Full Text
HIGH COURT OF DELHI
Date of Decision: 12.02.2024
SAMEER SINGH ..... Petitioner
Through: Ms.Pranjal Shekhar & Mr.Aditya Singh, Advs.
Through: Mr.Shoaib Haider, APP.
None for R-2.
JUDGMENT
1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’) seeking quashing of the order dated 10.12.2019 passed by the learned Metropolitan Magistrate-01 (NI Act), Central, Tis Hazari Court, Delhi in CC No. 13125/2019, titled Mohd. Sameer Devli v. Sameer Singh.
2. The said complaint has been filed by respondent no.2 inter alia complaining that cheque no. 380084 dated 16.09.2019 drawn on State Bank of India, 3rd Floor, P.B.B., Vipul Khand, Gomti Nagar, Lucknow, Uttar Pradesh-226010 Branch by the petitioner for a sum of Rs.1,10,000/- has been returned unpaid for the reason, ‘fund insufficient’. The respondent no.2 had thereafter issued a legal notice of demand on 22.10.2019, however, the petitioner had not made the payment.
3. The learned counsel for the petitioner submits that the above complaint is not maintainable inasmuch as, in the notice dated 22.10.2019, respondent no.2 had made a demand of Rs.1,82,850/- against the cheque amount of Rs.1,10,000/without specifying the reason for demanding the excess amount. Placing reliance on the judgments of the Supreme Court in Suman Sethi v. Ajay K. Churiwal and Another, (2000) 2 SCC 380 and Rahul Builders v. Arihant Fertilizers & Chemicals and Another, (2008) 2 SCC 321, he submits that though an excess amount can be demanded in the demand notice, however, it must clearly give the break-up of the claim by stating the cheque amount and the additional amount that it seeks for the reasons that are severable. In absence thereof, the notice would not be treated as a valid notice under Proviso (b) of Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘NI Act’).
4. Inspite of service of notice, none is appearing for respondent no.2.
5. In the present case, the demand notice dated 22.10.2019 issued by the respondent no.2 mentions that the cheque in question was for a sum of Rs.1,10,000/-. Without giving any further reason or justification for the same, the notice demands from the petitioner a sum of Rs.1,82,850/-. The relevant extract from the notice is as under:- “In the circumstances hereinabove narrated, I call upon you to make the payment of Rupees One Lac Eighty-Two Thousand Eight Hundred fifty (Rs. 1,82,850/ to my client within I[5] days from the receipt of this notice, failing which my client shall be compelled to take appropriate legal action against you in the competent courts of law at your risks, costs and consequences thereof You are also liable to pay Rs.11000/- as the cost of this notice. Copy retained in my office for reference, and further action, if required.”
6. In Suman Sethi (Supra), the Supreme Court has held as under:-
7. The above view was followed by the Supreme Court in Rahul Builders (Supra), holding as under:-
8. In the present case also, the demand notice in a vague manner demanded a sum of Rs.1,82,850/- against the cheque amount of Rs. 1,10,000/- without specifying the reasons for demanding the enhanced amount. In view of the above precedents, the notice issued by the respondent no.2 to the petitioner which formed part of the cause of action for filing the complaint by the respondent no.2 against the petitioner, is not in conformity with Proviso (b) to Section 138 of the NI Act and therefore, cannot constitute the cause of action for filing of the complaint.
9. Accordingly, the CC No. 13125/2019, titled Mohd. Sameer Devli v. Sameer Singh, pending before the learned Metropolitan Magistrate-01 (NI Act), Central, Tis Hazari Court, Delhi and the order dated 10.12.2019 summoning the petitioner accused therein, is quashed.
10. The petition is allowed in the above terms. The pending application is also disposed of.
11. There shall be no order as to costs.