KAPIL AGGARWAL Vs. PRAMOD VIJAY KHULLAR
HIGH COURT OF DELHI
Pramod Vijay Khullar
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A.K.SIKRI, J. -
(1.) RAGHU Vias, who is the respondent in this petition, has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as 'the Act') against the petitioner herein. It
is alleged in the complaint that the cheques given by the petitioner to
the respondent has been dishonoured and even when the payment was not
made after the notice of demand was served upon the petitioner, the
complaint was filed. It is not necessary to go into the reasons which led
to the petitioner issuing the cheque and the dishonour of the said
cheque. What is to be stated is that summoning order has been passed and
this has been challenged by the petitioner, who is accused in the said
proceedings, on a very short ground, namely, the notice of demand which
was served upon the petitioner by the respondent before filing the
complaint is not in accordance with law.
(2.) THE only thing which is to be noted in this behalf is that, according to the respondent, as per the averments made in the complaint by him, the
petitioner had approached the respondent and asked for some loan amount
pursuant whereto the respondent had advanced to the petitioner, being a
good friend, a sum of Rs.35,000/-. With the intention to pay this amount,
two cheques in the sum of Rs.5,000/- and Rs.10,000/- respectively were
given by the petitioner to the complainant with an assurance that the
balance amount of Rs.20,000/- shall also be paid before 8.10.2003. The
two cheques on presentation were dishonoured. The notice, which was sent
by the respondent to the petitioner on dishonour of these cheques, stated
about the fact that the cheques had been bounced back. However, in this
notice, the demand which was made was to call upon the petitioner to make
payment of Rs.30,000/- of the loan amount with interest @ 24% per annum.
The demand is in the following language: -
I, therefore, through this legal notice call upon you to make a payment
of Rs.30,000/- of loan amount with interest @ 24% p.a. Rs.15,000/-
towards mental harassment within 15 days from the receipt of this notice,
failing which I have full instructions from my client to prosecute
against you in civil as well criminal courts of law at your costs, risks
and consequences, please note. 3. The neat submission made by learned
counsel for the petitioner, on the basis of which he is seeking quashing
of the summoning order, is that when the two cheques were for a total sum
of Rs.15,000/-, making a demand in the sum of Rs.30,000/- was not proper
inasmuch as demand has to be in terms of the dishonoured cheques.
Therefore, such a demand is not in accordance with the provisions of
Section 138 of the Act and the complaint filed on the basis of such
demand is not a valid demand.
(3.) This submission of the petitioner's counsel has force as it is backed by the judgment of the Supreme Court. In the case of K.R. Indira v. Dr.
G. Adinarayana, 2003 (3) JCC (NI) 273, the Supreme Court held that where
the demand was made not of the cheque amounts but the loan amount as
though it was a demand for the loan amount and not demand for the payment
of the cheque amount, the notice did not meet the requirement of Section
138 of the Act. In Pramod Vijay Khullar v. State and Anr., 2005 (1) JCC (NI) 97, wherein this Court, relying upon the aforesaid judgment of the
Supreme Court, held that when the notice relates to the amount due and
not for the cheque amount that notice would not give rise to a cause of
action for filing a complaint under Section 138 of the Act.;
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