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Judgment
T.P. Sharma, J.—By this criminal revision applicant has challenged the legality and propriety of the judgment dated 29-9-2008 passed by the Additional Sessions Judge (FTC) Dhamtari, in Criminal Appeal No. 33/2007 affirming the judgment of conviction of applicant u/s 138 of the Negotiable Instrument Act, 1881 (in short "the Act of 1881") and setting aside the sentence of imprisonment of 3 months by maintaining the sentence of fine of Rs. 10,000/- by Judicial Magistrate First Class, Dhamtari vide judgment dated 5-12-2007 in Criminal Case No. 264/06.
Judgment is impugned on the ground that both the Courts below has not considered the question of law involved in the present case is that the applicant have been convicted and sentenced for the offence which he has not committed.
Brief facts necessary for disposal of this criminal revision as per complaint of the respondent present applicant has issued cheque No. 053208 on 4-5-01 in discharge of liability of Rs. 75,000/- in favour of the respondent same was presented before Bank which was dishonoured the cheque then applicant was served with the notice relating to cheque No. 053208. On failing to make the payment so demanded, the respondent has filed the complaint u/s 138 of the Act of 1881.
After affording an opportunity of hearing the parties learned Judicial Magistrate First Class, Dhamtari has convicted and sentenced the applicant. Applicant has preferred an appeal before the Additional Sessions Judge, Dhamtari. Additional Sessions Judge, Dhamtari has affirmed the conviction but modified the sentence awarded to applicant. Both the Courts below have arrived at finding that applicant has issued the cheque No. 055208 but as a mistake the number of the cheque has been mentioned in complaint and notice as 053208.
Learned Counsel for the parties are heard.
Judgment impugned and record of the Court below perused.
Learned Counsel for the applicant vehemently argued that applicant was under obligation to discharge the liability incurred cheque No. 055208 and not in the cheque No. 053208. Respondent has served the notice to the applicant for discharge of liability incurred in relation to the cheque No. 053208. Respondent has also filed the complaint in relation to cheque No. 053208 but has filed cheque No. 055208 which was dishonoured by the Bank. Therefore,, in absence of any notice on demand in terms of u/s 138 of the Act of 1881 relating to cheque No. 055208 present applicant is not liable for commission of any offence punishable u/s 138 of the Act of 1881.
Learned Counsel for the applicant placed reliance in the matter of Kumar Exports Vs. Sharma Carpets, , in which Apex Court has held that complainant is required to prove the fact that cheque was issued in discharge of debt or liability but if complainant himself made declaration to the Sales Tax Department that no sale had taken place then same would be sufficient displacement of the presumption.
Learned Counsel for the applicant further placed reliance in the matter of K.R. Indira Vs. Dr. G. Adinarayana, , in which Apex Court has held that in case of difference between the cheque amount and loan amounts the notice is not valid notice interims of Section 138 of the Act of 1881.
Learned Counsel for the applicant also placed reliance in the matter of Suman Sethi Vs. Ajay K. Churiwal and Another, , in which Apex Court has held that complainant is required to make specific term of the notice and notice has to be read as a whole.
On the other hand, learned Counsel for the respondent vehemently opposed the criminal revision and submits that only on the ground of clerical mistake applicant is not entitled for acquittal. In the present case, only one cheque has been issued by the applicant but by mistake erroneously wrong number has been mentioned in the complaint and notice.
