However, it is seen from the impugned judgment and order
that the learned Magistrate has misdirected himself in reading the
evidence available on record so as to incorrectly find that the notice
(Exh.33) issued by the appellant was invalid. It is true that in this
notice the appellant has not mentioned the amount of the cheque
either in figures or in words. What the appellant has mentioned is the
number of the cheque as 656523, date of the cheque being
23/02/1998, name of the Bank on which it was drawn and name of
the Bank to which it was presented for encashment. Then, it is also
mentioned in the notice that the appellant was calling upon the
respondents to pay to the appellant within 15 days of receipt of the
notice the “amount of the cheque”. It is significant to note that in this
notice, except for the amount of the cheque, no other dues or money
have been claimed by the appellant. The notice clearly shows that
what was ultimately demanded by the appellant from the respondents
was nothing but the amount of the cheque. So, it would be important
for this Court to examine whether there was any doubt about the
amount of cheque No.656523 dated 23/02/1998 in the mind of the
respondents.
9. If one goes through the reply of the respondents vide Exh.
39, one would find that respondent No.2 had absolutely no doubt in
his mind about the amount of the cheque and it was of Rs.25,000/.
Even before dishonour of the cheque, the evidence shows, respondent
No.2 had admittedly sent a letter dated 07/3/1998 informing the
applicant that respondent No.2 had not received the payment of Rs.
25,000/, being the amount of the cheque. Thus, this evidence
establishes beyond reasonable doubt that there was absolutely no
confusion or doubt in the mind of respondent No.2 that the amount of
cheque No.656523 dated 23/02/1998 drawn on Jintur Urban CoOp.
Bank was of Rs.25,000/ only. I must say, at this stage, there is no
dispute about issuance of the cheque and it is nobody's case that there
were other cheques of the same date which were dishonoured. In fact,
there is also no doubt about the validity of the notice vide Exh.33 with
no challenge having been made to it on this count at any point. This
can be seen from the reply given by respondent No.2 to the notice vide
Exh.33. Even in the evidence of respondent No.2, no challenge to the
validity of the notice has been made on the ground that the notice
suffered from the vice of vagueness on account of non mentioning of
the amount of the cheque in a specific manner. All these facts would
together show that the parties had understood as to what was the
amount of the cheque and what was due from the drawer under the
cheque to its payee. As such, the learned Magistrate could not have
dismissed the complaint by holding, albeit wrongly, that the notice was
invalid.
10. While recording a wrong finding not based upon the
evidence, the learned Magistrate has misinterpreted the judgment of
the Hon'ble Apex Court rendered in the case of Suman Sethi (supra).
In this case the Hon'ble Apex Court has clearly held that it is well
settled principle of law that the notice has to be read as a whole and in
the notice, demand has to be made for “said amount” i.e. cheque
amount and if no such demand is made, it would have to be examined
if the notice is bad or not on this count by considering the language of
the notice. If, in the notice, a demand has been made not only for the
amount of the cheque but also for the interest and other charges, then
it would be necessary to bifurcate all these amounts by specifying as to
what is due under the cheque and what is due on other counts. But, if
no such bifurcation is made and an omnibus demand is made inclusive
the amount of the cheque as well as the amount due on account of
interest, damages and other charges, such notice would be invalid in
law. The learned Magistrate, confused himself in understanding the
law so laid down by the Hon'ble Apex Court and it appears that the
learned Magistrate was swayed away by some of the observations of
the Hon'ble Apex Court, which he reproduced in the impugned
judgment and order by picking them up half heartedly. Therefore, I
find it necessary to reproduce the relevant observations of the Hon'ble
Apex Court as appearing in paragraph8 of the said judgment in their
entirety and they read as under.:
“It is 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. cheque amount. If no
such demand is made the notice no doubt would fall
short of its legal requirement. Where in addition to
“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 giving up
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, notice might well fail
to meet the legal requirement and may be regarded as
bad.
11. The above referred observations make it clear that in every
case a notice can not be held to be bad only for failure to specify
therein the amount of the cheque and it would depend upon the
language of the notice to come to an appropriate conclusion in the
matter. I have already considered the evidence brought on record by
both the sides and found that this evidence sufficiently establishes the
fact that the notice was complete in all sense and specific demand was
made for payment of the “amount of the cheque” and that there being
no doubt or confusion or dispute about the amount of the cheque, the
notice conveyed what it ought to have and, therefore, valid in the eye
of law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 225 OF 2001
Kamal s/o Babulal Sharma
.. Versus ..
Ramkumar Sagarmal (HUF)
CORAM : S. B. SHUKRE, J.
DATED : 25th SEPT., 2014.
