Demand must be limited to bounced cheque amount, variation fails prosecution case
(From previous issue) :
8. They also submit that the case was fixed at trial on 22-1-2007 for the examination of the accused under section 342 of the Code but on that particular date the accused intentionally remained absent from appearing in the trial Court. As such, he was not examined under section 342 of the Code and for the fault of the accused, the prosecution cannot be deprived from the justice as neither the prosecution nor the Court had any laches in examining the accused under section 342 of the Code. The convict appellant willfully and deliberately remained absent on the scheduled date of his examination so that he could not be examined and a ground like this can be taken in the appeal. So, the convict appellant should not be given any reward and chance to enjoy the benefit his own fault and fraud.
9. They further submit that the convict appellant as drawer of the cheque had the scope to make payment of the cheque value in favour of the complainant on receipt of the legal notice dated 5-6-2006 but the accused appellant deliberately and intentionally had refrained from making the payment of cheque value to the complainant. Thus the trial Court very rightly and legally found him guilty under section 138 of the NI Act. So the judgment and order of conviction and sentence are liable to be upheld.
10. I have considered the above submissions and arguments of the learned Advocate of both the parties with profound attention and have gone though the materials on record.
11. The learned Advocate for the appellant in order to impeach the judgment of the trial Court assailed the judgment mainly on two grounds. His first ground is that notice as required to serve under clause (b) of the proviso to section 138 for the amount of the cheque value but was not given in compliance of the said provision of law rather it was given for a higher amount than that of the cheque value.
The second point of argument is that the accused was not examined under section 342 of the Code as such, the judgment and order of the trial Court are not maintainable in law.
12. In this case it is almost admitted that there was no wrong in presenting the cheque in the bank for encashment of the cheque value and the notice was served within the specific period and the case was filed by the complainant within the statutory period of time.
13. Now, let us examine the main arguments advanced by the learned Advocate for the appellant. The clause (b) of the proviso to section 138 runs us follows:
“(b) the payee or the holder in· due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and
14. The under lining portion (the underline is mine) of the clause is going to show’ that notice is to be given for the amount of the cheque and not for any other amount and if notice is given other than the amount of the cheque value that is not a valid notice in compliance of the clause (b) of the proviso to section 138 of the NI Act. But I find from the record that in the notice though there had been a statement in respect of the cheque amount but ultimately the demand was made for Taka 5,80,000 which is not the cheque amount at all and it would be wise job for me to copy here the relevant portion of the demand from the notice exhibit 5. The clause 5 of the notice runs as follows:
5| me©‡kl Avcwb †bvwUk MÖnxZv D³ †bvwUk cÖvß nIqvi 7(mvZ) w`‡bi g‡a¨ Avgvi †gvqv‡°j gs UvKv 5,80,000 (cuvP jÿ Avwk nvRvi) UvKv cÖ`vb Kwi‡Z e¨_© nB‡j Avgvi †gvqv‡°j Avcbvi weiæ‡× negotiable Instrument Act Gi 138 aviv g‡Z weÁ Av`vj‡Z gvgjv `v‡qi Kwi‡Z eva¨ nB‡eb Ges Avgvi †gvqv‡°j D³ AvB‡bi eZ©gvb cÖwZKvi cÖv_©bv Kwi‡Z eva¨ nB‡eb|
15. From the above statements of the notice itself, it shows that the ultimate demand was made for Taka 5,80,000 which is inconsistent with the requirements of the law as provided in section 138 of the NI Act.
16. Now, the question before me what may be the consequence of this non-compliance of law noticed above. In this connection the learned Advocate for the appellant referring the case of TCI Finance Ltd vs State of Andhra Pradesh and another reported in company Cases, Volume 124, 2005 page 29-34 submits that while demanding payment by issuing a notice under clause(b) of the proviso to section 138, of the NI Act, the holder in due course of the cheque must demand for the payment of the amount covered by the cheque and if the demand is for lesser or for a higher amount not covered by the cheque which was dishonoured, then the prosecution must fail as the statutory requirement of section 138, proviso (b) is not fulfilled.
