1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.195 OF 2009 Satish Jamnadas Dattani : Petitioner V/s. Gordhandas Jamnadas Kapadia & Anr. : Respondents ..... Mr.Robin Jaisinghani with Mr.Basant Tikolani i/b. M/s.Jhangiani, Narula & Associates for the petitioner. Mr.Niranjan Mundargi with Mr.S. Mehta for respondent no.1. Mrs.R.V.Newton, Addl. Public Prosecutor for the State. .... CORAM : S.A. BOBDE, J. DATE : AUGUST 10, 2009. ORAL ORDER: Rule, returnable forthwith. The learned counsel for the respective respondents waive service. Heard by consent. 2. This is an application under section 482 of the Code of Criminal Procedure challenging the issue of process under section 138 of the Negotiable Instruments Act, 1881. 3. Mr.Jaisinghani, the learned counsel for the petitioner, has 2 challenged the process only on one ground, viz., that the notice dated 4.5.2007 preceding the launch of prosecution is not, in accordance with law. According to the learned counsel, the notice does not specify the cheque number nor the amount and is, therefore, not a notice as contemplated by section 138 of the Negotiable Instruments Act. The prosecution is thus in contravention of section 138 which provides that the section (138) will not apply unless 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. The relevant proviso reads as follows:- Provided that nothing contained in this section shall apply unless-- (a) ................................................................. (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 (c) ..........................................................” 3 There is no doubt that a notice making a demand of the amount is a pre- condition for launch of a prosecution under this section. 4. The material statement in the notice reads as follows:- “As per the Agreement it was agreed that you will orally instruct us to deposit the cheques and according to your oral instructions all your three cheques were deposited on 26th April 2007 which were to be deposited in January 2007, February 2007 and March 2007. We have favoured you at the most on your request and the cheques were deposited on your oral instructions to us. It is surprising and shocking that all your three pending cheques have bounced with the note “stopped payment by Drawer.” At the end, the demand is made in the following words:- “Please issue us pay order of Rs.26,00,000=00 (rupees twenty six lakhs only) (balance payment in 4 lieu of the above three bounced cheques plus interest @ 12% for the entire delay period and Rs.10,000=000 (sic) towards cheque bouncing charges immediately upon receipt of this letter.” The notice does not state the numbers of cheques, the dates on which the cheques were issued and the amount of each cheque. Only the words “above three bounced cheques” in the demand at the end of the notice suggests that there are three cheques in question. In short, it is not possible to understand in respect of which cheque the demand is made. 5. It is true that clause (b) of the proviso to section 138 does not specify that the notice must contain the cheque number, date of the cheque or the amount of each cheque specifically. It is, however, obvious from the purport of the proviso that a notice is provided for in order to give the drawer of the cheque or cheques in question a clear notice that the cheque issued by him has been returned unpaid. Clause (b) contemplates that the payee of the cheque shall make a demand for the payment of “the said amount of money” along with information received by him from the Bank regarding “the return of the cheque as unpaid”. The article “the” is consciously used to refer to the cheque or cheques which has been returned unpaid. The purpose of clause (b) of the proviso 5 is to make the liability of punishment imposed by section 138 conditional upon a notice issued to the drawer of the cheque. The notice, therefore, contemplated must be clearly a notice which enables the drawer of the cheque to identify the cheque which has been returned as unpaid and thereupon either to make good the loss or face prosecution. Indeed, the communication of sufficient details necessary for identification are obviously necessary since such details alone will enable the drawer of the cheque to make payment of the amount of money contemplated by clause (c) or discover if the claim is mischievous or false. 6. In Suman Sethi v. Ajay K. Churiwal [(2000) 2 SCC 380], Their Lordships made the following observations:- “8. It is a well-settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the “said amount” i.e. the cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where in addition to the “said amount” there is also a claim by way of interest, cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while 6 giving the break-up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, 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.” Indeed, the term “the said amount” refers to the cheque amount which obviously requires the details of the cheque, etc. I am, therefore, of view that a notice which does not give sufficient details of the cheque which are allegedly returned unpaid is invalid and any proceedings in pursuance thereof is illegal and liable to be set aside. 7. Mr.Mundargi, the learned counsel for the respondent no.1, however, relied on the judgement of the learned single Judge of this Court in Kapila Dairy Pvt. Ltd. v. Rajendra Balasaheb Kulkarni (2008 (2) DCR 153) where the learned Judge observed from the facts of that case:- 7 “Non-mentioning of cheque numbers in the demand notice by itself cannot be a ground to hold that there was no demand.” However, notice in that case was such that there was no confusion at all “in relation to the amount as well as the cheques.” In that case, apparently, it was clear from the admission of the complainant, statement of the accused and the letter on record that there was specific demand of amount in respect of three particular cheques. As observed earlier, the facts of the present case are different. 8. In this view of the matter, the rule is made absolute in terms of prayer clauses (a) and (b). S.A. BOBDE, J.