TMI Blog2007 (11) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... Sanjeev Sachdeva and Chetan Chopra for the Respondent. JUDGMENT S.B. Sinha, J. - Failure on the part of the appellant to serve a proper notice strictly in terms of proviso appended to section 138 of the Negotiable Instruments Act (for short "the Act") whether would lead to quashing of a criminal proceedings initiated by II Additional Sessions Judge, Neemuch on a complaint made by the appellant herein is the question involved in this appeal which arises out of a judgment and order dated 22-11-2004 passed by the High Court of Madhya Pradesh in Misc. Criminal Case No. 2924 of 2004. 2. Appellant is a partnership firm. Respondent No. 1 entered into a contract with it for construction of a building and factory premises. Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The High Court, however, by reason of its impugned order, in exercise of its jurisdiction under section 482 of the Code of Criminal Procedure (Code), has quashed the criminal proceedings pending against it holding: ( i )15 days notice having not been, served upon Respondent No. 1, the same was not valid in law. ( ii )The complainant by reason of the said notice having demanded a sum of Rs. 8,72,409 as against the cheque which was for a sum of Rs. 1,00,000 only, the notice was vague and did not serve the statutory requirements of Provisos ( b ) and ( c ) of section 138 of the Act. 5. Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the appellant submitted that the High Court committed a serious error in passing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ** ** ( 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 fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and ( c )the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice." 8. Section 138 does not speak of a 15 days notice. It contemplates service of notice and payment of the amount of cheque within 15 days from the date of receipt thereof. When the statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of the said amount of money". Such a notice has to be issued within a period of 30 days from the date of receipt of information from the bank in regard to the return of the cheque as unpaid. The statute envisages application of the penal provisions. A penal provi-sion should be construed strictly; the condition precedent wherefor is service of notice. It is one thing to say that the demand may not only represent the unpaid amount under cheque but also other incidental expenses like costs and interests, but the same would not mean that the notice would be vague and capable of two interpretations. An omnibus notice without specifying as to what was the amount due under the dishonoured cheque would not subserve the requirement of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal requirement and may be regarded as bad . 9. This Court had occasion to deal with section 138 of the Act in Central Bank of India v. Saxons Farms 3 and held that the object of the notice is to give a chance to the drawer of the cheque to rectify his omission. Though in the notice demand for compensation, interest, cost etc. is also made the drawer will be absolved from his liability under section 138 if he makes the payment of the amount covered by the cheque of which he was aware within 15 days from the date of receipt of the notice or before the complaint is filed." (p. 384) [Emphasis supplied] As therein, some other sums were indicated in addition to the amount of cheque, it was, therefore, not held to be a case where the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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