This Criminal Appeal is filed against the judgment, dated 21-03-2006, passed by the II Additional Chief Metropolitan Magistrate, Visakhapatnam in C.C.No.162 of 1999.

2. The said judgment is against the acquittal and the complainant preferred the present appeal.

3. I have heard Sri G.Rama Gopal, learned counsel appearing for the appellant and Sri Satyanarayana Nimmagadda, learned counsel appearing for R-1 to R-3.

4. Brief facts relevant for considering the appeal may be stated as follows:

The appellant-complainant is a company, manufacturing cement in Autonagar, Visakhapatnam. Respondents 2 to 4 are the partners of the 1st respondent firm, which is said to be super stockist. Thereby there were some business transactions between the appellant and the respondent from 11-03-1996 to 31-03-1996. According to the appellant, the respondents owed a sum of Rs.22,08,522/- by the end of March, 1998 towards the cost of the cement purchased from the appellant. In discharge of the said debt in part, the respondents issued a cheque, dated 30-03-1998, for Rs.13,50,000/- in favour of the appellant drawn on Centurion Bank, Visakhapatnam. When presented for collection, the cheque was dishonoured with an endorsement that it exceeded arrangement. Again, at the request of the respondents, the appellant presented cheque for collection in the 1st week of January, 1999. When it was sent for clearance on 16-01-1999, it was again dishonored endorsing ‘refer to deawer’. Subsequently, the appellant issued notice, dated 21-01-1999, to the respondents calling upon them to pay the amount of Rs.22,08,522/- within fifteen days after the receipt of the notice. The respondents having received notice did not make that payment. Thereafter, the appellant filed the complaint under Section 138 of the Negotiable Instruments Act (for brevity ‘the Act’) which was taken on file by the learned Magistrate and the respondents were tried for the offence under Section 138 of the Act.

The learned Magistrate acquitted the respondents-accused holding that the statutory notice issued on 21-01-1999 under Section 138 of the Act by the appellant-complainant is defective and is not in accordance with Section 138 proviso (b) of the Act and therefore, the complaint is not maintainable.

5. Now the point for determination in this appeal is whether the order of acquittal is legal and proper, which was passed by the learned Magistrate basing on the point that the statutory notice, Ex.P-4, issued by the appellant/complainant is defective and that the complaint is not maintainable.

6. In order to arrive at a conclusion on the finding recorded by the learned trial Court, it is necessary to look into Section 138 proviso (b) of the Act, which reads as follows:

“(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.”

From the above provision, it is obvious that the statutory notice shall contain the demand of payment of the cheque amount. Now it is necessary to peruse Ex.P-4, notice, issued by the appellant. In Ex.P-4, notice, the appellant mentioned about the amount of Rs.22,08,532/- which became due from the respondents to the appellant. Issuance of a cheque by the respondents is for an amount of Rs.13,50,000/- and it is dishonoured when presented for collection. But the appellant in para-7 of Ex.A-4, notice, stated as follows:

“That you are also informed that dishonour of cheque is also a criminal offence under section 138 of Negotiable Instruments Act and liable for punishment and therefore my client in addition to recovery of the money will also institute criminal proceedings against you, in case you fail to pay the said sum of Rs.22,08,552/- with interest @ 24% p.a. within 15 days from the date of receipt of this not