TaxTMI 
TaxTMI 
2017 (4) TMI 1664
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....Rs.4,30,000/- was given by the respondent no.1 to the applicant which stood bounced on the ground that the holder of the account has intimated the bank to stop payment as the said cheque has been stolen. Statutory notice was issued and since the payment was not made, therefore, the complaint under Section 138 of Negotiable Instruments Act was filed. 3. It is submitted by the counsel for the applicant that an objection was raised before the Magistrate contending inter alia that in the statutory notice, issued by the complainant/respondent no.1, it was alleged that the applicant had taken a loan of Rs.43,000/- and a cheque of Rs.43,000/- was given in lieu of repayment of loan amount which was presented before the bank and it has stood bounced whereas in the complaint it is alleged that the applicant had taken a loan of Rs.4,30,000/- and a cheque for an amount of Rs.4,30,000/- was given which stood bounced. It was submitted that as the notice under Section 138 of Negotiable Instruments Act was not issued for the amount of the cheque, therefore, the complaint, as filed by the respondent no.1, is not maintainable. 4. In reply to the said objection, it was contended by the counsel ....
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....ical error with regard to the amount mentioned in the notice or not, cannot be considered at this stage and it has to be ascertained only after the recording of the evidence. 9. Heard the learned counsel for the parties. 10. The centripetal question for adjudication in the present applicant in short is that whether the statutory notice issued under Section 138(b) of Negotiable Instruments Act was issued for the "said amount of money" or not. 11. Section 138 of Negotiable Instruments Act reads as under:- "138. Dishonour of cheque for insufficiency, etc., of funds in the account. -Where any cheque drawn by a person on an account 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 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 provisions of t....
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....return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice; 11. If the aforementioned ingredients are satisfied then the person who has drawn the cheque shall be deemed to have committed an offence. In the explanation to the section clarification is made that the phrase "debt or other liability" means a legally enforceable debt or other liability." 13. Thus, it is clear that in order to constitute a cause of action, it is necessary for the holder, in due course of the cheque, must make a demand for the payment of the "said amount of money" by giving a notice in writing to the drawer of the cheque. 14. "Said amount of money" has been considered by the Supreme Court in the case of Suman Sethi v. Ajay K.Churiwal & Anr. reported in (2000) 2 SCC 380 which reads as under:- "7. There is no ambiguity or doubt in the language of Section 138. Reading the entire Section as a whole and applying commonsense, from the words, as stated above, it is clear that the legislature intended that in notice under claus....
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.... the payment of the amount covered by the cheque of which he was the drawer within 15 days from the date of receipt of notice or before the complaint is filed. 9. In Suman Sethi v. Ajay K. Churiwal and Another, [2000] 2 SCC 380 it was held that the legislative intent as evident from Section 138 of the Act is that if for the dishonoured cheque demand is not met within 15 days of the receipt of the notice the drawer is liable for conviction. If the cheque amount is paid within the above period or before the complaint is filed the legal liability under Section 138 ceases to be operative and for the recovery of other demands such as compensation, costs, interests etc. separate proceedings would lie. If in a notice any other sum is indicated in addition to the amount covered by the cheque, that does not invalidate the notice. 10. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence : (1) drawing the cheque by a person on account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any de....
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....e. Significantly, not only the cheque amounts were different from the alleged loan amounts but the demand was made not of the cheque amounts but only the loan amount as though it is a demand for the loan amount and not the demand for payment of the cheque amount; nor could it be said that it was a demand for payment of the cheque amount and in addition thereto made further demands as well. What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuoulsy 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-compliance with such a demand only being the incriminating circumstance which expose the drawer for being proceeded against under Section 138 of the Act. That being the position, the ultimate conclusion arrived at by the trial Court and the High Court do not call for interference in these appeals, though for different reasons indicated by us. The appeals are, accordingly dismissed." 17. In the present case, the relevant portions of the notice issue....
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....#2340;ीत होने के उपरान्त भी मेरे पक्षकार को रूपया अदा न करने पर मेरे पक्षकार के द्वारा आपसे रूपयों की मॉग की जाने पर आपके द्वारा आपके बैंक खाते का चेक क्रमांक -893576 दिनांक 26.07.2010 स्टेट बैंक आफ इन्दौर शाखा कुम्भराज 43000/- रू0 का ì....
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....2375;गा जिसमें होने वाले समस्त व्यय को जबाब दारी आपकी होगी तथा इस सूचना पत्र का व्यय 500/- रुपया भी आपसे वसूल किया जायेगा।" 18. Thus, in the notice, it was the specific case of the complainant/respondent no.1 that the applicant had taken a loan of Rs.43,000/- and in lieu of repayment of the said loan, a cheque for an amount of Rs.43,000/- was issued. 19. Merely by saying that the amount so mentioned in the statutory notice was incorrect because of typographical error, in the considered opinion of this Court, the complainant cannot get rid of the notice issued by him under Section 138(b) of Negotiable Instruments Act. The provisions of Section 138 of Ne....