TMI Blog2021 (11) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque No. 794335 dated 17.10.2004 amounting to ₹ 5,000/- was mentioned in the notice and so far as other cheque bearing No. 0689316 dated 05.11.2004 is concerned, it was simply stated that the same had bounced, but no further details of that cheque was given in the notice. Upon perusal of the entire notice, this Court finds that no demand was ever made by the petitioner asking the opposite party no. 2 to pay the cheque amount/amounts and accordingly, the learned appellate court has rightly held that the notice issued in the present case was not in conformity with the provision of Section 138 of the Negotiable Instruments Act. The law is well-settled that the complaint under Section 138 of the Negotiable Instruments Act is not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned trial court had convicted the accused (opposite party No.-2 herein) for offence under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment of six months and also to pay a fine of ₹ 1,84,370/-, which was equivalent to the cheque amount and in default of payment of fine, the opposite party No.-2 was further directed to undergo simple imprisonment for one month. Arguments on behalf of the petitioner 6. Learned counsel appearing on behalf of the petitioner submits that the impugned judgment passed by the learned appellate court, is perverse and is fit to be set-aside. He submits that the judgment passed by the learned trial court is a well-reasoned judgment and the learned appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 380 to submit that the notice is to be read as a whole and it is submitted that upon correct reading of the notice, the basic requirement of notice under section 138 of the Negotiable Instruments Act is fulfilled . Arguments on behalf of opposite party No.-2 8. Learned counsel appearing on behalf of opposite party No.-2, on the other hand, has opposed the prayer and submitted that upon perusal of the entire notice, no demand for payment of the cheque amount was ever made by the petitioner in the notice, rather in the notice, the petitioner had asked the opposite party No.-2 just to meet the petitioner within a period of ten days. He further submits that the notice refers to one cheque bearing Cheque No. 794335 amounting to ₹ 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord recorded its finding at Para-9 of the trial court's judgment, which is quoted as under: - From the discussions made above, it becomes clear that the accused had issued the cheque in discharge of his debt or liability. It further appears that the cheque was dated 05.11.2004 and the same was presented in Bank on same date. The cheque got dishonoured on 16.11.2004 and information regarding dishonor of cheque due to insufficiency of fund has been received by the complainant on 02.12.2004. Upon coming to know about the dishonour of the cheque the complainant got a demand notice served through his lawyer on 04.12.2004. Though the notice had been sent to the correct address the accused did not receive the same and neither paid the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice itself is defective and hence the complaint was not maintainable. The learned appellate court held that the case under section 138 of the Negotiable Instruments Act is not made out on the basis of omnibus notice without specifying as to what was the amount due under the dishonored cheque and without specifying in the notice that the payment of the said amount should be made within 15 days after receipt of the notice. These two facts were found missing in the notice Ext. 7 and hence Ext. 7 was not according to proviso (b) of Section 138 of the Negotiable Instruments Act and accordingly, set-aside the judgment passed by the learned trial court and allowed the appeal. 12. This Court finds that the bone of contention between the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment passed by the Hon'ble Supreme Court reported in (2000) 2 SCC 380 (Suman Sethi vs. Ajay K. Churiwal and Another), it was held that it is a well-settled principle of law that the notice has to be read as a whole and in the notice, demand has to be made for the said amount i.e. the cheque amount and if no such demand is made, the notice no doubt would fall short of the legal requirement. The question which was to be examined in the said case was where in addition to the said amount , there is also a claim by way of interest, cost etc., whether the notice is bad. The Hon'ble Supreme Court held that this will depend on the language of the notice and if the notice gives break up of the claim the cheque amount, interest, damages ..... X X X X Extracts X X X X X X X X Extracts X X X X
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