17. On going to the reported case it appears that for failure to serve a notice for the cheque value the prosecution case failed. The relevant findings of the reported case runs as follows:
“If the notice is either for lesser amount or for more amount than the amount covered by the cheque, it amounts to failure to fulfil all the technical formalities contemplated under section 138 of the Act, therefore, the respondent-accused herein cannot be prosecuted (page 33 of the judgment)
18. The learned Advocate for the appellant also referred the case of AIR 2003 Supreme Court 4689, KR Indira vs Dr G. Adinarayana. In this reported case the Supreme Court of India also took the same view as it was taken by the High Court of Andhra Pradesh. The Supreme Court of India in the judgment observed in the following manner:
“However, according to the respondent the notice in question is not separable in that way and that there was no specific demand made for payment of the amount covered by the cheque. We have perused the contents of the notice. Significantly not only the cheque amounts were different from the alleged loan amounts but the demand was made not of the cheque amounts but only the loan amount as though it is a demand for the loan amount and nor the demand for payment of the cheque amount; nor could it be said that it was a demand for payment of the cheque amount and in addition thereto made further demands as well. What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case.
The notice in question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount.”
19. The decisions taken in the reported cases in respect of notice demanding the payment of cheque amounts have a full manner application for the case in my hands.
20. In this regard, the learned Advocate for the respondent No. 2 taking me through the notice submits that though a higher amount was demanded through the notice but in the notice the cheque value was also demanded. So in that view of the matter there is no scope to say that the cheque value was not demanded through the notice to the convict appellant.
21. On a meticulous perusal of the notice in question (exhibit 5) it appears that there is a statement in respect of the cheque which was bounced in connection of the case but ultimately the demand was made for Taka 5,80,000 which will be evident from the notice portion of the notice which I have copied within this judgment hereinbefore. So, the notice in question cannot be considered as a notice demanding Taka 4,00,000 which was the cheque value rather notice was served demanding Taka 5,80,000 in flagrant violation of the provisions of section 138 of the NI Act. In the two cases of Indian jurisdiction as discussed earlier I find that they have formed a very strong and tight view that when notice is not served in compliance of the provision of law, the prosecution case must fail.
In my consideration in demanding the payment of money by issuing a notice under clause (b) of the proviso to section 138 of the NI Act, the payee or the holder in due course of the cheque must demand and for the payment of the amount covered by the cheque nor any higher or lesser amount of the cheque and if the demand is made for a lesser amount or for a big amount not covered by the cheque, which was dishonoured the prosecution case must fail as the statutory requirements of section 138 of the NI Act has not been fulfilled.
22. The next argument advanced by the learned Advocate for the appellant that since the convict appellant was not examined under section 342 of the Code the trial has been vitiated as a whole.
23. On going to the materials on record it appears that the case was fixed for examination of the accused on 22-1-2007 but on that day the convict appellant was found absent in the Court and accordingly the trial Court recorded an order noticing the absence of the accused that he could not be examined under section 342 of the Code due to his absence and the Court accordingly fixed the case for hearing of argument on 1-2-2007 but before that fixed date, the convict appellant appearing in the Court below on the following day on 23-1-2007 sought bail and he was again enlarged on bail. But neither the prosecution nor the defence answered sending back a case for retrial from the stage of examination under section 342 of the Code and in the case of Abdul Gafur @ Haji Abdul Gafur and others vs Jogesh Chandra Roy and another 11 BLD (AD) 108=43 DLR (AD) 62 the Appellate Division also taking the same view asked the trial Court for retrial from the stage of section 342 of the Code.
26. Having regards to the above citation I find that had it been a case before me that the judgment of the trial Court is at fault for the non-examination of the convict appellant under section 342 of the Code only, in that case, the case could be sent back on retrial from the stage of examination under Section 342 of the Code but as have found that for some other cogent reason as to the non-compliance of the provisions of clause (b) of the proviso to section 138 of the NI Act the conviction and sentence cannot be upheld. So, there appears no suitable reason for sending back the case on retrial to cure the lacuna taken place for non-examination of the accused under section 342 of the Code. Having regards to the above discussion find that the judgment and the order of conviction and sentence, appealed against, is not maintainable in the eye of law.
27. In the result, the appeal is allowed. The conviction and sentence passed on the convict appellant in Sessions case No. 654 of 2006 arising out of CR case No. 239 of 2006 of CMM Court Chittagong is hereby set-aside and the convict appellant it acquitted of the charge levelled against him. Let the appellant is allowed to withdraw the money deposited at the eve of filing this appeal.
Let a copy of the judgment be sent to the concerned Court along with the lower Courts record.
