Criminal Writ Petition No.669 of 2004

19th September, 2005

Petitioner Counsel: Shri. S. V. PUROHIT
Respondent Counsel: Shri. R. M. PATWARDHAN

Cases Cited:
Andhra Engineering Corporation Vs. M/s. T.C.I. Finance Ltd., Secunderabad, 1999 ALL MR (Cri) JOURNAL 51=1999(3) Crimes 504 [Para 5]
Gopal Debi Ozha Vs. Sujit Paul, 1997(1) Crimes 127 (Calcutta) [Para 6]
Suman Sethi Vs. Ajay K. Churiwal, 2000 ALL MR (Cri) 645 (S.C.)=2002(2) Mh.L.J. 301 (SC) [Para 6]
K. R. Indira Vs. Dr. G. Adinarayana, 2003 ALL MR (Cri) 2706 (S.C.)=2003(4) Mh.L.J. 1081 (SC) [Para 6]

JUDGMENT

JUDGMENT :- By this petition under Article 227 of the Constitution of India read with section 482 of Criminal Procedure the petitioner/original complainant seeks to quash the judgment dated 31-03-2004 passed by 2nd Additional Sessions Judge, Nagpur in Criminal Revision No.1047/1999 quashing the order of issuance of process dated 19-06-1999 by Judicial Magistrate, First Class, Narkhed in Criminal Complaint Case No.100/1999 and dismissing the complaint.

2. According to the petitioner he is the Director of Omkar Polymer Private Ltd., Narkhed and is engaged in the business of manufacturing Chetak Rigid PVC Pipe. Respondent No.2 is the proprietor of respondent no.1 dealing in PVC pipe and is the customer of the petitioner. In pursuance to the order placed by the respondents the petitioner supplied PVC pipes. In order to discharge the liability on account of credit purchase made by the respondents they issued cheque for Rs.3,64,764/- on 28-03-1999 drawn on Bombay Mercantile Co-operative Bank Ltd., Solapur. Thereafter the respondents made payment of Rs.1,50,000/- by demand draft towards part payment of the amount of the said cheque. However the respondents failed to pay the remaining amount of the said cheque. On 10-04-1999 the petitioner presented the cheque to State Bank of India, Branch Narkhed. The same was dishonoured by intimation dated 28-04-1999.

3. On 11-05-1999 the petitioner issued a notice of demand to the respondents bringing out all the details of the transactions and part payment made by the respondents to the petitioner. The respondents did not make payment in spite of demand notice having been served on them. Hence on 19-06-1999 the petitioner filed Criminal Complaint Case No.100/1999 against the respondents before the Judicial Magistrate, First Class, Narkhed. On the same day the learned Magistrate issued process against the respondents u/s. 138 of the Negotiable Instruments Act and u/s. 420 of the Indian Penal Code. In fact, Section 138 is of Negotiable Instruments Act which is not mentioned in the impugned order. The issuance of process was challenged by the respondents by Criminal Revision No.1047/1999. By order dated 31-03-2004 the 2nd Additional Sessions Judge, Nagpur allowed the revision, set aside the order of issuance of process and dismissed the complaint. The said order has been challenged by the petitioner.

4. I have heard Shri. S. V. Purohit, Advocate for the petitioner and Shri. R. M. Patwardhan, Advocate for the Respondents.

5. Shri. Purohit submitted that the cheque passed by the respondents was for Rs.3,64,764/-. After issuance of the cheque the respondents made part payment of Rs.1,50,000/-. However the respondents failed to pay the remaining amount of Rs.2,14,764/-. Hence the petitioner presented the cheque. When it was dishonoured, the petitioner issued notice of demand pointing out all the details of the liability of the respondents and part payment made by them. By the said notice the petitioner claimed Rs.2,14,764/- only. Thus there was no vagueness in the notice. The notice was perfectly legal. The revisional court was not justified in quashing the order of issuance of process on the ground that the demand notice was invalid. In support of his submission Shri. Purohit relied on Andhra Engineering Corporation Vs. M/s. T.C.I. Finance Ltd. Secunderabad and another, 1999(3) Crimes 504 : [1999 ALL MR (Cri) JOURNAL 51].

6. Shri. Patwardhan, on the other hand, submitted that under section 138 of the Negotiable Instruments Act, it is necessary that the demand must be for the amount of cheque. No demand can be made for more amount than what has been mentioned in the cheque nor for less amount than the one mentioned in the cheque. Shri. Patwardhan submitted that a notice of demand for any amount other than the cheque amount is invalid. He submitted that Section 138 of the Negotiable Instruments Act is penal provision and it has to be construed strictly. He further submitted that it is not permissible for the Court to hold that the demand for any other amount than what has been mentioned in the cheque is legal. No criminal action can be initiated on the basis of such a demand. In support of his submission Shri. Patwardhan relied on the following cases:

(1) Gopal Debi Ozha Vs. Sujit Paul, 1997(1) Crimes 127 (Calcutta).

(2) Suman Sethi Vs. Ajay K. Churiwal and another, 2002(2) Mh.L.J. 301 (SC) : [2000 ALL MR (Cri) 645 (S.C.)].

(3) K. R. Indira Vs. Dr. G. Adinarayana, 2003(4) Mh.L.J. 1081 (SC) : [2003 ALL MR (Cri) 2706 (S.C.)].

7. All these cases referred to the demand for more amount than what was mentioned in the cheque. While holding that the demand notice must be for the amount of cheque and the demand should not be either for more amount or for lesser amount, the courts held that what is necessary is a specific demand. The court went to the extent of observing that even the demand notice in addition to the statutorily envisaged demand may not invalidate the notice. The court quashed the proceedings only when it was found that the notice in question is imperfect. Thus from the above cases no ratio to the effect that a demand for more or less amount than the amount of cheque is invalid can be deduced.

8. If we peruse the notice of demand dated 11-05-1999 in the present case it would be seen that the petitioner has given all the particulars of the liability of the respondents, the amount of cheque issued by the respondents, the part payment made by the respondents and the amount which remained to be paid by them. Thus there is no ambiguity in the notice of demand in the present case. If the submission of Shri. Patwardhan is to be accepted then it will have to be held that despite part payment made by the respondents, the petitioner was obliged to make demand of the entire amount of cheque which would obviously be improper and impermissible.

9. In this view of the matter I find that the impugned judgment is bad in law and it cannot be sustained. I, therefore, pass the following order:

(i) The criminal writ petition is allowed.

(ii) The impugned order dated 31-03-2004 passed by 2nd Additional Sessions Judge, Nagpur in Criminal Revision No.1047/1999 is hereby quashed and set aside.

(iii) Criminal Complaint Case No.100/1999 is restored to the file of Judicial Magistrate, First Class, Narkhed who shall proceed with the complaint in accordance with law.

Petition allowed.