Full Text
Translation output
$-19 to 21 HIGH COURT OF DELHI
CRL.M.C. 5039/2017 & Crl.M.A. 19900/2017 (stay)
ASmSH VERMA Petitioner
Through: Mr. Kedar yadav and Mr. Sanjiv Kr.
Baisoya, Advocates.
CRL.M.C. 5039/2017 & Crl.M.A. 19900/2017 (stay)
ASmSH VERMA Petitioner
Through: Mr. Kedar yadav and Mr. Sanjiv Kr.
Baisoya, Advocates.
VERSUS
SURENDER GARG Respondent
Through: Mr. Jai Prakash Sharma, Advocate for respondent No. 1.
Through: Mr. Jai Prakash Sharma, Advocate for respondent No. 1.
AND
CRL.M.C. 5049/2017 & Crl.M.A. 19918/2017 (stay)
ASmSH VERMA Petitioner
ASmSH VERMA Petitioner
VERSUS
AND
CRL.M.C. 5050/2017 & Crl.M.A. 19919/2017 (stay)
ASfflSH VERMA Petitioner
ASfflSH VERMA Petitioner
VERSUS
2018:DHC:8401
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
31.08.2018 By these petitions under Section 482 Cr.P.C., petitioner has prayed for quashing of following three complaint cases
(a) Case bearing No. 1365/1/15 titled as Surender Garg
31.08.2018 By these petitions under Section 482 Cr.P.C., petitioner has prayed for quashing of following three complaint cases
(a) Case bearing No. 1365/1/15 titled as Surender Garg
VERSUS
Ashish Verma.
(b)Case bearing No. 1364/1/15 titled as Surender Garg
(b)Case bearing No. 1364/1/15 titled as Surender Garg
VERSUS
Ashish Verma (c) Case bearing No. 1363/1/15 titled as Surender Garg
VERSUS
Ashish Verma.
The above complaints have been filed by the respondent against the petitioner under Sections 138/142 of the Negotiable Instruments Act, 1881
(for short, the Act) in respect of eight cheques bearing nos. (i) 803416 dated
02.10.2009, (ii) 803418 dated 06.10.2009, (iii) 803420 dated 10.10.2009, (iv) 803422 dated 14.10.2009, (v) 803417 dated 04.10.2009, (vi) 803419 dated 08.10.2009, (vii) 803421 dated 12.10.2009 and (viii) 803423 dated
16.10.2009 amounting to ^25,000/- each. Respondent has alleged in the complaint that he had supplied computer items worth ^2,00,000/- to petitioner in the month of September, 2009 andpetitioner promised to make payment after 10-12 days. However, the payment was not made to the respondent. When respondent went to the office of petitioner he issued cheques involved inthe complaint cases. Respondent presented the cheques on 26'*^ March, 2010 in his bank namely. Syndicate Bank, New Delhi.
However, the cheques were returned dishonoured with the remarks "funds insufficient". Respondent sent legal notice dated IS"' April, 2010 to the petitioner stating that the amount be paid. Since amounts were not paid, hence the complaints.
Learned counsel for petitioner submits that complaint cases are liable to be quashed since proper demand notice was not served on the petitioner.
The notice served was cryptic notice as the cheque amounts were not demanded vide this notice. It is contended that omnibus notice without specifying as to what amount was due against dishonoured cheques could not fulfil the requirement of law. Accordingly, complaint cases are liable to be quashed. Reliance has been placed on M/S Rahul Builders Vs. M/S
Arihant Fertilizers &Anr. 2008 Crl. L.J. 452 and Suman Sethi vs. Ajay K.
Churiwal & Anr. (2000) 2 SCC380.
In Suman Sethi (Supra) Supreme Court has held thus, "If, however, in the notice an omnibus demand is made without specifying what was due under the dishonored cheque, notice might well fail to meet the legal requirement and may be regarded as bad". In Rahul Builders (supra) also the amount involving the dishonoured cheque was ^1,00,000/-, however, by way ofnotice accused was called upon to remit the payment ofhis pending bills within 15 days of receiving the notice. Supreme Court held that an omnibus notice without specifying as to what was the amount due under the dishonoured cheque would not subserve the requirement of law. It was concluded that since no demand was made for payment ofcheque amount, complaint case under sections 138/142 Negotiable Instruments Act was not maintainable.