In order to appreciate the argument advanced on behalf of the parties, I have examined oral and documentary evidence of the parties. In the present case, cheque No. 053208 has been mentioned in a notice (Exh. P-5) and complaint made by the respondent but no such cheque was produced by the respondent. Respondent had produced the cheque No. 055208 as Exh. P-2 bearing the signature of the applicant. Respondent has specifically deposed in his evidence that applicant has issued the cheque (Exh. P-2) in his favour. He has admitted in Para 3 of his cross-examination that he has mentioned the cheque No. 053208 in his complaint and notice but he has not filed or produced such cheque in his evidence. Accused/applicant was examined u/s 313 of the Code of criminal Procedure, 1973, in which while answering the question No. 5 applicant has specifically answered that he has issued the cheque No. 053208, which has been mentioned by the respondent in his complaint. Question No. 5 and answer given by the applicant reads as follows:
iz''u 5& bl lk{kh dk dguk gS fd mDr pSd izn''khZ ih&2 rFkk QksVks izfr izn''kZ ih&2 �lh� gS A vkidk D;k dguk gS \\
mRrj& eSaus ifjoknh dks 053208 pSd �ekad esa gh fn;k Fkk tks ifjokn i= esa fy[kk gSA
While answering the question Nos. 9 and 11 applicant has specifically replied that wrong cheque number was mentioned in the notice, therefore, he is not liable the notice. Question Nos. 9 and 11 with its answer reads as follows:
iz''u 9& blh lk{kh dk dguk gS fd mlus vkidks jde dh vnk;xh uksfVl fHktok;k Fkk tks izn''kZ ih&5 dkcZu izfr gS A vkidk D;k dguk gS\\
mRrj& uksfVl esa pSd �- xyr fy[kk Fkk bl dkj.k tokc ugha fn;k x;kA
iz''u 11& blh lk{kh dk dguk gS fd uksfVl izkfIr ds mijkar Hkh vkids }kjk iSlk vnk ugha fd;k x;k A vkidk D;k dguk gS \\
mRrj& pSd dk uacj xyr Fkk bl dkj.k uksfVl ds tokc ugh fn;kA
As held in case of Kumar Exports v. Sharma Carpets (supra), that complainant is required to prove the fact that the cheque was issued in discharge of debt or liability and such presumption may be displaced. By adducing evidence in the present case, only number of cheque is different specially relating to one figure instead of second figure 5, figure 3 has been mentioned in the notice and the complaint. The case of Kumar Exports v. Sharma Carpets (supra), is distinguishable on the grounds of facts.
In case of K.R. Indira v. Dr. G. Adinarayana (supra), there was difference of amount of cheque and amount of loan/liability but in the present case amount of cheque and amount of liability was one and same except the difference in one figure of the cheque.
As held in case of Suman Sethi v. Ajay K. Churiwal and Anr. (supra), the notice is required to read as a whole. Para 8 reads as follows:
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 additional 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 as 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.
By reading the notice as a whole it is clearly established that applicant has issued the cheque of Rs. 75,000/- on 4-5-01 and respondent has demanded the aforesaid amount along with cost. Only question involved in the case is whether, mentioning in-correct number of cheque in the complaint and notice would vitiated the trial.
In the present case, as per evidence of the respondent, during the period of transaction only one cheque was issued by the applicant in the name of the respondent of the amount of Rs. 75,000/- which was dishonoured by the bank although applicant has admitted while replying the question No. 5 in his examination that he has issued the cheque No. 053208 but in reply of questions Nos. 9 and 11 he has specifically made it clear that on the ground of wrong cheque number was mentioned in notice he has not sent the reply to the complainant, it shows that applicant was having knowledge of the right number of the cheque but he has not replied the notice on the ground that right number of cheque was not mentioned in the notice if the notice is read as a whole then it would be sufficient for drawing an inference that only one cheque of Rs. 75,000/-was issued by the applicant in favour of the respondent. Complainant/respondent has specifically deposed in his evidence that cheque (Exh. P-2) has been issued by the applicant to him which was presented and dishonoured by the bank. In the case of Negotiable Instruments Act notice is required to read as a whole and if the complainant is unable to specify that accused has issued the cheque which has been dishonoured then only on the ground of any arithmetic and clerical mistake in mentioning the cheque number specially one figure the criminal proceeding cannot be vitiated.
After appreciating the evidence available on record Court below has maintained the conviction and modified the sentence. Only on the ground of clerical mistake of the number one figure 5 of the cheque. The claim of the respondent cannot be thrown away specifically when the facts was well within the knowledge of the applicant, Court below has rightly maintained the conviction of the applicant. Court below has neither exceeded the jurisdiction vested on it nor failed to exercise the jurisdiction vested on it. Consequently, this criminal revision is liable to be dismissed and is hereby dismissed.