HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No. 4648 of 2009 ORDER: Heard Sri P.Rajesh Babu, learned counsel for the petitioner, and Sri H.Prahalad Reddy, learned Additional Public Prosecutor, who entered appearance for the second respondent. No notice is being ordered to the first respondent, as the matter is being disposed of at the stage of admission. The criminal petition has been filed questioning the act of the Judicial Magistrate of First Class, Manthani, of taking cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act. The complainant alleges that the petitioner was advanced an amount of Rs.2,50,000/- as loan repayable with interest for his family necessities by the complainant and that the cheque in question was issued towards discharge of a legally enforceable debt. The complainant further alleges that the cheque was dishonoured due to insufficiency of funds and a legal notice dated 05.06.2008 was issued which was neither answered nor complied with. What the petitioner contends is that the details of the date of lending, rate of interest, the agreed period of return and presence of any witnesses, etc. concerning the transaction were not specified due to which the complaint should have been rejected in limine by application of mind of the Court to the provisions of Section 138 of the Negotiable Instruments Act. The petitioner also contends that the Court below should have seen the several contradictions and discrepancies in the notice and also the reply legal notice issued by the petitioner. The corrections in the complaint should also have been noticed and hence the petitioner seeks quashing of proceedings against him. The learned counsel for the petitioner relies on Suman Sethi v. Ajay K.Churiwal[1] concerning the manner in which a notice under Section 138 of the Negotiable Instruments Act should be worded. The Apex Court held that the expression “said amount of money” refers to the words ‘payment of any amount of money’ occurring in main Section 138 i.e. the cheque amount and so in a notice, a demand has to be made for the cheque amount. However, the Apex Court made it clear that it is a well-settled principle of law that the notice has to be read as a whole and if no demand is made for the “said amount”, the notice would fall short of the legal requirement. But, where in addition to the said amount i.e. cheque amount, there is also a claim by way of interest, costs, etc. whether the notice is bad would depend on the language of the notice. The Apex Court pointed out that if it was an omnibus demand without specifying what was due under the dishonoured cheque, the notice may fail to meet the legal requirements but if in a notice, while giving the break-up of the claim, the cheque amount, interest, damages, etc. are separately specified, other claims for interest, costs, etc. would be superfluous and additional claims would be separable and would not invalidate the notice. Applying the said test to the notice dated 05.06.2008 issued by the complainant to the petitioner herein, the notice specifies that the amount borrowed was Rs.2,50,000/-, that the cheque was issued for a sum of Rs.2,50,000/- and that the said cheque was dishonoured due to insufficiency of funds. In the last paragraph of the notice, the complainant demanded payment of above said cheque amount along with interest thereon within ten days and warned that in default, the petitioner is liable to bear consequences and costs of the legal notice. The notice clearly gave reference to the sum of Rs.2,50,000/- for which the cheque was issued and it states about the above said amount being called upon to be paid. As such within the principles laid down by the Apex Court, the notice cannot be considered to be ex facie bad. The decision reported in G.Rajaram v. State of A.P.[2] is also relied on by the petitioner wherein the learned Judge with reference to the precedents on the aspect made it clear that the notice after dishonour of the cheque is to be issued for payment of the amount covered by the dishonoured cheque and the fact that additional amounts over and above the amount covered by the dishonoured cheque are demanded did not vitiate the said notice. The learned Judge extracted the observations of the Apex Court that what is necessary is making of a demand for payment of the amount covered by the bounced cheque. Such a demand was conspicuously absent in the notice in that case, as in cases where notices with deficiency of such a legal requirement were considered to be bad. But, the notice herein was specific of the amount borrowed, the amount for which the cheque was issued and the cheque being dishonoured. The demand for payment of the above said amount, may be along with interest, is obviously for the payment of Rs.2,50,000/- without any ambiguity. Quashing the criminal case on this ground may not arise at the preliminary stage as of now. The learned counsel for the petitioner further relied on Uplanche Mallikarjun v. Rat Kanti Vimala[3] wherein the complaint was about issuance of the cheque in favour of a Marriage Trust, which was dishonoured due to insufficiency of funds and the accused failed to pay the cheque amount in spite of a statutory notice. The learned Judge with reference to the said facts observed that there was no averment that the cheque was issued by the petitioners in discharge of any legally enforceable debt or other liability, due to which, the complaint was considered not maintainable. In contrast with the said cheque where the background for the issuance of the cheque to the Marriage Trust was no way specified on record, in the present case, it was clearly averred that an amount of Rs.2,50,000/- was borrowed by the petitioner repayable with interest as agreed and though it is true that the said plea was devoid of all the details of date, rate of interest, persons present, etc., such omission to give the details cannot be equated to any omission to plead the existence of a legally enforceable debt or liability. The principle laid down in Mallikarjun (3 supra) is unassailable, but on facts it cannot be said that there was no plea in the present complaint that the cheque was issued in discharge of a legally enforceable debt or liability. The proceedings under Section 482 of the Code of Criminal Procedure are available only in rarest of rare cases, the inherent jurisdiction having to be exercised only with great care and caution as laid down by the Apex Court from time to time. The complaint or a criminal proceeding can be quashed only in case of prima facie absence of indication of any offence or the allegations, even if they are taken as they are, do not disclose any offence or where the criminal proceedings are barred by any Statute or Statutory rules etc. While entertaining and considering the quash proceedings, as laid down in Raja Ram (2 supra), the Court is not supposed to go into the defence available to the accused. Only the allegations in the complaint and the documents produced by the complainant have to be taken into consideration as pointed out by the learned Judge following the Apex Court and if so the complaint cannot be considered to be not disclosing prima facie the existence of an offence which the Court can take cognizance of. In the circumstances, the Court cannot be considered to have not applied its mind to the provisions of Section 138 of Negotiable Instruments Act while taking cognizance of the offence on a legally enforceable debt, the bouncing of cheque and non-compliance with the statutory notice. As such, the criminal petition does not lie on facts and the other disputed facts are not liable for any deep probe in this criminal petition. Accordingly, the criminal petition is dismissed. It is, however, made clear that the determination of the case on merits in accordance with law by the trial Court shall be uninfluenced by any observations made in this petition, which are purely and totally confined to the consideration of the maintainability of the request for quashing the proceedings. ______________________ G.BHAVANI PRASAD, J 7th JULY, 2009 SUR [1] (2000) 2 SCC 380 [2] 2004 (1) ALT (Crl.) 428 (A.P) [3] 1997 Crl.L.J.4237