Final Order 4

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 114CC NI ACT/432/2024 DLCT020353132023
Amit Kumar Singh Vs. Rajiv
20.08.2024
At 02:30 pm
Present : None.
Be awaited till 3 pm.
(Rupinder Singh Dhiman)
JMIC, NI Act-06, Central District, THC/20.08.2024
At 3 pm
Present : None.
Matter is fixed for order on summoning.
Briefly stated that present case has been filed by the complainant
qua dishonour of cheque bearing no. 573462 dt. 10.10.2023 in the sum of Rs.
22,000/- and cheque bearing no 573461 dt. 11.10.2023 in the sum of Rs.
20,000/-. It is case of the complainant that the accused borrowed Rs. 2,95,000/-
from the complainant on 25.05.2021 and in part discharge of the said liability,
issued aforesaid two cheques. However, the said cheques were dishonoured on
presentation. Despite service of legal notice dt. 09.11.2023, payment was not
made by the accused. Hence, the present complaint.
Submissions qua summoning of accused, were heard on behalf of
complainant. Liberty was also given to the complainant to file any judgment in
support of his arguments. However, no judgment has been filed.
The crux of the issue in the present matter is that demand of Rs.
3,30,400/- has been made in the legal notice whereas the amount of
dishonoured cheques is only Rs. 42,000/-. The notice of demand U/S 138 is a
statutory notice. The section requires it to be in writing and it has to be issued
within thirty days of the receipt of information from the bank about the dishonour
of cheque by the payee. The section though requires a notice to give raise cause
of action, it seldom mentions any form, nor does it mention the basic
requirements of a valid notice. Therefore, great precaution has to be taken while
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affecting such a statutory notice. (AIR 2003 SC 4689 –K. R. Indira vs. Dr. G.
Adinarayana relied on).
Hence, I deem it appropriate to reproduce the relevant portion of the
legal notice which reads as under:
“...5.That my client was shocked to see that the cheque given by you
the addresseee got bounced and details are as follows:
I. Cheque no. 573462 dated 10/10/2023 reason was “FUNDS
INSUFFICIENT” vide Cheque returning memo dated 11/10/2023.
ii. Cheque no. 573461 dated 11/10/2023 reason was “FUNDS
INSUFFICIENT” vide Cheque returning memo dated 10/10/2023.
So you the addressee is liable to pay my client Rs. 3,30,400/--
inclusive of interest @ 18% p.a. within fifteen days of the receipt of this
notice, failing which I have clear instructions from my client to file civil suit
for the recovery of aforesaid amount. In that eventuality you will also be
liable to the cost of litigation and other incidental expenses resulting there
from.”
It is trite to state that in the legal notice, demand has to be made for
the cheque amount, otherwise notice is bad. It is also no longer res integra that in
the notice, demand for incidental charges/ notice charges can be separately
mentioned in addition to the demand for cheque amount, however, demand
for the cheque amount must be clearly stated. Therefore, if an omnibus
demand is made in the notice without separately specifying the cheque
amount, the legal notice is defective (Suman Sethi Vs. Ajay K. Churiwal and
Anr. (2000) 2 SCC 380 relied upon). In the present matter, bare perusal of the
legal notice shows that an omnibus demand of Rs. 3,30,400/- has been made in
the legal notice. Further, the said amount also is not the outstanding liability
rather inclusive interest @ 18 per cent. However, perusal of the agreement dt.
03.07.2021 filed by the complainant shows that there is no term qua interest of 18
per cent agreed upon between the parties. Hence, the omnibus demand of Rs.
3,30,400/- renders the legal notice defective as the cheque amount is not
separately mentioned in the demand raised by complainant.
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Accordingly, one of the essential ingredients of offence u/s 138 NI
Act is missing. Therefore, cognizance stands declined. Complaint stands
dismissed.
File be consigned to Record Room after necessary compliance.
(Rupinder Singh Dhiman)
JMIC, NI Act-06, Central District, THC/20.08.2024
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