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Arun v. G.Sankara Narayanan - Crl.OP.No.1413 of 2005 [2007] RD-TN 1439 (13 April 2007)


DATED: 13-04-2007



Crl.O.P.No.1413 of 2005 and

Crl.M.P.Nos.621 and 622 of 2005

Arun .. Petitioner. Versus

G.Sankara Narayanan .. Respondent. Prayer: Petition filed under Section 482 Cr.P.C seeking to call for the records pertaining to the proceedings in C.C.No.1050 of 2004 pending before the District Munsif cum Judicial Magistrate, Ambattur and quash the same. For Petitioner : Mr.S.D.Ramalingam For Respondent : Mr.N.Kumanan Government Advocate (Crl. Side) O R D E R

The petitioner is the sole accused in C.C.No.1050 of 2004 on the file of the learned District Munsif cum Judicial Magistrate, Ambattur for an offence punishable under Section 138 of the Negotiable Instruments Act.

2. In the notice given, a demand has been made for making payment of the money mentioned in those two cheques, each for Rs.5,000/- dated 31.03.2004 and 30.04.2004. Since it has not been paid, it resulted in the complaint before the learned Magistrate.

3. Learned counsel appearing for the petitioner submits that in the statutory notice given, though two cheques each for Rs.5,000/- has been mentioned, in the last paragraph, it has been mentioned as follows: "Therefore, you are hereby called upon to pay the said amount of Rs.5,65,150/- within 15 days on receipt of this notice..".

4. Relying on the language used in the last paragraph of the notice, it is contended that the demand made is confusing. The petitioner could not understand whether the demand has been made for the two cheques, each for Rs.5,000/- or for Rs.5,65,150/-. When a notice is given, it must convey the actual demand and it must be unambiguous to constitute the offence, in the event of the failure of payment of the amount mentioned in the cheque.

5. Learned counsel appearing for the petitioner relied on a case reported in (2000 (I) KLT 701 SC) Suman Sethi Vs. Ajay and relied on the passage, which reads as follows: "If, however, in the notice an omnibus demand is made without specifying what was the due under the dishonoured cheque, notice might well fail to meet the legal requirement and may be regarded as bad".

6. The counsel for the petitioner also relied on a case reported in (1996(2) KLT 886 (Calcutta) Goppa Devi Ozha Vs. Sujit Paul), wherein it has been held as follows: "The wording in clause(b) to the proviso of S.138 "a demand for payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque", refers to the cheque amount and not any other amount either smaller or higher than the amount mentioned in the cheque. So, the notice need to be given demanding the cheque amount. If any bigger amount or smaller amount than the cheque amount is mentioned, in my view, that will amount difficulty to the drawee to know how much amount he has to pay or she has to pay as the case may be and that makes the notice insufficient and vague and the notice will become illegal."

7. Per contra the learned counsel for the respondent/complainant submits that notice as well as the complaint has been given for two cheques, wherein the amount mentioned is for Rs.5,000/- each and the figure mentioned in the last paragraph of the notice is a typographical error. However, in the private complaint filed, correct figures have been given. It is further submitted that apart from those two cheques mentioned in paragraph 1 and 2 of the notice, no other amount is mentioned in the notice, as well as in the complaint.

8. I have perused the materials available on record.

9. A reply notice has been given by the petitioner on 07.09.2004, in which, the petitioner correctly understood that the notice has been given only for those two cheques each for Rs.5,000/- and further in the second paragraph, it is admitted that they are willing to make payment of Rs.10,000/-, but due to some financial constraint the same could not be done. Therefore, it appears that the present point agitated by the petitioner appears to be a belated one and an after thought.

10. It is further contended that the petitioner is liable to pay only Rs.5,000/-. The second cheque has not been issued to the complainant at all and erroneously the same also has been taken into consideration for issuance of notice to the petitioner. The counsel for the respondent/complainant submits that these two cheques are given to the complainant and the same has been admitted in the reply notice. Even otherwise, these disputed facts may have to be agitated only before the trial Court.

11. In view of the facts and circumstances of the case, I do not find any merit in this petition to quash the proceedings. Therefore, the petition is dismissed. Consequently, connected Crl.M.Ps are closed. csh


The District Munsif cum

Judicial Magistrate, Ambattur.


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