Rahul Gupta v. State NCT of Delhi & Anr.

Upon hearing petitioner’s counsel, and on perusal of the impugned order, order of trial court, decision cited and the material on record, I find that the composite statutory notice, which is said to be defective one, is not on record. At the hearing petitioner’s counsel had handed over a copy of the composite statutory notice of 25th June, 2010, which according to him was exhibited as C-4 at trial and upon its perusal, I find that it is a detailed one and it gives the cheque amount. Merely because it calls upon petitioner-accused to make all the payment the payment due with interest would not render this composite statutory notice to be invalid. Apex Court in Rahul Builders (supra) has declared that a omnibus notice without specifying as to what was the amount due under the dishonor cheque would not subserve the requirement of law. Applying the aforesaid ratio in the instant case, I find that a composite statutory notice not to be effective one in view of the following observations in Rahul Builders (supra):- "10. Service of a notice, it is trite, is imperative in character for maintaining a complaint. It creates a legal fiction. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main Section would not. Unless a notice is served in conformity with Proviso (b) appended to Section 138 of the Act, the complaint petition would not be maintainable. Parliament while enacting the said provision consciously 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 days (sic 15) 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. Respondent No. 1 was not called upon to pay the amount which was payable under the cheque issued by it. The amount which it was called upon to pay was the outstanding amounts of bills, i.e., Rs. 8,72,409/. The notice was to respond to the said demand. Pursuant thereto, it was to offer the entire sum of Rs. 8,72,409/-. No demand was made upon it to pay the said sum of Rs. 1,00,000/- which was tendered to the complainant by cheque dated 30.04.2000. What was, therefore, demanded was the entire sum and not a part of it." The conviction of the petitioner is for the offence which is punishable with a substantive sentence or with fine. Considering the fact that petitioner is related to respondent-complainant and in the peculiar facts and circumstances of this case, I consider that petitioner need not be made to undergo the substantive sentence and the sentence of fine alone would suffice. Accordingly both these petitions as well as pending applications are disposed of setting aside the substantive sentence while upholding the sentence of fine with default clause. A copy of this order be given dasti to counsel for parties. (SUNIL GAUR) Judge APRIL 12, 2013 vn