DEVIPRASAD RAI Vs. A.M. GANESH RAI

JUDGEMENT

(1.) HEARD the learned Counsels on either side.

(2.) THE Appellant before this Court is the complainant who launched prosecution against the Respondent herein for the offence punishable under Section 138 of Negotiable Instruments Act (in short, the "Act"), on the ground that the Respondent /accused issued a cheque dated 12.2.2001 for a sum of Rs. 60,000/ - payable by him drawn on Vijaya Bank, Kumbra Branch and the same was returned for insufficient funds on 23.2.2001. He filed a complaint and let in evidence as well. The defence taken up by the Respondent was to the effect that no notice was served on him with regard to the dishonour of the cheque and making a demand for the payment of Rs. 60,000/ -, the amount under the dishonoured cheque. The learned Judge, on perusal of the records, came to the conclusion that the signatures found at Exs. P.1 and P.7 alleged to be the signatures of accused are different and so also the complainant has failed to establish the fact that after intimation of dishonour of the cheque by the bank, he sent in writing or demanded for the payment by way of notice and the said notice was served on the accused. Therefore, the complaint came to be dismissed. Aggrieved by the same, the Appellant is before this Court.

(3.) AS against this, learned Counsel for the Respondent /accused submits that the mandatory requirement under Section 138 of N.I. Act is to make a demand to the amount under the dishonoured cheque after receiving the intimation from the bank regarding the dishonour, therefore, unless and until such demand is made on the Respondent / accused, the cause of action to file 138 proceedings would not enure to the benefit of the complainant. Even otherwise, the material brought on record through the cross -examination of PW -1 discloses that the signature on the postal acknowledgement and the signature on the dishonoured cheque Ex.P.1 belonging to the accused, as stated by the complainant, are different and the address at Ex.P.7 is altogether a different one. Therefore, there is no compliance of requirement of law on the part of the complainant in making a demand for the payment of amount under the dishonoured cheque in accordance with Section 138 of the Act. Therefore, the order of the learned Magistrate deserves to be confirmed.