TMI Blog2023 (11) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent specifically entails the specific details qua the dates and amounts of all the respective four cheques involved, separately, there can be no dispute qua maintainability of the subject complaint qua them before the learned MM. The said Legal Notice dated 17.04.2017 issued by the respondent is to be read as a whole and not in piecemeal - as neither there is any omnibus demand made by the respondent in the Legal Notice issued within the stipulated time period, nor there is any illegal amount demanded by him, in the facts of the present case, the subject complaint is per se maintainable in the eyes of law. It is also worth noting that the learned MM vide order dated 30.05.2017 issued summons to the petitioners and then rightly framed notice under Section 251 CrPC dated 25.03.2019 to the petitioner no. 2 qua the said three cheques only. Not only that, as the pre-summoning evidence led by the respondent before the learned MM is also based only on the three subsequent cheques dishonoured on 24.03.2017, there is no occasion for this Court to interfere with the proceedings before the learned MM by allowing the present petition. The present petition alongwith the applications, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners filed an application on 02.19.2019 seeking quashing of the said complaint on the ground that the Legal Notice did not represent the correct amount, however, the same was withdrawn by them on 05.01.2023. This resulted in filing of the present petition for quashing of the subject complaint by the petitioners on 09.02.2023. 4. Learned counsel for the petitioners submitted that in both, the Legal Notice as also the subject complaint, the respondent has deliberately failed to mention that the cheque no. 069291 for Rs. 4,00,000/- dated 15.12.2016 stood dishonoured way back on 23.12.2016 and that the same was reflected in the account statement of the respondent. He thus submitted that as the Legal Notice in respect of the said first cheque was time barred, the common Legal Notice for all the four cheques did not fulfil the requirements of Section 138 NI Act, and hence the subject complaint emanating from the said Legal Notice was not maintainable and is liable to be quashed. 5. Then, relying upon Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel, (2023) 1 SCC 578, Rahul Builders v. Arihant Fertilizers Chemicals, (2008) 2 SCC 321 and K.R. Indira v. G. Adinarayana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C issued to the petitioner no. 2, there is no misrepresentation qua the liability of the petitioners. 10. Thereafter, relying upon Rallis India Limited v. Poduru Vidhya Ors. (2011) 13 SCC 88, learned counsel for the respondent submitted that since all the three cheques were issued by the petitioner no. 2 as a partner and agent of the petitioner no. 1 partnership firm, vide Section(s) 18, 19, 25 and 26 of the Partnership Act, 1932, the petitioners are jointly and severally liable for the dishonour of cheques and to make the payments to the respondent. 11. Learned counsel for the respondent then submitted that the petitioners have nowhere denied their liability towards the respondent and by raising hyper-technical issues, the petitioners are only attempting to delay the proceedings. Despite the summons in the subject complaint being issued way back on 30.05.2017, the petitioners never challenged it and moreover the application filed by the petitioners seeking dropping of the proceedings was also withdrawn by them on 05.01.2023 before the learned MM. 12. Learned counsel for the respondent lastly submitted that vide the present petition, the petitioners are forum shoppin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means a legally enforceable debt or other liability. 15. Keeping the aforesaid provisions in mind and as per the facts involved, though the first cheque issued on 15.12.2016 was dishonoured on 23.12.2016 and the Legal Notice dated 17.04.2017 qua it was barred by limitation, however, admittedly, since all the subsequent three cheques issued on 15.01.2017, 15.02.2017 and 15.03.2017 were dishonoured thereafter only on 24.03.2017, the same Legal Notice dated 17.04.2017 qua them was well within the prescribed statutory period. The said Legal Notice being valid, the subject complaint qua the said three cheques also being well within the statutory time period, is also very much valid. 16. It is further pertinent to note the settled law qua the essentials of a valid Legal Notice, as laid down by the Hon ble Supreme Court in Suman Sethi v. Ajay K. Churiwal, (2000) 2 SCC 380 which is as under:- 8. It is a well-settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the said amount i.e. the cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where in addition to the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed certain conditions. One of the conditions was service of a notice making demand of the payment of the amount of cheque as is evident from the use of the phraseology payment of the said amount of money . Such a notice has to be issued within a period of 30 (sic 15) 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 provision 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 19. In the present case, as the Legal Notice dated 17.04.2017 issued by the respondent specifically entails the specific details qua the dates and amounts of all the respective four cheques involved, separately, there can be no dispute qua maintainability of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent before the learned MM is also based only on the three subsequent cheques dishonoured on 24.03.2017, there is no occasion for this Court to interfere with the proceedings before the learned MM by allowing the present petition. 22. Interestingly, despite the fact that it is the case of the petitioners that they never received the aforesaid Legal Notice, they have, to somehow take benefit of the same, placed reliance on it, only after issuance of summons by the learned MM and after framing of notice under Section 251 CrPC. The same cannot be raised before this Court at this stage belatedly and being not the right forum to do so. In any event, in the absence of receipt of the Legal Notice, the summons issued by the learned MM are to be considered as the statutory notice [Re.: C.C. Alavi Haji (supra)]. As such, since the same in the present case is only qua the three subsequent cheques, there is no occasion for this Court to find any fault with the same. 23. The rest of the contentions qua the petitioner nos. 1 and 3 being wrongly impleaded and the effect thereof, it is trite law that the same is a matter of trial and is to be agitated before the Court of inception being ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
