C.Y. Somayajulu, J.
1. The first respondent filed C. C. No. 201 of 2002 on the file of the Additional Judicial First Class Magistrate, Addanki, under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'), against the petitioner in connection with the dishonour of a cheque for Rs. 97,000 allegedly issued by him (petitioner).
2. The petitioner filed Crl. M. P. No. 1612 of 2003 seeking an order of discharge mainly on the ground that there is a variation in the number of the cheque mentioned in the notice of dishonour with demand for payment and the complaint, and the cheque filed into court. The learned magistrate, by the order under revision, dismissed the said petition. Hence, this revision.
3. The main contention of learned counsel for the petitioner is that since the offence under Section 138 of the Act is a technical offence, a complainant who does not strictly comply with the mandatory requirements of the statute cannot take shelter under a typographical error and since the number of the cheque dishonoured is mentioned in the notice as 762870, and since the number of the dishonoured cheque is mentioned in para. 2 of complaint as 762570, and since the cheque filed into court does not bear either No, 762870 or 762570 the complaint against the petitioner is liable to be quashed. He placed strong reliance on Yankay Drugs and Pharmaceuticals Ltd. v. Citi Bank [2001] 106 Comp Cas 662 ; [2001] 1 ALT (Crl.) 411 (AP) in support of his contention that the plea of a complainant relating to typographical error cannot be accepted in proceedings under Section 138 of the Act.
4. Yankay Drugs and Pharmaceuticals Ltd.'s has no application to the facts of this case. In that case, the cheque issued for Rs. 9,972 was dishonoured. In the statutory notice of dishonour the cheque amount was mentioned as Rs. 3,871. After the complaint filed by the payee of the dishonoured cheque was taken on file, the drawer of the cheque filed a petition under Section 482 of the Criminal Procedure Code to quash the complaint on the ground that the amount mentioned in the notice of dishonour is not correct. The case of the complainant in that case was that the amount mentioned in the notice was a typographical error. The learned judge relying on H.L. Agarwal v. Rakesh Agarwal [1997] 89 Comp Cas 531 ; [1997] 1 ALT (CrI.) 678 (AP) and Suman Sethi v. Ajay K. Churiwal [2000] 100 Comp Cas 444 ; [2000] 1 ALT (Crl.) 181 (SC) held that since giving notice and demanding payment of the amount covered by the dishonoured cheque is the essential ingredient of the offence under Section 138 of the Act and since the amount mentioned in the statutory notice does not tally with the amount for which the dishonoured cheque was issued, the complaint is liable to be quashed.
5. Here, I feel it relevant to extract Section 138 of the Act. It reads :
'Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability is returned by the bank unpaid, either because of the amount of money standing to the credit of that account, is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier ;
(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 notice, in writing to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid ; and
(c) the drawer of such cheque fails to make payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within 15 days of the receipt of the said notice.
Explanation.--For the purpose of this section, 'debt or other liability' means a legally enforceable debt or other liability.'
6. From Clause (b) to the proviso extracted above, it is seen that that section mandates the payee or the holder in due course of the cheque making a demand for payment of the 'said amount of money' by giving of notice in writing to the drawer of the cheque. So, the sine qua non for establishing an offence under Section 138 of the Act is the payee or the holder of the dishonoured cheque issuing notice demanding payment of the amount of money covered by the dishonoured cheque. For holding so, the learned judge relied on Suman Seth's case [2000] 100 Comp Cas 444 ; [2000] 1 ALT (Crl.) 181 (SC) where it is held that in order to constitute an offence under Section 138 of the Act the demand in the statutory notice has to be 'for the amount covered by the cheque' and if no such demand is made the notice would fall short of the legal requirement. In this case, it is not the contention of the petitioner that the statutory notice is not for the amount covered by the dishonoured cheque. It is his contention that the number of the cheque mentioned in the notice is different from the number of the cheque that is filed along with the complaint.
7. In my considered opinion, the number on the cheque has no relevance in a proceeding under Section 138 of the Act. Section 6 of the Act defines 'cheque' as :
'a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.' 'Bill of exchange' is defined in Section 5 of the Act as :
'an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument.'
8. Neither Section 5 nor Section 6 of the Act state that the cheque or bill of exchange, to be valid, should bear a number. The contention of learned counsel for the petitioner is that all the cheques issued by all the banks will have numbers and if a cheque issued by any bank does not bear a number the bank would not honour it. The question whether banks would honour cheques without numbers or not, is not the point for decision. The point for decision is whether the cheque number should be mentioned in the statutory notice of dishonour and demand for payment, issued prior to institution a complaint under Section 138 of the Act, and if mentioning of a wrong number of the cheque vitiates the prosecution. It should be kept in view that a section has to, and can be, interpreted in one way only. Two different interpretations cannot be given depending on who wants to take advantage of the wording used in the section. If the section has to be constructed strictly, depending on the words used therein, it has to be done so whether it is the prosecution or the accused that would have the advantage of the words used in the section. So no words can either be added or deleted while interpreting the section. There is nothing in Section 138 of the Act to show that the number of the dishonoured cheque also should be mentioned either in the statutory notice, or in the complaint.
9. Learned counsel for the petitioner contending that inasmuch as the word 'cheque' is used in Clause (b) of the proviso to Section 138 of the Act in cases where two cheques are issued and one cheque is dishonoured and the other is honoured, for the drawer to know which is the cheque that was dishonoured the number of the dishonoured cheque ought to be mentioned in the statutory notice and the complaint. This is but a hypothetical and farfetched argument. A drawer of a cheque is supposed to know the balance standing to the credit of his account and is supposed to issue cheques for the amount standing to the credit of his account. Obviously, with a view to give an opportunity and time to the drawer of the cheque, Section 138 of the Act contemplates issuing a notice to the drawer of the cheque, by intimating the drawer of the factum of dishonour and making a demand for payment of the amount covered by the dishonoured cheque. The drawer of several cheques, therefore, should know, which out of the several cheques issued by him was dishonoured and which cheques were honoured. When Section 138 of the Act contemplates only the amount covered by the dishonoured cheque, but not its number, being mentioned in the notice contemplated by that section, it is not necessary for the drawer to mention the number of the cheque, for the drawer to comply With the demand made in the notice, because the drawer shall have 15 days' time to comply with the demand made and the drawer can easily find out from his bank, within that time, which out of the several cheques issued by him was dishonoured. In fact the number on the dishonoured cheque is of no relevance for the drawer to pay the amount covered by such dishonoured cheque. Therefore, mentioning of the number of the dishonoured cheque is wholly unnecessary and irrelevant in a proceeding under Section 138 of the Act. In view thereof the fact that there is a variation in the number of the cheque mentioned in the notice of dishonour and in the body of the complaint and the cheque that is filed into court is of no sequence when in the notice of demand the amount covered by the dishonoured cheque is correctly mentioned. So, merely on the ground that wrong number of the dishonoured cheque is mentioned in the notice under Section 138 of the Act and the complaint, the complaint cannot be quashed.
Hence, the revision is dismissed.