KAPIL AGGARWAL Vs. RAGHU VIAS

JUDGEMENT

(1.) Raghu Vias, who is the respondent in this petition, has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') against the petitioner herein. It is alleged in the complaint that the cheques given by the petitioner to the respondent has been dishonoured and even when the payment was not made after the notice of demand was served upon the petitioner, the complaint was filed. It is not necessary to go into the reasons which led to the petitioner issuing the cheque and the dishonour of the said cheque. What is to be stated is that summoning order has been passed and this has been challenged by the petitioner, who is accused in the said proceedings, on a very short ground, namely, the notice of demand which was served upon the petitioner by the respondent before filing the complaint is not in accordance with law.

(2.) The only thing which is to be noted in this behalf is that, according to the respondent, as per the averments made in the complaint by him, the petitioner had approached the respondent and asked for some loan amount pursuant whereto the respondent had advanced to the petitioner, being a good friend, a sum of Rs. 35,000. With the intention to pay this amount, two cheques in the sum of Rs. 5,000 and Rs. 10,000 respectively were given by the petitioner to the complainant with an assurance that the balance amount of Rs. 20,000 shall also be paid before 8.10.2003. The two cheques on presentation were dishonoured. The notice, which was sent by the respondent to the petitioner on dishonour of these cheques, stated about the fact that the cheques had been bounced back. However, in this notice, the demand which was made was to call upon the petitioner to make payment of Rs. 30,000 of the loan amount with interest @ 24% per annum. The demand is in the following language:

(3.) The neat submission made by learned Counsel for the petitioner, on the basis of which he is seeking quashing of the summoning order, is that when the two cheques were for a total sum of Rs. 15,000, making a demand in the sum of Rs. 30,000 was not proper inasmuch as demand has to be in terms of the dishonoured cheques. Therefore, such a demand is not in accordance with the provisions of Section 138 of the Act and the complaint filed on the basis of such demand is not a valid demand.