1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Criminal Miscellaneous Petition No.139 of 2000. Sandeep Jain son of Shri Popat Lal Jain VERSUS Smt. Anita Devi wife of Shri Vimal Kumar Date of Order :::: 06/02/2009. Hon'ble Mr. Justice Bhanwaroo Khan Mr. R.P. Agarwal, Counsel for the Petitioner None present for the respondent By the Court : The petitioner viz., Sandeep Jain, against whom a complaint for the offence under Section 138 of the Negotiable Instruments Act, was lodged by the respondent-Smt. Anita Devi with the averments that in the business dealing for the amount, which remained due against the petitioner, a cheque of Rs.10,000/- was given by him to the respondent, which was dishonoured. A notice for payment of the money was given to the petitioner, but without any result. Hence, a complaint was lodged by the respondent against the petitioner. 2 A notice was served upon the respondent, but no one has appeared on his behalf. Heard the learned counsel for the petitioner and perused the impugned orders as well as record of the case. Only argument of the learned counsel for the petitioner is about the statutory notice, which was served upon the petitioner. Learned counsel for the petitioner submits that the statutory notice is not as per the norms because if the notice so given, there was no demand of Rs.10,000/-, instead the total amount outstanding against the petitioner was demanded and specifically there is no mention of any cheque of Rs.10,000/-, which was alleged to have been given by the petitioner to the respondent, so the statutory notice has not been given as per the norms. The proceedings against whom cannot be continued. The proper notice should have been given by the respondent. The payee after bounce of the cheque should demand for the payment of the said amount of cheque by giving a notice in writing, to the drawer of the cheque, within thirty days. The notice should speak about the 3 amount of cheque, which is being demanded by the payee. In the instant case, it has been mentioned by the respondent that Rs.1,66,710/- is due against the petitioner, which is being demanded by the respondent. There is no mention of any cheque of Rs.10,000/-, which alleged to have been dishonored. In support of his case, the learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Apex Court in the case of Rahul Builders Vs. Arihant Fertilizers and Chemicals and Another, reported in (2008) 2 S.C.C. Page 321 in which it was categorically held that the service of a notice, it is trite, is imperative in character for maintaining a complaint. It creates a legal fiction. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main section would not. Unless a notice is served in conformity with proviso (b)appended to Section 138 of the Act, the complaint petition would not be maintainable. Parliament while enacting the said provisions consciously imposed certain conditions. One of the conditions was service of a notice making demand of the payment of the amount of cheque as is evident from the use of the phraseology 4 “payment of the said amount of money”. Such a notice has to be issued within a period of 15 days from the date of receipt of information from the bank in regard to the return of the cheque as unpaid. The statute envisages application of the penal provisions. A penal provision should be construed strictly; the condition precedent wherefor is service of notice. It is one thing to say that the demand may not only represent the unpaid amount under cheque but also other incidental expenses like costs and interests, but the same would not mean that the notice would be vague and capable of two interpretations. An omnibus notice without specifying as to what was the amount due under the dishonoured cheque would not subserve the requirement of law. In the instant case, the petitioner was not summoned to pay the amount, which was payable under the cheque issued, but was asked to pay outstanding amount of Rs.1,66,710/-. Such notice is not a legal notice in terms of the provisions of Section 138 of the Negotiable Instruments Act, so the proceedings in the light of the above cited judgment of the Hon'ble Apex Court cannot be continued in absence of legal and valid notice to be issued by the respondent, as per provisions 5 of Section 138 (b) of the Negotiable Instruments Act, therefore, this criminal miscellaneous petition deserves to be accepted. Consequently, the criminal proceedings filed by the respondent under Section 138 of the Negotiable Instruments Act before the Additional Chief Judicial Magistrate, Sikar in criminal case No.10/99/17/A/99 (Anita Devi Vs. Sandeep Jain) are quashed. This miscellaneous petition stands allowed, as indicated above. (Bhanwaroo Khan) J. ashok/ 6