1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 654 OF 2008 M/s. Ex-Servicemen Multiple Services and Consultants .. Applicant Vs. Menshen Ropa Plastic Pvt. Ltd & Ors. .. Respondents. Mr. S. B. Shetye for the Applicant. Mr. A. V. Bhuskate i/b Mr. R. B. Deshmukh for R. Nos.1 & 2. Mr. S. R. Shinde APP for Respondent No.3 State. CORAM : MRS. R. S. DALVI, J. DATE : 4th December, 2009. P.C. 1. Heard both the parties. 2. A fine point of law arises from the impugned judgment of Sessions Judge, Pune in Criminal Revision Application No. 758 of 2008 passed on 22.09.2008 under which the order of issuance of process under Section 138 of the Negotiable Instrument Act was set aside and the complaint to that extent was dismissed. 3. Process was issued by the learned Magistrate on 26th 2 August, 2008 under the Criminal Case No. 13627 of 2008 in the Court of JMFC, Pune. The complaint was filed under Sections 138 and 141 of the Negotiable Instruments Act read with Section 420 of the Indian Penal Code. The complaint came to be filed upon the dishonour of the cheque as well as upon certain other transactions due and payable by respondent No.1 to the applicant. 4. A statutory notice was issued under Section 138 of the Negotiable Instruments Act dated 19.03.2008 specifying the cheque which came to be issued for the discharge of liability and the legal debt payable by respondent No.1 to the applicant herein. The cheque was for Rs.2 lacs dated 23.01.2008 bearing No. 825225 drawn on HDFC Bank Ltd, Boat Club Branch, Pune. The cheque was deposited and was returned by the bank with the endorsement “payment stopped by the drawer”. 5. The demand notice came to be issued for the total liability of the defendants. The total liability is shown to be Rs. 3,83,162/- inclusive of the cheque amount together with interest @ 18 % p.a. thereon and charges of Rs.5,000/- towards notice. 6. Hence, the notice dated 19.03.2008 is the statutory 3 notice under Section 141 of the Negotiable Instruments Act, a statutory notice under Section 3 of the Interest Act as also a notice for repayment of amount due under a General Law of Contracts. 7. The complaint came to be filed upon the case of dishonour of cheque and upon the case of cheating. Paragraph 3 of the complaint mentions about the case under Section 138 of the Negotiable Instruments Act. Para 4 mentions about giving false representation and committing breach of trust and cheating the complainant, making out a case under Section 406, 417, 419 & 426 of the Indian Penal Code. 8. Para 6 of the complaint inter alia calls for payment of the total outstanding amount inclusive of the cheque amount and the interest specified therein. 9. The learned Magistrate issued process as per the notice. Learned Sessions Judge has quashed and set aside the process with regard to complaint under Section 138 of the Negotiable Instrument Act only. Hence, the process issued under Section 420 of the Indian Penal Code remains. 4 10. The complainant requires the process to be issued under both the offences. The accused argues that, the process cannot be issued under Section 138 of the Negotiable Instruments Act as per the observations of the Hon’ble Supreme Court in the case of “Rahul Builders Vs. Arihant Fertilizers and Chemical, 2007-Crimes (Sc)-4-235\2008-SCC-2-321”. Hearing of the judgment shows that the service of notice under Sections 138/141 of the Negotiable Instruments Act was to be in respect of all unpaid amounts under the cheque as also other incidental expenses like costs and interest. In that case the cheque for Rs.1,00,000/- was dishonoured. A larger sum was claimed. The judgment further observes that in that case the notice does not specify what was the amount due under the dishonoured cheque. In that case the accused was not called upon to pay the amount which was payable under the cheque issued by such accused. The accused was called upon to pay “outstanding amount of the bills”. Consequently it was observed that the notice was for the entire amount of the outstanding bills and no demand was made upon the accused to pay the sum under the dishonoured cheque. It was observed : 5 “what was therefore demanded was the entire sum and not part of it”. 11. The Supreme Court relied on it’s earlier judgment in the case of “Suman Sethi Vs. Ajay K. Churiwal and Another [(2000) 2 SCC 380]” in which it was observed that, the notice was to be read as a whole. The demand was to be made for the cheque amount. Interest and costs could also been demanded. Whether the notice is bad would depend upon the language of the notice. If the notice gave the break-up of the claim being for the cheque amount, interest, damages etc. separately specified, the additional claims would be severable and would not invalidate the notice. “If, however, in the notice the demand is made without specifying what was due under the dishonoured cheque it would fail to meet the legal requirements”. 12. The material words are “without specifying what was due under the dishonoured cheque” . The parties in this case specified that Rs.4 lacs are payable under the dishonoured cheque No. 825225 dated 23.01.2008 drawn on HDFC Bank Ltd, Boat Club Branch, Pune deposited with the banker and dishonoured for the reason “funds insufficient” on 29.01.2008 and later for the 6 reason “payment stopped by the drawer” on 22.02.2008. The last paragraph of the notice calling the accused to pay the amount shows the consolidated amount as the total outstanding amount inclusive of the cheque amount together with interest and costs. 13. Hence the notice is not “without specifying the amount due under the dishonoured cheque”. The notice is therefore in compliance with Section 138 of the Negotiable Instruments Act. Hence, the criminal complaint under Section 138 is maintainable. 14. The process was rightly issued by learned Magistrate. Recall of the process under Section 138 of the Negotiable Instruments Act is incorrect. The order of the learned Sessions Judge dated 22.09.2008 is, therefore, set aside. The learned Magistrate shall continue the trial upon the process already issued. 15. Criminal Revision Application stands disposed of accordingly. ( R. S. DALVI, J. )