(Concluded)
8. They also submit that the case was fixed at trial on 22-1-2007 for the examination of the accused under section 342 of the Code but on that particular date the accused intentionally remained absent from appearing in the trial Court. As such, he was not examined under section 342 of the Code and for the fault of the accused, the prosecution cannot be deprived from the justice as neither the prosecution nor the Court had any laches in examining the accused under section 342 of the Code. The convict appellant willfully and deliberately remained absent on the scheduled date of his examination so that he could not be examined and a ground like this can be taken in the appeal. So, the convict appellant should not be given any reward and chance to enjoy the benefit his own fault and fraud.
9. They further submit that the convict appellant as drawer of the cheque had the scope to make payment of the cheque value in favour of the complainant on receipt of the legal notice dated 5-6-2006 but the accused appellant deliberately and intentionally had refrained from making the payment of cheque value to the complainant. Thus the trial Court very rightly and legally found him guilty under section 138 of the NI Act. So the judgment and order of conviction and sentence are liable to be upheld.
10. I have considered the above submissions and arguments of the learned Advocate of both the parties with profound attention and have gone though the materials on record.
11. The learned Advocate for the appellant in order to impeach the judgment of the trial Court assailed the judgment mainly on two grounds. His first ground is that notice as required to serve under clause (b) of the proviso to section 138 for the amount of the cheque value but was not given in compliance of the said provision of law rather it was given for a higher amount than that of the cheque value.
The second point of argument is that the accused was not examined under section 342 of the Code as such, the judgment and order of the trial Court are not maintainable in law.
12. In this case it is almost admitted that there was no wrong in presenting the cheque in the bank for encashment of the cheque value and the notice was served within the specific period and the case was filed by the complainant within the statutory period of time.
13. Now, let us examine the main arguments advanced by the learned Advocate for the appellant. The clause (b) of the proviso to section 138 runs us follows:
“(b) the payee or the holder in· due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and
14. The under lining portion (the underline is mine) of the clause is going to show’ that notice is to be given for the amount of the cheque and not for any other amount and if notice is given other than the amount of the cheque value that is not a valid notice in compliance of the clause (b) of the proviso to section 138 of the NI Act. But I find from the record that in the notice though there had been a statement in respect of the cheque amount but ultimately the demand was made for Taka 5,80,000 which is not the cheque amount at all and it would be wise job for me to copy here the relevant portion of the demand from the notice exhibit 5. The clause 5 of the notice runs as follows:
5| me©‡kl Avcwb †bvwUk MÖnxZv D³ †bvwUk cÖvß nIqvi 7(mvZ) w`‡bi g‡a¨ Avgvi †gvqv‡°j gs UvKv 5,80,000 (cuvP jÿ Avwk nvRvi) UvKv cÖ`vb Kwi‡Z e¨_© nB‡j Avgvi †gvqv‡°j Avcbvi weiæ‡× negotiable Instrument Act Gi 138 aviv g‡Z weÁ Av`vj‡Z gvgjv `v‡qi Kwi‡Z eva¨ nB‡eb Ges Avgvi †gvqv‡°j D³ AvB‡bi eZ©gvb cÖwZKvi cÖv_©bv Kwi‡Z eva¨ nB‡eb|
15. From the above statements of the notice itself, it shows that the ultimate demand was made for Taka 5,80,000 which is inconsistent with the requirements of the law as provided in section 138 of the NI Act.
16. Now, the question before me what may be the consequence of this non-compliance of law noticed above. In this connection the learned Advocate for the appellant referring the case of TCI Finance Ltd vs State of Andhra Pradesh and another reported in company Cases, Volume 124, 2005 page 29-34 submits that while demanding payment by issuing a notice under clause(b) of the proviso to section 138, of the NI Act, the holder in due course of the cheque must demand for the payment of the amount covered by the cheque and if the demand is for lesser or for a higher amount not covered by the cheque which was dishonoured, then the prosecution must fail as the statutory requirement of section 138, proviso (b) is not fulfilled.
