Dismissed

Smt Divya Bisht v. State of Up and Another

Allahabad HC22 Oct 2024A482/21273/2024

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C., the Court examined the validity of a demand notice and the initiation of proceedings based on the second dishonour of a cheque. The court held the notice valid as it specified the cheque amount and dismissed the quash application, rejecting the applicant's contentions regarding liability and time bar.

What did the court decide?

Application to quash under Section 482 Cr.P.C. rejected; proceedings continue.

Smt Divya Bisht vs State of Up and Another — Cheque Dishonour | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:167840

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Court No. - 79

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Case :- APPLICATION U/S 482 No. - 21273 of 2024

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Applicant :- Smt Divya Bisht Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhishek Tiwari Counsel for Opposite Party :- G.A.

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Hon'ble Arun Kumar Singh Deshwal,J.

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Heard Sri Bhuvnesh Kumar Singh, learned counsel holding brief of Sri Abhishek Tiwari, learned counsel for the applicant and Sri Padmakar Rai, learned AGA for the State.

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The present 482 Cr.P.C. application has been filed to quash the entire proceedings of Complaint Case No.508 of 2023 (Old No.3931 of 2021) (Deepak Singh Vs. Divya Bisht), under Section-138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act, 1881'), Police StationSector 24 Noida, District-Gautam Buddh Nagar, pending in the court of Additional Judge-II, Gautam Buddh Nagar as well as summoning order dated 11.09.2022.

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Contention of learned counsel for the applicant is that cheque in question was not issued in discharge of any liability as the same was given by the husband of the applicant though alleged to be signed by the applicant and applicant also disputes her signature. Second contention of learned counsel for the applicant is that the first notice after bouncing of cheque was given on 16.08.2021. Thereafter, cheques in question were again presented before the bank and on bouncing of the same, second notice was issued on 02.11.2021. Therefore, cause of action has already been arisen on the basis of earlier notice dated 16.08.2021.

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Therefore, complaint is time barred. Third contention of learned counsel for the applicant is that the demand notice itself is vague and no specific demand of cheque amount has been made but a composite demand of Rs.9,00,000/which includes the demand of cheque amount was made. Therefore, notice itself is defective. In support of his contention, learned counsel for the applicant has relied upon the judgement of the Apex Court in the case of Prem Chand Vijay Kumar Vs. Yashpal Singh & Another in Criminal Appeal No.651 of 2005.

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Per contra , learned AGA has submitted that admittedly, the cheque was issued in discharge of liability by the husband of the applicant and it is not necessary that the cheque should be issued in discharge of liability of the drawer himself. It is also submitted by learned AGA that cheque can be presented multiple times during its validity and the prosecution can be initiated on the basis of last demand notice. Lastly, it has been submitted by learned AGA that there is no defect in the demand notice which very clearly states the demand of cheque amount.

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After hearing rival contention of the parties and on perusal of record, it appears that Rs.9,00,000/- was paid to the husband of applicant through online transaction. Thereafter, two cheques of Rs.7,00,000/- allegedly signed by the applicant were handed over to the complainant. When on presentation of two cheques of Rs.7,00,000/- (including the present cheque of Rs.4,00,000/-), same were returned by the bank then the first notice was given to the applicant on 16.08.2021 by the complainant. When the money was not paid despite receiving the notice dated 16.08.2021 then on

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the request of applicant, cheques were again presented before the bank but same were returned by the bank with the endorsement 'payment stop' as well as 'account closed'. Thereafter, second demand notice was sent to the applicant on 02.11.2021. Thereafter, after expiry of period of 15 days from the date of service of notice, impugned complaint was filed. It is also clear from the demand notice dated 02.11.2021 that there was a composite demand of cheque amount of Rs.7,00,000/- which includes amount of Rs.4,00,000/- of the cheque in question plus remaining Rs.2,00,000/-. It had specifically mentioned the cheque number of the impugned cheque of Rs.4,00,000/- including the date of dishonouring the same. Therefore demand was not vague in notice. This issue was also considered by the Apex Court in the case of Upasana Mishra Vs. Trek Technology India Pvt. Ltd. in SLP (Criminal) No.9062 of 2023 . Paragraph no.6 of Upasana Mishra's case (supra) is being quoted as under:

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"6. A bare perusal of the decision referred (supra) would reveal that a demand in addition to the cheque amount in a demand notice by itself would not make it invalid. In other words, as held therein, in the demand notice, demand has to be made for the ‘cheque amount’ and therefore, notice sans such demand would fall short of legal requirement. At the same time, we will reiterate the position that if in a notice while giving the break up of the claim the cheque amount interest, damages, etc. are separately specified and these additional claims would be severable, such demand would not invalidate the notice. In short, in a notice of demand made under the N.I. Act demand shall not be omnibus, there must be a clear demand for the cheque amount lest notice will be invalid. This law laid down as above has to be applied to decide the validity or otherwise of Annexure P-2 demand notice."

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The above facts show that the cheque in question was issued in discharge of liability towards the husband of the applicant and same is permissible u/s 138 of the Act, 1881. So far as contention of learned counsel for the applicant that

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prosecution was initiated on the basis of the second demand notice is also misconceived because as per judgement of the Apex Court in the case of MSR Leathers Vs. S. Palaniappan And Another reported in 2013 (1) SCC 177, a cheque can be presented multiple times and if multiple cause of action arises each time then prosecution based upon second or successive dishonour of the cheque is permissible as long as it satisfies all the requirements stipulated in the proviso to Section 138 of the Act, 1881.

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In view of the above, this court does not find any illegality in the impugned proceeding.

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Accordingly, the present application is rejected .

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Order Date :- 22.10.2024 S.Chaurasia

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Digitally signed by :- SHUBHAM CHAURASIA High Court of Judicature at Allahabad

Smt Divya Bisht v. State of Up and Another

Case brief

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Smt Divya Bisht v. State of Up and Another

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