment for one month. Arguments on behalf of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....'ble Supreme Court reported in 2008 (1) Eastern Criminal Cases 6 (SC) (M/s. Rahul Builders vs. Arihant Fertilizers & Chemicals and Others) and has referred to paragraph-11 of the said judgment, which in turn refers to another judgment passed by the Hon'ble Supreme Court reported in (2000) 2 SCC 380 to submit that the notice is to be read as a whole and it is submitted that upon correct reading of the notice, the basic requirement of notice under section 138 of the Negotiable Instruments Act is fulfilled . Arguments on behalf of opposite party No.-2 8. Learned counsel appearing on behalf of opposite party No.-2, on the other hand, has opposed the prayer and submitted that upon perusal of the entire notice, no demand for payment of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 5,000/-, which were marked as Ext.-1 and 3 respectively. After bouncing of the cheque, legal notice dated 04.12.2004 was issued which has been marked as exhibit-7 and thereafter the complaint case was filed. The learned trial court after considering the materials on record recorded its finding at Para-9 of the trial court's judgment, which is quoted as under: - "From the discussions made above, it becomes clear that the accused had issued the cheque in discharge of his debt or liability. It further appears that the cheque was dated 05.11.2004 and the same was presented in Bank on same date. The cheque got dishonoured on 16.11.2004 and information regarding dishonor of cheque due to insufficiency of fund has been received by the comp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Ext. 7, it is clear that the notice does not disclose regarding the payment of the cheque amount within the period of 15 days after receipt of the notice and accordingly, the said notice is not according to Proviso (b) of Section 138 of the N.I. Act and the notice itself is defective and hence the complaint was not maintainable. The learned appellate court held that the case under section 138 of the Negotiable Instruments Act is not made out on the basis of omnibus notice without specifying as to what was the amount due under the dishonored cheque and without specifying in the notice that the payment of the said amount should be made within 15 days after receipt of the notice. These two facts were found missing in the notice Ext. 7 and henc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2 to pay the cheque amount/amounts and accordingly, the learned appellate court has rightly held that the notice issued in the present case was not in conformity with the provision of Section 138 of the Negotiable Instruments Act. 14. In the judgment passed by the Hon'ble Supreme Court reported in (2000) 2 SCC 380 (Suman Sethi vs. Ajay K. Churiwal and Another), it was held that it is a well-settled principle of law that the notice has to be read as a whole and in the notice, demand has to be made for the "said amount" i.e. the cheque amount and if no such demand is made, the notice no doubt would fall short of the legal requirement. The question which was to be examined in the said case was where in addition to the "said amount", ther....