17. On going to the reported case it appears that for failure to serve a notice for the cheque value the prosecution case failed. The relevant findings of the reported case runs as follows:
“If the notice is either for lesser amount or for more amount than the amount covered by the cheque, it amounts to failure to fulfil all the technical formalities contemplated under section 138 of the Act, therefore, the respondent-accused herein cannot be prosecuted (page 33 of the judgment)
18. The learned Advocate for the appellant also referred the case of AIR 2003 Supreme Court 4689, KR Indira vs Dr G. Adinarayana. In this reported case the Supreme Court of India also took the same view as it was taken by the High Court of Andhra Pradesh. The Supreme Court of India in the judgment observed in the following manner:
“However, according to the respondent the notice in question is not separable in that way and that there was no specific demand made for payment of the amount covered by the cheque. We have perused the contents of the notice. Significantly not only the cheque amounts were different from the alleged loan amounts but the demand was made not of the cheque amounts but only the loan amount as though it is a demand for the loan amount and nor the demand for payment of the cheque amount; nor could it be said that it was a demand for payment of the cheque amount and in addition thereto made further demands as well. What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case.
The notice in question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount.”
19. The decisions taken in the reported cases in respect of notice demanding the payment of cheque amounts have a full manner application for the case in my hands.
20. In this regard, the learned Advocate for the respondent No. 2 taking me through the notice submits that though a higher amount was demanded through the notice but in the notice the cheque value was also demanded. So in that view of the matter there is no scope to say that the cheque value was not demanded through the notice to the convict appellant.
21. On a meticulous perusal of the notice in question (exhibit 5) it appears that there is a statement in respect of the cheque which was bounced in connection of the case but ultimately the demand was made for Taka 5,80,000 which will be evident from the notice portion of the notice which I have copied within this judgment hereinbefore. So, the notice in question cannot be considered as a notice demanding Taka 4,00,000 which was the cheque value rather notice was served demanding Taka 5,80,000 in flagrant violation of the provisions of section 138 of the NI Act. In the two cases of Indian jurisdiction as discussed earlier I find that they have formed a very strong and tight view that when notice is not served in compliance of the provision of law, the prosecution case must fail.
In my consideration in demanding the payment of money by issuing a notice under clause (b) of the proviso to section 138 of the NI Act, the payee or the holder in due course of the cheque must demand and for the payment of the amount covered by the cheque nor any higher or lesser amount of the cheque and if the demand is made for a lesser amount or for a big amount not covered by the cheque, which was dishonoured the prosecution case must fail as the statutory requirements of section 138 of the NI Act has not been fulfilled.
22. The next argument advanced by the learned Advocate for the appellant that since the convict appellant was not examined under section 342 of the Code the trial has been vitiated as a whole.
23. On going to the materials on record it appears that the case was fixed for examination of the accused on 22-1-2007 but on that day the convict appellant was found absent in the Court and accordingly the trial Court recorded an order noticing the absence of the accused that he could not be examined under section 342 of the Code due to his absence and the Court accordingly fixed the case for hearing of argument on 1-2-2007 but before that fixed date, the convict appellant appearing in the Court below on the following day on 23-1-2007 sought bail and he was again enlarged on bail. But neither the prosecution nor the defence answered sending back a case for retrial from the stage of examination under section 342 of the Code and in the case of Abdul Gafur @ Haji Abdul Gafur and others vs Jogesh Chandra Roy and another 11 BLD (AD) 108=43 DLR (AD) 62 the Appellate Division also taking the same view asked the trial Court for retrial from the stage of section 342 of the Code.
26. Having regards to the above citation I find that had it been a case before me that the judgment of the trial Court is at fault for the non-examination of the convict appellant under section 342 of the Code only, in that case, the case could be sent back on retrial from the stage of examination under Section 342 of the Code but as have found that for some other cogent reason as to the non-compliance of the provisions of clause (b) of the proviso to section 138 of the NI Act the conviction and sentence cannot be upheld. So, there appears no suitable reason for sending back the case on retrial to cure the lacuna taken place for non-examination of the accused under section 342 of the Code. Having regards to the above discussion find that the judgment and the order of conviction and sentence, appealed against, is not maintainable in the eye of law.
27. In the result, the appeal is allowed. The conviction and sentence passed on the convict appellant in Sessions case No. 654 of 2006 arising out of CR case No. 239 of 2006 of CMM Court Chittagong is hereby set-aside and the convict appellant it acquitted of the charge levelled against him. Let the appellant is allowed to withdraw the money deposited at the eve of filing this appeal.
Let a copy of the judgment be sent to the concerned Court along with the lower Courts record.
(Concluded)