MAYFAIR KNITTING INDUSTRIES LIMITED Vs. G P VIJAYAKUMAR

JUDGEMENT

(1.) The petitioner is the complainant in C.C.No. 3068 of 1997 on the file on XIII Metropolitan Magistrate, Egmore, Chennai, and he initiated the proceedings against the respondent/accused by way of a private complaint for an offence punishable under Section 138 of the 'Negotiable Instruments Act' (hereinafter called 'the Act') on an allegation that the cheque issued by the respondent, when presented with the bankers, was returned unpaid on account of insufficiency of funds and that, the notice sent subsequently also did not evoke any response. The respondent appeared before the learned Magistrate and after the examination of one witness, filed a petition for discharge stating that the petitioner has not issued any statutory notice to the drawer of the cheque and that the notice dt. 28-1-1997 is not in conformity with the provisions of Clause (b) of Section 138 of the Act. There was also another contention that the company, to whom the cheque was issued, wars no longer in existence. The learned Magistrate accepted both the contentions and discharged the respondent. Hence, the present revision.

(2.) The learned Counsel appearing for the petitioner, even at the outset, states that he does not support the view of the learned Magistrate that the company, to whom the cheque was issued, is no longer in existence and hence, there can be no prosecution. The learned Counsel for the petitioner, submits that the learned Magistrate has committed an error in holding that there was no notice to the drawer, since the petitioner has issued a notice on 28-1-1997. He drew my attention to the said notice, which is filed in the typed-set of documents along with the revision. A perusal of the said notice indicates that it is addressed to M/s. Rainbow Creations. B-9, Brownstone Apartments, Mahalingapuram, Madras-600034, and the contents are as follows:-

(3.) A perusal of the above notice clearly indicates that the notice was not actually issued to the drawer of the cheque, but was issued to M/s. Rainbow Creations, on whose behalf, according to the petitioner, the cheque was drawn by G.P. Vijayakumar, Clause (b) ot Section 138 of the Act states that nothing in Section 138 of the Act will apply unless the payee or the holder of the cheque in due course, 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 fifteen days of the receipt of information by him from the. bank regarding the return of the cheques as unpaid.