In an appeal, while agreeing with the judgment of the trial court, Justice Ajay Mohan Goel noted that even though there is no formal notice under the NI Act, the demand for the amount of the cheque bounce is necessary and without it, notice will not be a notice in the eye of the law.
Brief Facts:
Through the current appeal, the judgment passed by the court of learned sub-divisional judicial magistrate has been challenged, wherein a complaint was filed under section 138 of the Negotiable Instruments Act.
The appellant who is also a complainant filed a complaint against the respondent under section 138 of the NI Act on the ground that she had filed objections before the Land Acquisition Officer, Bilaspur against an award that was made in favor of the accused. During those proceedings, the parties arrived at a compromise and in terms of the compromise, a cheque for an amount of Rs.3,00,000/ was issued by the accused. The cheque was submitted by the complainant which was returned as it was not post-dated. Later a notice was issued under the NI Act, but even then, the amount was not paid hence, the complaint was filed. The complaint was then rejected by the trial court; hence the appellant filed the current appeal.
Contentions of the Appellant:
The earned counsel for the appellant argued that the trial court has taken a hyper-technical view as it failed to appreciate that the notice which was issued had all the ingredients of the provisions of the NI Act, and just because one line was missing that is the demand of money, it does not mean that the same did not amount to statutory compliance of the provisions of the NI Act. Accordingly, it was submitted that the present appeal should be allowed and the judgment passed by the learned court must be set aside.
Contentions of the Respondents:
The respondents argued that there is no infirmity in the judgment passed by the learned trial court as it is very clear under the law that until and unless, the notice envisaged under the provisions of the NI Act aligns with the statutory provisions, the same cannot be said to be a notice in the eyes of law. And it is not the date when the holder of a cheque presents the cheque with his or her bank that matters, but the date on which the cheque is presented to the payee bank that is what determines whether the cheque has been furnished within the validity of the cheque or not. Accordingly, it was submitted that the present appeal is devoid of merit.
Observation of the Court:
The court then noted that the cheque was received by the payee bank from the appellant’s bank after a delay of 6 months from the date of issuance of the cheque. The court then referred to the Supreme Court’s judgment in Shri Ishwar Alloy Steels Ltd. v. Jayaswals Neco LTD and held that accordingly, there was no infirmity in the findings returned by the learned Trial Court that the cheque was presented before the payee bank after the cheque had expired.
The court then quoted the relevant paragraphs of the notice issued by the appellant after the dishonoring of the cheque according to which it was noted that no demand for the payment of the said amount of money was raised in the notice. Then supreme court’s judgment in K.R. Indira v. Dr. G.Adinarayana, where it was held that in a notice under NI Act even though there is no formal notice, making a demand for the amount covered by the bounced cheque is necessary. It was then noted in the current case, no demand of the amount of the bounced cheque was made and as noted by the trial court the notice was no notice in the eyes of law.
The Decision of the Court:
The court did not find merit in the present appeal and the same was dismissed.
CASE TITLE: Dolma Devi v Roshan Lal
CORAM: Justice Ajay Mohan Goel
CASE NO.: Criminal Appeal No. 346 of 2011
ADVOCATE FOR PETITIONER: Mr. Vir Bahadur Verma, Advocate
ADVOCATE FOR RESPONDENT: Mr. Varun Rana, Advocate
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