Citation: 2016 ALLMR(CRI)2652
Print Page
that the learned Magistrate has misdirected himself in reading the
evidence available on record so as to incorrectly find that the notice
(Exh.33) issued by the appellant was invalid. It is true that in this
notice the appellant has not mentioned the amount of the cheque
either in figures or in words. What the appellant has mentioned is the
number of the cheque as 656523, date of the cheque being
23/02/1998, name of the Bank on which it was drawn and name of
the Bank to which it was presented for encashment. Then, it is also
mentioned in the notice that the appellant was calling upon the
respondents to pay to the appellant within 15 days of receipt of the
notice the “amount of the cheque”. It is significant to note that in this
notice, except for the amount of the cheque, no other dues or money
have been claimed by the appellant. The notice clearly shows that
what was ultimately demanded by the appellant from the respondents
was nothing but the amount of the cheque. So, it would be important
for this Court to examine whether there was any doubt about the
amount of cheque No.656523 dated 23/02/1998 in the mind of the
respondents.
9. If one goes through the reply of the respondents vide Exh.
39, one would find that respondent No.2 had absolutely no doubt in
his mind about the amount of the cheque and it was of Rs.25,000/.
Even before dishonour of the cheque, the evidence shows, respondent
No.2 had admittedly sent a letter dated 07/3/1998 informing the
applicant that respondent No.2 had not received the payment of Rs.
25,000/, being the amount of the cheque. Thus, this evidence
establishes beyond reasonable doubt that there was absolutely no
confusion or doubt in the mind of respondent No.2 that the amount of
cheque No.656523 dated 23/02/1998 drawn on Jintur Urban CoOp.
Bank was of Rs.25,000/ only. I must say, at this stage, there is no
dispute about issuance of the cheque and it is nobody's case that there
were other cheques of the same date which were dishonoured. In fact,
there is also no doubt about the validity of the notice vide Exh.33 with
no challenge having been made to it on this count at any point. This
can be seen from the reply given by respondent No.2 to the notice vide
Exh.33. Even in the evidence of respondent No.2, no challenge to the
validity of the notice has been made on the ground that the notice
suffered from the vice of vagueness on account of non mentioning of
the amount of the cheque in a specific manner. All these facts would
together show that the parties had understood as to what was the
amount of the cheque and what was due from the drawer under the
cheque to its payee. As such, the learned Magistrate could not have
dismissed the complaint by holding, albeit wrongly, that the notice was
invalid.
10. While recording a wrong finding not based upon the
evidence, the learned Magistrate has misinterpreted the judgment of
the Hon'ble Apex Court rendered in the case of Suman Sethi (supra).
In this case the Hon'ble Apex Court has clearly held that it is well
settled principle of law that the notice has to be read as a whole and in
the notice, demand has to be made for “said amount” i.e. cheque
amount and if no such demand is made, it would have to be examined
if the notice is bad or not on this count by considering the language of
the notice. If, in the notice, a demand has been made not only for the
amount of the cheque but also for the interest and other charges, then
it would be necessary to bifurcate all these amounts by specifying as to
what is due under the cheque and what is due on other counts. But, if
no such bifurcation is made and an omnibus demand is made inclusive
the amount of the cheque as well as the amount due on account of
interest, damages and other charges, such notice would be invalid in
law. The learned Magistrate, confused himself in understanding the
law so laid down by the Hon'ble Apex Court and it appears that the
learned Magistrate was swayed away by some of the observations of
the Hon'ble Apex Court, which he reproduced in the impugned
judgment and order by picking them up half heartedly. Therefore, I
find it necessary to reproduce the relevant observations of the Hon'ble
Apex Court as appearing in paragraph8 of the said judgment in their
entirety and they read as under.:
“It is 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. cheque amount. If no
such demand is made the notice no doubt would fall
short of its legal requirement. Where in addition to
“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 giving up
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, notice might well fail
to meet the legal requirement and may be regarded as
bad.
11. The above referred observations make it clear that in every
case a notice can not be held to be bad only for failure to specify
therein the amount of the cheque and it would depend upon the
language of the notice to come to an appropriate conclusion in the
matter. I have already considered the evidence brought on record by
both the sides and found that this evidence sufficiently establishes the
fact that the notice was complete in all sense and specific demand was
made for payment of the “amount of the cheque” and that there being
no doubt or confusion or dispute about the amount of the cheque, the
notice conveyed what it ought to have and, therefore, valid in the eye
of law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 225 OF 2001
Kamal s/o Babulal Sharma
.. Versus ..
Ramkumar Sagarmal (HUF)
CORAM : S. B. SHUKRE, J.
DATED : 25th SEPT., 2014.
Citation: 2016 ALLMR(CRI)2652
