1 APHC010441022011 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3560] FRIDAY,THE TWENTY EIGHTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 901/2011 Between: 1. PENUMARTHI ABBAI, S/O SATHIRAJU, PROPRIETOR SRI VIJAYA DURGA TRADERS, VETLAPALEM, SAMARLAKOTA MANDAL, E.G.DIST. ...PETITIONER AND 1. MADDALA VENKATA SATYANARAYANA THE STATE OF A P, S/O NARAYANA MURTHY, CULTIVATION R/O 4-6-80, KOLAVARI VEEDHI, SAMARLAKOTA MANDAL, E.G.DIST. 2. THE STATE OF ANDHRA PRADESH, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH, HYDERABAD. ...RESPONDENT(S): Revision filed under Section 397/401 of Cr.P.C., praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to allow the present Crl.R.C., by setting- aside the Judgment dated 07.04.2011 passed by the Court of the VII Addl. Sessions Judge, Kakinada, E.G.Dist., in Crl.A.No.165 of 2008 confirming the Judgment dated 15.05.2008 passed by the Court of the III Addl. Judl. First Class Magistrate, Kakinada, E.G.Dist., in C.C.No. 188 of 2006. 2 IA NO: 1 OF 2011(CRLRCMP 1347 OF 2011 Petition under Section 151 C.P.C praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the conviction and sentence imposed in the Judgment dated 07.04.2011 passed by the Court of the VII Addl. Sessions Judge, Kakinada, E.G.Dist., in Crl.A.No.165 of 2008 confirming the Judgment dated 15.05.2008 passed by the Court of the III Addl. Judl. First Class Magistrate, Kakinada, E.G.Dist., in C.C.No. 188 of 2006, and consequently enlarge the petitioner on bail. Counsel for the Petitioner: 1. P DURGA PRASAD Counsel for the Respondent(S): 1. SATYANARAYANA NIMMALA 2. PUBLIC PROSECUTOR The Court made the following: 3 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 901/2011 O R D E R: Being aggrieved by and dissatisfied with the finding by the learned Courts below in a proceeding under Section 138 of the Negotiable Instruments Act (for short N.I Act), against the petitioner, whereas the learned Courts below found the Petitioner guilty for the offence of dishonor of Cheque, the instant Criminal Revision Case has been preferred. 2. Learned Counsel for the petitioner has raised points of illegality of the Orders passed by the learned Courts Below as follows:- i. Mandatory notice under section 138 of the N.I Act was ot served on the Appellant. ii. The so-called demand notice does not reflect the specific term that the payment has to be paid within a period of 15 days. iii. A lump-sum amount was demanded which is over and above to the chque amount. 3. POINT No.1: On point No.1 learned Counsel for the petitioner submits that during Trial before jurisdictional Magistrate, the copy of legal notice was marked as Ex.P.5 and postal receipt was marked as Ex.P.6, but no track report was placed on record before the learned Magistrate, which can prove it was 4 received or served upon the Petitioner. He taken the ground that the demand notice was not at all served upon the petitioner. Learned Counsel for the Respondent No.1 raised an objection and submits that the issue has already been settled by the Trial Court, now the said issue cannot be re-adjudicated i. Having heard the learned Counsel for the parties, it appears that the present Petitioner being the accused person appeared before the learned Courts Below and never raised point that the demand notice was not served upon him. However, the demand notice was exhibited and postal receipt was also exhibited. During the course of Trial, the petitioner has not raised any objection regarding exhibiting those documents. At this juncture, this Revisional Court cannot enter into the finding or merits of the matter decided by the learned Courts below. Moreover, this issue was never raised before the learned Trial Court or before the learned Appellate Court. Hence, this issue cannot be raised at the first time in the Revisional Court. Accordingly, I find point No.1 raised by the learned Counsel for the Petitioner is not tenable in the eye of Law. 4. POINT No.2: Learned Counsel for the petitioner submits that the learned Trial Court as well as the learned Appellate Court has not decided the issue mentioning particular date of payment in the demand notice. He submits that the observation of the learned Trial Court as well as the learned Appellant Court is illegal. 