Crl. Misc. No. 27961 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 27961 of 2008 (O&M) Date of decision: August 18, 2010 Vinod Kumar Arya and another ...Petitioners Versus Dalel Singh Ahlawat ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. RS Rai, Senior Advocate with Ms. Meenakshi Dogra, Advocate, for the petitioners. Mr. Mukesh Yadav, Advocate, for the respondent. GURDEV SINGH, J. Petitioners-Vinod Kumar Arya and Varun Arya have filed this petition under Section 482 of the Criminal Procedure Code for quashing complaint No. 51 dated 20.1.2006 filed against them by Dalel Singh Ahlawat-respondent/complainant for the offences under Sections 420 and 120-B IPC and Sections 138 and 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and the summoning order dated 28.1.2006. The above referred complaint has been filed on the ground that the petitioners/accused were aware of the fact that the complainant had received Rs. 20 lakhs as retiral benefits and they requested him to lend that amount to them. Accordingly, the complainant gave two cheques both dated 17.7.2005 of Rs. 19,40,000/- and Rs. 60,000/- to them. Petitioner/accused No.1 executed the receipt and issued Cheque No. 490624 dated 19.7.2005 for the sum of Rs. 20 lakhs, drawn on State Bank of India Crl. Misc. No. 27961 of 2008 2 in discharge of said liability. The accused had been persuading him not to present the cheque in the bank and that they would re-pay the loan amount in cash. When the date of the cheque was going to expire, he presented the same for payment but was dishonoured on account of insufficient funds in the account of the accused. On 9.12.2005, he served a legal notice upon accused No.1 and inspite of service of the notice, the amount of the cheque was not paid. The accused again made a promise to re-pay the loan amount. They paid Rs. 12 lakhs to him on 2.1.2006 and promised that a sum of Rs. 20 lakhs would be paid upto 10th of that month and advised him not to present the cheque again to his banker. When the cheque was presented, the same was dishonoured with the remarks “Refer to Drawer”. In support of the complaint, the complainant produced preliminary evidence and on the basis thereof, the accused were summoned for the offences under Sections 138 and 142 of the Act and Sections 420 and 120-B IPC. The complaint and the summoning order have been challenged in this petition on the grounds that no offence under Sections 420 and 120-B IPC or under Sections 138 and 148 of the Act is made out from the contents of the complaint. After legal notice was received, a cheque of Rs. 12 lakhs was issued in favour of the complainant and in order to make full payment of the loan amount, Pay Order No. 107806 for the sum of Rs. 8,24,000/- was issued to the complainant and that amount was duly received by him. After the cheque amount had been received by the complainant, no cause of action survives. Notice so served by the complainant, in which a demand of Rs. 3.5 crores has been made, is vague and the same is not proper legal notice. The fact that the complainant had received back the loan amount has been concealed. On the date the complaint was filed, there was no legally Crl. Misc. No. 27961 of 2008 3 enforceable debt against the petitioners. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the petitioners that the amount of loan so advanced to the petitioners/accused was returned by them before the complaint was filed and after the notice was issued by the complainant. In that eventuality, the complainant had no cause of action to file the complaint itself. He also contended that the notice so served upon the petitioners is not legal and valid as no demand of the cheque amount was made therein. That itself is a ground for quashing the complaint and the summoning order. On the other hand, it has been submitted by the learned counsel for the respondent that sum of Rs. 12 lakhs was received by the complainant before filing of the complaint and the balance amount of Rs. 8,24,000/- was not received. The payment was to be made by the petitioners within 15 days of the receipt of the notice but the same was not done and, as such, they committed the offence under Section 138 of the Act and the complaint is very much competent. He also tried to assert that the notice so served upon the petitioners was legal and valid and that cannot be made a ground for quashing the complaint. There is no dispute between the parties that out of Rs. 20 lakhs, for which the cheque in question was issued, Rs. 12 lakhs were paid by the petitioners to the complainant before filing of the complaint itself. As to whether the balance amount was also paid, is a question of fact which cannot be gone into, while deciding this petition. To constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:- Crl. Misc. No. 27961 of 2008 4 (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v) the payee or the holder in due course of the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. The challenge in the present petition is about the legality and validity of the notice so served by the complainant upon the accused. That Crl. Misc. No. 27961 of 2008 5 notice has been annexed with the present petition as Annexure P/3. Vide this notice, the complainant never made the demand of Rs.20 lakhs for which the cheque in question was issued. The demand had been made for compensation of Rs. 3.5 crores + Rs. 11,000/- as costs of the legal notice. As per the above said ingredients No. (v), the complainant was required to make a demand for the payment of the amount of the cheque. In K.R. Indira versus Dr. G.Adinaryana (2003) 8 Supreme Court Cases 300, it was held that there must be a demand for the sum covered by the dishonoured cheque, though there may be some additional claims in the demand. In case the demand of the amount of the cheque is not made, which is one of the incriminating circumstances, which exposes the drawer for being proceeded against under Section 138 of the Act, the same amounts to the non- compliance of the ingredients of that offence. It was held by the Hon'ble Supreme Court in Suman Sethi v. Ajay K. Churiwal (2000) 2 SCC 380, that if in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, the notice might well fail to meet the legal requirement and may be regarded as bad. Thus, the notice so served by the complainant upon the accused is not legal and valid and is bad in law. In that case the complaint under Section 138 of the Act is not competent and is liable to be quashed. Accordingly, the petition is hereby accepted. The complaint, the summoning order and the subsequent proceedings are ordered to be quashed. August 18, 2010 (GURDEV SINGH ) prem JUDGE