TMI Blog2020 (8) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... rdered to be paid is stated differently in figures and in words. Therefore, as per the provisions of section 18 NI Act, merely because the amount to be paid as stated in figures and words is different, a cheque or an instrument does not become invalid and the amount stated in words shall be considered to be amount undertaken or ordered to be paid - In the usual course of things, if a cheque has ambiguity with regard to the amount, it can be settled by falling back upon the amount written in words and that amount shall be considered to be the amount undertaken or ordered to be paid through that instrument or cheque. The effect of section 18 NI Act is that in case of amount is stated differently in words and figures, the amount stated in figures would be immaterial and it is only the amount stated in words that has to be considered. In the present case, there is an uncertainty with regard to the amount which has been ordered to be paid through the instrument in question. However, in view of section 18 of NI Act, it can still be a valid instrument if, on the basis of the amount written in words, a certainty can be arrived at with regard to the amount ordered to be paid. Surprisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered. The material presented before the trial court was sufficient to conclude that as the instrument on the basis of which complaint was filed was not a valid cheque within the definition of section 6 of NI Act, no notice u/s 251 Cr.P.C could have been framed against the accused/ revisionists - the application of the revisionists/ accused seeking discharge was dismissed and notice for the offence u/s 138 NI Act was ordered to be framed, cannot be sustained. Impugned order is set aside - The revisionists stand discharged. - Cr. Revision No. 742/2019 - - - Dated:- 24-7-2020 - SH. PARVEEN SINGH, ADDL. SESSIONS JUDGE 03 (NEW DELHI) PATIALA HOUSE COURTS : NEW DELHI JUDGMENT The present revision u/s 397/399/401 Cr.P.C has been filed for setting aside order dated 06.06.2019 passed by Ld. MM (NI Act)-03 whereby the ld MM had dismissed the application for discharge of accused/ revisionists under section 138 Negotiable Instruments Act (NI Act). 2. As per the complaint u/s 138 NI Act, the brief facts are that, the accused/revisionists were the dealers of the complainant/ respondent no. It was further alleged that in order to discharge their liability, the revisionis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Exchange. Ld. trial court failed to appreciate section 18 of the NI Act which defines the circumstances where amount is stated differently in figures and words. As per section 18 of NI Act, if the amount undertaken or ordered to be paid is stated differently in figures and in words, the amount stated in words shall be the amount undertaken or ordered to be paid. Ld. trial court was wrong in concluding that the cheque in question failed to clear the test as defined u/s 18 of NI Act. The trial court was wrong in coming to conclusion that there is prima facie evidence available on record against the revisionist to frame notice u/s 138 NI Act. The impugned order suffers from patent illegality and non application of mind. 7. I have heard the arguments advanced by Sh. Sanjay Bhargav, ld. counsel for the revisionists and Sh. M.P Upadhyay, Ld. counsel for respondent no. 2. 8. Ld. Counsel for the revisionists has contended that the prosecution u/s 138 NI Act can only be launched and continued on dishonour of a cheque. For an instrument to be a cheque, it has first to satisfy the conditions of being valid under Negotiable Instruments Act (NI Act). He has further contended that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther contended that a valid legal notice was served upon the revisionists/ accused and despite that, the revisionists/ accused neither paid the amount, nor offered to issue a fresh cheque after making rectification and recording the correct amount in words and therefore, the judgment of Hon ble Supreme Court in Laxmi Dyechem (supra) squarely covers this case and there is no illegality or infirmity in the order of the learned trial court. 10. I have considered the rival submissions and perused the record very carefully. 11. In the present case, a very peculiar situation has arisen where the very factum of the instrument being a valid cheque has been challenged. 12. In order to decide the controversy at hand, it is first necessary to go through the relevant provisions of the NI Act in order to find out what is a cheque as per the NI Act. Section 6 of the NI Act defines cheque as under:- Cheque . -A cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. Explanation I .. (a) . (b) . Explanation II. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid cheque. 17. The scanned image of the cheque in question and dishonoured memo are underneath. 18. A look at the aforesaid cheque reflects that this an instrument in writing and therefore satisfies the condition no. 1 as above. It is an unconditional order signed by the maker and thus, it satisfies the condition no. 2 as above. A direction has been given to a specified banker i.e Canara Bank, Kothrud Branch, Pune and thus it satisfies the condition no. 3 as above. However, when it comes the condition no. 4 i.e. direction should be to pay a certain sum of money, the instrument is ambiguous. As can be seen above, the amount written in figures is 44,18,896/- and the amount written in words is Forty four lacs eighteen lacs eight hundred and ninety six only . Coming to the condition no. 5, the document also satisfies the condition no. 5 as above because it has been directed to be paid to Bridgestone India Pvt. Ltd i.e. a certain person. 