5 i. Having heard the learned counsel for the parties, I perused the copy of demand notice placed through a separate memo before this court. It appears from the said demand notice that the demand notice directed the Petitioner to pay. It is the submission of the learned Counsel for the Petitioner that the payments in terms of the demand notice required specific direction for the payment to be made within 15 days. ii. The learned Trial Court has decided the issue in Point No.2. I have perused the decision of the learned Trial Court at paragraph No.14. A careful perusal of the said observation, it appears that the learned Trial Court has decided the issue in terms of the Statute under Section 138 of the N.I Act. I make it clear that the Provision under Section 138 of the N.I Act specifically, Proviso (b) directed the holder in due course of the Cheque to make a demand for payment within 30 days from the date of receipt of return slip from the bank. Such 2nd proviso not specifically directed the Holder of the Cheque in the due course to make a demand by mentioning that it has to be made within 15 days. Rather, the Proviso (c) of Section 138 of N.I Act has provided a mandatory direction upon the drawer of the Cheque to fulfill the payment within 15 days from the date of receipt of the said notice. So, it is obligatory upon the Drawer of the Cheque to make payment within 15 days from the date of receipt of demand notice, but not obligatory upon the Payee to make demand by mentioning a particular date of the payment. On considering the same, also considering the 6 observations and findings of the Trial Court as well as the Appellate Court, it appears that the learned Trial Court as well as the learned Appellate Court has correctly decided the issue. Accordingly, I find point No.2 raised by the learned Counsel for the Petitioner is not tenable in the eye of Law. 5. POINT NO.3: In deciding the Point No.3, it has been argued by the learned Counsel for the Petitioner that through the demand notice, the Respondent No.1 has demanded a huge sum/amount of Rs.3,00,000/- (Rupees three lakhs) from the Petitioner, the Cheque amount is admittedly Rs.1,00,000/- (Rupees one lakhs). Such type of huge payment through a demand notice having statutory validity under sSction 138 of the N.I Act is not maintainable as per the direction of the Hon’ble Apex Court. i. Learned Counsel for the Petitioner has relied a decision of the Hon’ble Supreme Court of India in Upasana Mishra - Appellant V. Trek Technology India Pvt. Ltd. – Respondent, decided on 12.12.2023 reported in 2023 Supreme (SC) 1286. I have perused the direction of the Hon’ble Supreme Court in Upasana Mishra supra. In the cited case, the content of the demand notice is as follows:- “7. The last paragraph in Annexure-P2 notice carries the demand and we will refer to the demand made thereunder. It read, thus: “9. ............................................... ......................................................... 7 I, therefore through this legal notice call upon you to make the party of the doubt amount of the cheque i.e. Rs.6,50,000/- (Rs. Six Lakh Fifty Thousand Only) with interest @12% per annum since 12.11.2013 and further pay the damaged at Rs.50,000/- (Rs. Fifty Thousand Only) per month within stipulated period from the receipt of this notice failing which I have clear instructions from my aforesaid clients to take legal action against you in the competent courts, holding you responsible for entire cost and consequences with litigation charges of Rs.5,500/- (Rs. Five Thousand Five Hundred Only) as charges of this notice. ii. The Hon’ble Apex Court has followed earlier decision of the Supreme Court in Suman Sethi wherein the principal as enumerated at paragraph No.5 of the same Judgment – “5. The relevant paragraph of the decision in Suman Sethi’s case (supra) is extracted for a proper disposal of this case: “8. 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 the 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 he severable- and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonored cheque, notice might well fail to meet the legal requirement and may be regarded as bad. 9. This Court had occasion to deal with Section 138 of the Act in Central Bank of India & Anr. v. M/s. Saxons Farms & Ors., JT (1999) 8 SC 58 and held that the object of the notice is to give a chance to the drawer of the cheque to rectify his omission. Though in the notice demand for compensation, interest, cost etc. is also made drawer will be absolved from his liability under Section if he makes the payment of the amount covered by the cheque of which he was aware within 15 days from the date of receipt of the notice or before complaint is filed. 