PIJUSH KANTI DASGUPTA Vs. STATE OF W B

JUDGEMENT

(1.) Both the criminal revisions are taken up together for the sake of convenience and again as those are directed against the same order impugned. By order dated 20.09.2004 the learned Judicial Magistrate, 3rd Court, Alipore passed an order in connection with Complaint Case No. C-4415 of 2003 under section 138 of the Negotiable Instruments Act. The maintainability of that petition was challenged by the accused before the learned Magistrate and after hearing both the parties the learned Magistrate was pleased to reject the question of maintainability raised by the accused before him. The question agitated before the learned Magistrate was that the complainant had issued two notices dated 27.06.2003 and thereafter dated 21.07.2003.

(2.) Mr. Krishnendu Bhattacharjee, the learned Advocate appearing for the petitioner has submitted that where two notices are issued and the case is filed on the basis of the second notice, the second notice is bad in law and in this connection he has referred to the ratio decided in the case of Sadanandan Bhadran vs. Madhavan Sunil Kumar, 1998 SCC (Cri) 1471. It was decided in the case that in a generic and wide sense "cause of action" means every fact which is necessary to establish to support a right or obtain a judgment. Viewed in that context, the following facts are required to be proved to successfully prosecute the drawer for an offence under section 138 of the Act: (a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured; (b) that the cheque was presented within the prescribed period; (c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period ; and (d) that the drawer failed to make the payment within 15 days of the receipt of the notice.

(3.) Mr. Dipankar Dhar, the learned Advocate appearing with Ms. Swati Bhattacharjee, the learned Advocate has submitted before me thai he also relies on the judgment passed in the case of S. Bhadran (supra) and he has drawn my attention to paragraph 9 of the said judgment which reads as under :