19. As discussed above, there could have been no dispute about this instrument being a cheque within the definition of section 6 of the NI Act but for its failure to meet condition no. 4 i.e. the certainty of the amount to be paid. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Laws of England, Vol. 2 page 468, which is as under:- It is customary for bills and notes to have the amount written in figures at the top of the instrument in words in the body of the instrument. Where there is a discrepancy between the two the sum denoted by the words is the amount payable and evidence cannot be adduced to show that in fact there was a mistake made in omitting words in the body of the instrument. The figures at the top are not in fact a necessary part of an instrument, though they are commonly placed there. It would seem that their original purpose was that the amount of the instrument might strike the eye immediately and be a note, index, or summary of the contents. 25. Hon ble Madras High Court in Kishan Lal v. Jograj Bhantia, 1987 SCC Mad 141 had taken a similar view while relying upon the judgment of Hon ble Jammu Kashmir High Court in Jammu Kahsmir Bank (supra). 26. The Hon ble Kerala High Court in Capital Syndicate v. Jameela, 2001 (44) SCL 220 Ker had quoted with approval the following portion of Bhashyam and Adiga, on N.I. Act 4th Edition: It is obvious, therefore, that the first and essential requisite is certainty. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mir Bank (supra) wherein the Hon ble High Court had held that section 18 is mandatory in nature and it gives no choice to the courts to give preference to the sum mentioned in figures over the amount mentioned in words and that, no evidence can be adduced to show that in fact the sum mentioned in figures was to be paid and not the amount stated in words. Meaning thereby, once there is a difference between the amount stated in words and figures, in view of the provisions of section 18 of the NI Act, the amount stated in figures becomes immaterial and it is only the amount stated in words that has to be considered. 28. Applying this principle to the present case, I find that the amount stated in words is absurd and thus the certainty which is required by sections 5 6 of the NI Act with regard to the amount to be paid is missing in this instrument. That being the case, this instrument was not a valid cheque when presented before the bank. 29. The question which now arises is, if such an instrument was presented and dishonoured, would it amount an offence u/s 138 of the NI Act? 30. Section 138 of the NI Act reads as under:- 138 Dishonour of cheque for insufficiency, etc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same meaning as defined u/s 6 of the NI Act. Thus, the offence u/s 138 NI Act can only be said to have been committed if, the instrument that was presented and dishonoured was a cheque as defined by section 6 of the NI Act. 33. In the present case, as discussed above, the instrument which was presented to the bank was not a valid cheque for lack of certainty as to the amount that was ordered to be paid and the bank had also refused to honour this instrument only on the ground that cheque was irregularly drawn / amount in words and figures differed. 34. However, there has been a contention that has been raised on behalf of the respondent no. 2 that the present case is squarely covered by the judgment of Hon ble Supreme Court in Laxmi Dyechem (supra). He has contended that revisionists/accused had issued this cheque with malafide intention and giving a relief to the revisionists/ accused on the ground of certainty would defeat the object of the Act. He has further contended that despite the receipt of legal notice, the revisionists/ accused neither paid the amount nor offered to issue a fresh cheque and even did not reply the notice. Therefore, the judgment of Hon ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount written in words. It is not the case that the receiver could not have known the defect of the cheque when he received it or, where due to some future act on the part of the drawee that the cheque was dishonoured. Thus, the judgment of Laxmi Dyechem (supra) cannot come to the aid of the respondent in this case. 38. Coming on to the argument of ld. Counsel for the respondent no. 2 with regard to issuance of legal notice and non compliance of the same, I find that this argument also does not hold much water. I say so because, for a notice u/s 138 NI Act to fulfill the requirements of that section, the primary condition that has to be satisfied is that the dishonoured instrument was a valid negotiable instrument, which could be considered to be a cheque within the definition under section 6 of NI Act. 39. In the present case, as instrument presented was not a cheque with the definition of section 6 of NI Act, a notice for subsequent dishonour of such instrument will not impose any liability upon the drawee either for non compliance or for non issuance of a fresh cheque. 40. In view of my above discussion, I find that the material presented before the trial court was suf ..... 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