8 As therein, some other sums were indicated in addition to the amount of cheque, it was, therefore, not held to be a case where the dispute might be existing in respect of the entire outstanding amount.” iii. Considering the entire issue, the Hon’ble Supreme Court has decided the demand notice in the cited case is invalid. In terms of the law declared by the Supreme Court in Suman Sethi case, for proper adjudication of the issue in dispute, it is necessary to set out the portion of the demand notice of this case. “1. You had borrowed a sum of Rs.3,00,000/- (Rupees Three Lakhs only) from our client on 19.02.2005 for your business investment needs, at an interest rate of Rs.1.50 per Rs.100 per month. On the same date, you executed and handed over a Demand Promissory Note in favour of our client. On 17.11.2005, towards part payment, you gave our client a cheque for Rs.1,00,000/- (Rupees One Lakh only) in his favour. The Cheque No.985608 bearing Account No.016600200012, drawn on State Bank of India, Vetlapalem stated to be valid for clearing. You instructed our client to deposit it in the bank in the first week of December. However, when our client presented the said cheque at Bank of India, Samalkota on 05.12.2005, he was informed by the bank that on 17.12.2005, along with a memo provided by them, that the cheque was dishonoured on 08.12.2005. 2. Therefore, you are hereby notified that immediately upon receipt of this notice, you must pay our client the amount of the bounced cheque, the total principal amount, along with the accrued interest, and obtain an endorsement of payment on the reverse of the Promissory Note and take back the said Note and the cheque”. iv. A plain perusal of the demand notice of this case, it appears that the Respondent No.1 has made a statement through his learned Advocate in the demand notice that the petitioner has borrowed a sum of Rs.3,00,000/- (Rupees three lakh) by executing a promissory note as well as impugned cheque. When the cheque was placed before the Banker and when it was returned as referred 9 by the banker in counter-foil memo that it was dishonoured. At the last paragraph Respondent No.1 has made a demand regarding the amount of bounced cheque and the total principal amount along with accrued interest. v. The statutory direction for issuance of demand notice as enumerated under Proviso (b) of Section 138 of the N.I Act required to be set out for proper appreciation. “Sec:138(b) - the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid”. A plain perusal of the said statutory direction upon the Holder of the Cheque is that, he must make a demand within 30 days from the date of receipt of information from the Bank regarding dishonor of Cheque to the Drawer of the Cheque that his cheque was dishonoured. So, it is the basic rule of notice that a notice must have demonstrate specific knowledge regarding how the demand has been made. In the cited case Upasana Mishra (supra), on perusal of the notice therein, it appears that there was a demand of Rs.6,50,000/-. The demand was also made for interest at 12% per annum and also demand was made for another Rs.50,000/- for damages and also Rs.5,500/- as a charges of the notice. The Hon’ble Supreme Court in deciding the issue has followed the ratio of Suman Sethi’s case supra. In Suman Sethi case the Hon’ble Apex Court has decided the Law that “if in a notice while giving break-up of the 10 claim of the Cheque amount, interest, damages etc., are separately specified, other such claims for interest, cost etc., would be superfluous and those additional claims would be severable and will not invalidate the notice”. This being the ratio of Suman Sethi’s (Supra), it appears from the demand notice that the Cheque amount of Rs.1,00,000/- (Rupees one lakh) was specifically mentioned in the demand notice, when the Cheque was placed before the banker and when it was returned for dishonour of Cheque, the other demands regarding promissory note amount, interest and damages are severable in nature. Thus, in following the said principle of Summan Sethi’s case (supra), in my view the demand made by the Respondent No.1 through demand notice being Ex.P.5 are quite clear and severable to the other amounts and the Cheque amount. Thus, the point raised by the learned Counsel for the Petitioner appears to me not justifiable in terms of the ratio laid by the Hon’ble Supreme Court. I find no justification to entertain the Criminal Revision Case. Accordingly, I find point No.3 raised by the learned Counsel for the Petitioner is not tenable in the eye of Law. 6. Under the above observation, the instant Criminal Revision Case is disposed of as devoid of merits. The Order of suspension of sentence, if any, passed by this court during the pendency of this Criminal Revision Case is hereby vacated. The Petitioner is directed to serve out the remaining portion of the sentence before the learned Trial Court within (3) three weeks from the date 11 of passing of this Order, failing which, the learned Trial Court shall take appropriate steps to comply the order. Accordingly, miscellaneous applications, if any, shall stand closed. ___________________________ JUSTICE SUBHENDU SAMANTA Dated 28.11.2025 KS1 12 434 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 901/2011 DATED:28.11.2025. W KS1