TMI Blog2010 (1) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... referring to the part- payment of ₹ 16,50,000/- which he had received by RTGS on 7.10.2008. The criminal complaint, subject matter of Crl.M.C.2224/2009 is liable to be quashed as the complainant presented the cheque for encashment of whole of its amount of ₹ 31,91,650/- though he had already received a sum of ₹ 10,50,000/- before presentation of the cheque and the principal amount due to him on the date of presentation of the cheque was only ₹ 21,41,650/-. - V.K. Jain, J. For the Appellant : M. John and Shivam Sharma, Advs. For the Respondents : H. Hariharan, Adv. JUDGMENT V.K. Jain, J. 1. This order will dispose of the above referred petitions. Petitioner No. 1 Alliance Infrastructure Project Private Ltd., issued a cheque dated 2nd May, 2008 for a sum of ₹ 30,86,000/- and another cheque of the same date for ₹ 12 lakhs in favour of the complainant/respondent. The cheques, when presented for encashment, were returned unpaid with the remarks signature different. When the complainant/respondent approached the petitioners in this regard, they issued three other cheques, one for ₹ 12 lakhs, second for ₹ 3,29,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presented to the bank much after the receipt of the aforesaid sum of ₹ 16,50,000/-, the cheque having been returned vide memo dated 22.12.2008. As is evident from the legal notice itself, the complainant required the petitioner to make payment of ₹ 49,47,600/-, though the amount due to him on that date, as per his own showing, was only ₹ 32,97,600/-. Thus, not only the complainant presented the cheque of ₹ 49,47,600/- for encashment but he also made a demand for the said amount despite the fact that the amount payable to him even on the date of presentation of the cheque was only ₹ 32,97,600/-. 4. As regards the cheque of ₹ 31,91,650/- which is the subject matter of Crl.M.C.2225/09, admittedly, after this cheque was returned, for the first time, vide memo dated 4.10.2008, the petitioner made a payment of ₹ 10,50,000/- to the complainant/respondent on 20th of October, 2008. The receipt of this payment has been acknowledged in para 7 of the legal notice dated 23.1.2009 sent by the complainant/respondent to the petitioner. After receipt of aforesaid payment of ₹ 10,50,000/-, admittedly, the complainant/respondent again presented the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it is drawn or within the period of its validity, whichever is earlier. (b) The payee or the holder induce 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 thirty days of the receipt of information by him from the bank regarding the return of the cheques 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. 7. The following are the components of the offence punishable under Section 138 of Negotiable Instrument Act: (1) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability, (2) presentation of the cheque by the payee or the holder in due course to the bank, (3) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noured for wants of funds, he will be guilty of offence punishable under Section 138 of Negotiable Instrument Act. 9. I am conscious of the implication that the drawer of a cheque may make payment of a part of the amount of the cheque only with a view to circumvent and get out of his liability under Section 138 of Negotiable Instrument Act. But, this can easily be avoided, by payee of the cheque, either by taking the cheque of the reduced amount from the drawer or by making an endorsement on the cheque acknowledging the part payment received by him and then presenting the cheque for encashment of only the balance amount due and payable to him. In fact, Section 56 of Negotiable Instrument Act specifically provides for an endorsement on a Negotiable Instrument, in case of part-payment and the instrument can thereafter be negotiated for the balance amount. It would, therefore, be open to the payee of the cheque to present the cheque for payment of only that much amount which is due to him after giving credit for the part-payment made after issuance of cheque. The view being taken by me was also taken by a Division Bench of Kerala High Court in Joseph Sartho v. Gopinathan Nair 2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused was not entitled to acquittal on account of difference between the amount of the cheque and the actual amount received by him from the creditor. In the present case, this is not the case of the complainant that on account of liability towards interest or some other liability, the petitioner was liable to pay the whole of the amount of the cheques on the date they were presented for encashment. Therefore, this judgment is of no help to the respondent/complainant. 12. In respect of the cheque, subject matter of Crl.M.C.2225/2009, the amount of the cheque was ₹ 31,91,650/- and the respondent, after giving credit for the amount of ₹ 10,50,000/- paid to him on 20.10.2008 demanded only a sum of ₹ 21,41,650/- vide notice dated 23.1.2009. Therefore, as far as the notice of demand issued in this case is concerned, it was legal and valid as the amount demanded was the actual amount payable by the petitioner to the respondent. But, in respect of the cheque, subject matter of Crl.M.C.2224/2009, the amount demanded in the notice of demand dated 19.12.2008 was ₹ 49,47,600/-, though admittedly the amount due to the respondent at that time was only ₹ 32,97 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manding the excess amount, such a notice cannot be said to be a legal and valid notice envisaged in Section 138(b) of Negotiable Instrument Act. In such a case, it is not open to the complainant to take the plea that the drawer of the cheque could have escaped liability by paying the actual amount due from him to the payee of the cheque. In order to make the notice legal and valid, it must necessarily specify the principal amount payable to the payee of the cheque and the principal amount demanded from the drawer of the cheque should not be more than the actual amount payable by him though addition of some other demands in the notice by itself would not render such a notice illegal or invalid. 13. In Central Bank of India and Anr. v. Saxons Farms and Ors. 1999 (8) SCC 221, the Hon'ble Supreme Court observed that the object of the notice under Section 138(b) of Negotiable Instrument Act is to give a chance to the drawer of the cheque to rectify his omission and also to protect the honest drawer. If the drawer of the cheque is asked to pay more than the principal amount due from him and that amount is demanded as the principal sum payable by him, it is not possible for an hone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, on presentation was dishonoured. A notice was thereafter sent by the appellant to respondent No. 1 informing him about dishonour of the cheque and asking him to remit the amount of ₹ 8,72,409/-. It was noted that the amount which respondent No. 1 was called upon to pay was the outstanding amount of the bills, i.e. ₹ 8,72,409/- and the notice was to respond that demand by offering the entire sum of ₹ 8,72,409/-. It was further noted that there was no demand to pay the sum of ₹ 1 lakh which was the amount of the cheque and what was demanded was the entire sum of ₹ 8,72,409/- and not a part of it. In these circumstances, it was held that there was no demand for payment of the cheque amount. The decision of the High Court holding that the notice was invalid, was upheld by the Hon'ble Supreme Court. 17. For the reasons given in the preceding paragraphs, I hold that the complaint, subject matter of Crl.M.C. No. 2225/2009 is liable to be quashed because the complainant presented the cheque for encashment of the whole amount of ₹ 49,47,600/- though the amount due to him on the date of the presentation of the cheque was ₹ 32,9600/- and he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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