Ajay Kumar Churiwal v. Suman Sethi & Ors.

S.K Tiwari, J.:—This revisional petition is directed against the order dated 1st April, 1997, passed by the Ld. Metropolitan Magistrate 16th Court, Calcutta in case no. C1661 of 1196.

2. The petitioner filed a complaint against the opposite party No. 1 under section 138 of the Negotiable Instruments Act. Opposite party No. 1 appeared before the Ld. Magistrate and filed a copy of the notice sent to him after bouncing of the cheque. Opposite party No. 1 contended that the said notice not only demanded the payment of Rs. 20 lacs covered by the bounced cheques but also the incidental charges to the tune of Rs. 1500/- plus notice charges. Hence the notice was bad in law and the complaint under section 138 of the N.I Act was not competent.

3. The Ld. Trial court placed reliance on the case of Gopa Debi Ojha v. Surjit Paul & Anr. (1995) (II) CHN 37 and come to a finding that since the notice also included an amount in excess of the amount covered by the cheque it was bad in law.

4. In the case on which reliance was placed, the demand notice was held to be bad because a lump sum amount was demanded after including interest and other expenses by the complainant and this court held that since the amount covered by the cheque and the one demanded by a notice under section 138 N.I Act and was at variance, a complaint cannot be based on the basis of such invalid notice.

5. It is well settled principle of law that a notice must be construed ut res magis valeat quam pareat (that an act may avail rather than perish) (see Bengal Electric Lamps Works limited v. S.C Sinha AIR 1983 Cal 389). It has also been laid down by the Privy Council, while dealing with the question of validity of notice served under section 106 of the Transfer of Property Act, that notices to quit though not strictly accurate or consistent in the statement embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances.

6. Since the notice, in the case relied on by the Ld. Trial Court, did not specifically spell out as to what was the amount covered by the cheque which the accused was required to remit, it was held bad but in the present case the petitioner's notice clearly spell out the actual amount covered by cheque. The petitioner knew as to what was the principal amount which he was required to remit. The purpose of the notice is to intimate the drawer of the cheque about requiring him to remit the amount. These two purposes were very well served by this notice. If any extra amount is claimed in the notice that would not vitiate the notice.

7. The Ld. Counsel for the appellant has placed reliance in the case of Sk. Abdur Rahim v. Amal Kr. Banerjee (Cal. Cri LR (Cal.) 1993 225) and has urged that in case of difference of opinion, the judicial decorum requires that the matter should be placed before a larger Bench. Since the facts of the case relied on by the trial court are clearly distinguishable, the question of referring the matter to a larger Bench does not arise. The petition is, therefore, allowed. The impugned order is set aside and the matter is remanded back to the trial court for disposal according to law. The record be sent down through special messenger at the cost of the petitioner caused to be paid within three days.

Revisional Application allowed.

T.D.N