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TMI Blog2010 (1) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... e drawer. A legal notice dated 23rd January, 2009 was sent to the petitioners calling upon them to make payment within 15 days from the receipt of notice. The petitioners, however, did not make the payment whereupon a complaint under Section 138/141 of Negotiable Instruments Act read with 141 thereof and also under Section 420 of IPC was filed against them. The petitioners, however, have been summoned only under the provisions of Negotiable Instruments Act. Being aggrieved, the petitioners have filed Criminal Misc. Case 2225/2009 assailing the summoning order. 2. Petitioner No. 1 had also issued two other cheques both dated 5th May, 2008; one of Rs. 47,84,000/- and the other for Rs. 18,60,000/- to the respondent. The cheque for Rs. 18,60,000/- was honoured, but the cheque for Rs. 47,84,000/-was returned unpaid. When the complainant/respondent approached the petitioners in this regard, they promised to pay the cheque amount within two- three days and thereafter issued another cheque for Rs. 49,47,600/- in lieu of the previous cheques. The cheque of Rs. 49,47,600/-, when presented to the bank, was returned with remarks funds insufficient. Consequently, the complaint subject matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the learned Counsel for the petitioners is that since the amount due and payable to the complainant was much less than the amount represented by the cheque, on the date these cheques were presented for encashment, the petitioners were not legally required to honour these cheques and, consequently, no offence under Section 138 of the Negotiable Instruments Act is made out against them. It has been further contended by the learned Counsel for the petitioners that in the criminal complaint which is subject matter of Crl.M.C.2225/09 and even in the legal notice dated 19.12.2008, the complainant called upon the petitioners to pay a sum of Rs. 49,47,000/- despite the fact that the amount due on that date was only Rs. 32,97,600/- and the notice calling upon the petitioners to pay more than the amount due from them being illegal and invalid, no offence under Section 138 of the Negotiable Instruments Act is made out against them. 6. Section 138 of Negotiable Instruments Act reads as under: 138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion which comes up for consideration is as to what the expression amount of money. means in a case where the admitted liability of the drawer of the cheque gets reduced, on account of part payment made by him, after issuing but before presentation of cheque in question. No doubt, the expression amount of money. would mean the amount of the cheque alone in case the amount payable by the drawer, on the date of presentation of the cheque, is more than the amount of the cheque. But, can it be said the expression amount of money. would always mean the amount of the cheque, even if the actual liability of the drawer of the cheque has got reduced on account of some payment made by him towards discharge of the debt or liability in consideration of which cheque in question was issued. If it is held that the expression amount of money. would necessarily mean the amount of cheque in every case, the drawer of the cheque would be required to make arrangement for more than the admitted amount payable by him to the payee of the cheque. In case he is not able to make arrangement for the whole of the amount of the cheque, he would be guilty of the offence punishable under Section 138 of Negotiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re so, when such a view will also advance the legislative intent, behind enactment of this criminal liability. 10. The learned Counsel for the respondent has referred to the decision of Satya Narain Singh v. Janardan AIR 1980 Patna 277, where it was held that the consideration for a Negotiable Instrument need not necessarily be consideration mentioned in the instrument and it is permissible to prove existence of another consideration. This judgment has no application to the matter in controversy and this is not the case of the respondent that the petitioner was liable to pay some other debt to him on account of which its liability towards him was equal to or more than the amount of the cheques, on the date these cheques were presented for encashment. It is an admitted case that on the date cheques in question were presented by the respondent for encashment the amount due to him was much less than the amount represented by these cheques. 11. The learned Counsel for the respondent has referred to the decision of a Single Judge of Kerala High Court in Kochayippa v. Suprasidhan 2002 (2) ALT (Crl.) 251. In that case, the transaction between the parties took place on 15.1.1995 when a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the payment of Rs. 16,50,000/- received through RTGS, while issuing the notice of demand dated 19.12.2008. This is not as if the complainant/respondent acknowledged the payment of Rs. 16,50,000/- and despite that asked the petitioner to make payment of the whole of the amount of the cheque. The complainant/respondent did not even refer to the substantial payment which he had received by way of RTGS. To ask the drawer of the cheque to make payment of Rs. 49,47,600/- despite having earlier received a sum of Rs. 16,50,000/- against that very cheque is nothing but a dishonest conduct. Had the petitioner complied with the demands made in this notice, it would have been compelled to later on chase the complainant for recovery of the excess amount paid by it and had the complainant not paid the excess amount received by him, the petitioner would also have been compelled to initiate legal proceedings against him. Therefore, a notice of demand which requires the drawer of the cheque to make payment of the whole of the cheque amount, despite receiving a substantial amount against that very cheque, much before issue of notice, cannot be said to be a legal and valid notice envisaged in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that if an ominous demand is made in a notice as to what was due against a dishonoured cheque, the notice might fail to meet the legal requirement and may be regarded as bad. The same consequence, in my view, would follow where the principal sum demanded in the notice is more than the actual amount payable to the payee of the cheque as principal sum. In the present case, while demanding Rs. 49,47,600/- vide notice dated 19.12.2008, the complainant did not even indicate that the actual amount due to him was only Rs. 32,97,600/- and he called upon the complainant to pay the whole of the amount of the cheque without even trying to justify the demand made by him. 15. In K.R. Indira v. Dr. G. Adinarayana, 2003 (3) JCC (NI) 273, a consolidated notice was sent in respect of four cheques. Two of which were issued to him in the name of the husband and the two were in the name of the wife. It was noted by the Hon'ble Supreme Court that the cheque amounts were different from the alleged loan and the demand made was not of the cheque amount but was of the loan amount. It was held that the complainant was required to make demand for the amount recovered by the cheque which was conspicu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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