In this case, a perusal of the notice shows that specific demand of amounts involved in the cheques was not made. In the notice reference of all the eight cheques were made without specifying the amount involved in each cheque, inasmuch as, the name of the bank on which the cheques were drawn, was not mentioned. The operative portion of the notice reads as under:-
"I, therefore, call upon you through this legal notice that you are advised to make the payment @ 24% per annum within 15 days after receiving this notice otherwise my client has clear instruction to me to file a case against you in the competent court of law on your own risk and consequences, please note."
It is thus clear that demand was made without specifying the amount due under the dishonoured cheques. In my view, the notice is vague and omnibus and is not in conformity with section 138(b) of the
Act.
For the foregoing reasons, I am of the view that no offence is made out under section 138 of the N.I. Act against the petitioners.
Accordingly, the above-mentioned complaint cases arequashed.
All the above-noted petitions are disposed of in the above terms.
Miscellaneous applications are disposed of as infructuous.
AUGUST 31, 2018 rd L.K.IktHAK,
The above complaints have been filed by the respondent against the petitioner under Sections 138/142 of the Negotiable Instruments Act, 1881
(for short, the Act) in respect of eight cheques bearing nos. (i) 803416 dated
02.10.2009, (ii) 803418 dated 06.10.2009, (iii) 803420 dated 10.10.2009, (iv) 803422 dated 14.10.2009, (v) 803417 dated 04.10.2009, (vi) 803419 dated 08.10.2009, (vii) 803421 dated 12.10.2009 and (viii) 803423 dated
16.10.2009 amounting to ^25,000/- each. Respondent has alleged in the complaint that he had supplied computer items worth ^2,00,000/- to petitioner in the month of September, 2009 andpetitioner promised to make payment after 10-12 days. However, the payment was not made to the respondent. When respondent went to the office of petitioner he issued cheques involved inthe complaint cases. Respondent presented the cheques on 26'*^ March, 2010 in his bank namely. Syndicate Bank, New Delhi.
However, the cheques were returned dishonoured with the remarks "funds insufficient". Respondent sent legal notice dated IS"' April, 2010 to the petitioner stating that the amount be paid. Since amounts were not paid, hence the complaints.
Learned counsel for petitioner submits that complaint cases are liable to be quashed since proper demand notice was not served on the petitioner.
The notice served was cryptic notice as the cheque amounts were not demanded vide this notice. It is contended that omnibus notice without specifying as to what amount was due against dishonoured cheques could not fulfil the requirement of law. Accordingly, complaint cases are liable to be quashed. Reliance has been placed on M/S Rahul Builders Vs. M/S
Arihant Fertilizers &Anr. 2008 Crl. L.J. 452 and Suman Sethi vs. Ajay K.
Churiwal & Anr. (2000) 2 SCC380.
In Suman Sethi (Supra) Supreme Court has held thus, "If, however, in the notice an omnibus demand is made without specifying what was due under the dishonored cheque, notice might well fail to meet the legal requirement and may be regarded as bad". In Rahul Builders (supra) also the amount involving the dishonoured cheque was ^1,00,000/-, however, by way ofnotice accused was called upon to remit the payment ofhis pending bills within 15 days of receiving the notice. Supreme Court held that an omnibus notice without specifying as to what was the amount due under the dishonoured cheque would not subserve the requirement of law. It was concluded that since no demand was made for payment ofcheque amount, complaint case under sections 138/142 Negotiable Instruments Act was not maintainable.
In this case, a perusal of the notice shows that specific demand of amounts involved in the cheques was not made. In the notice reference of all the eight cheques were made without specifying the amount involved in each cheque, inasmuch as, the name of the bank on which the cheques were drawn, was not mentioned. The operative portion of the notice reads as under:-
"I, therefore, call upon you through this legal notice that you are advised to make the payment @ 24% per annum within 15 days after receiving this notice otherwise my client has clear instruction to me to file a case against you in the competent court of law on your own risk and consequences, please note."
It is thus clear that demand was made without specifying the amount due under the dishonoured cheques. In my view, the notice is vague and omnibus and is not in conformity with section 138(b) of the
Act.
For the foregoing reasons, I am of the view that no offence is made out under section 138 of the N.I. Act against the petitioners.
Accordingly, the above-mentioned complaint cases arequashed.
All the above-noted petitions are disposed of in the above terms.
Miscellaneous applications are disposed of as infructuous.
AUGUST 31, 2018 rd L.K.IktHAK,
JUDGMENT