The determination of disputed facts and the significance of non-mentioning of cheque numbers in the notice of demand depend on the factual context of each case.

G. PATRI BASAVANA GOUD, J.

( 1 ) THE petitioner is facing prosecution for an offence under Section 138 of the Negotiable Instruments Act, 1881 ('n. I. Act' for short), on the complaint filed under Section 200 of the Criminal Procedure Code by the respondent-complainant. The learned Magistrate has taken cognizance, has recorded sworn statement of the complainant, has found sufficient ground to proceed, and has directed issuing of process. The petitioner is aggrieved with the same.

( 2 ) THE case concerns two cheques allegedly issued by the petition eraccused in favour of the respondent-complainant, both dated 5-10-1999, one for Rs. 1,00,000/- and another for Rs. 50,000/-, both drawn on syndicate Bank, Gavipuram Extension Branch, Bangalore. On cheques being dishonoured on presentation for encashment, the respondent-complainant got issued a notice dated 26-10-1999 making a demand in writing as contemplated under clause (b) of the proviso to Section 138 of the N. I. Act. No payment of the amounts covered by the cheques having been made within fifteen days of receipt of notice, complaint came to be filed.

( 3 ) SRI Ramesh Chandra, learned Counsel for the petitioner-accused, herein, has two submissions to make. The first one is that, these cheques had not been issued at all in favour of the respondent-complainant, that the petitioner-accused had no transaction at all with the respondent-complainant, and that, he had delivered two cheques to the complainant's brother-in-law one Prasad, who had promised to lend money to the petitioner-accused, but did not do so. This is the first submission. The second submission is that, non-mentioning of the cheque numbers in the notice of demand issued under clause (b) of the proviso to Section 138 of the N. I. Act is fatal, and the very institution of the complaint gets vitiated.

( 4 ) SO far as the first contention is concerned, when it is the case of the respondent-complainant that the petitioner-accused had borrowed money from him, and in that regard, issued cheques concerned, and when it is the contention of the petitioner-accused that he had neither borrowed money from the complainant, nor had issued the cheques to the complainant, but that he delivered two cheques to one Prasad on the said Prasad promising to lend the money to the petitioner-accused, then, in my opinion, this is a matter to be appreciated on evidence being led in this regard in course of trial. it is not possible to pronounce upon the correctness of either of the two versions in this proceeding under Section 480 of the Criminal Procedure Code. Since these are disputed questions of fact, the correctness of which can be pronounced upon at the end of the trial by the learned Magistrate.

( 5 ) SO far as the second contention is concerned, the question as to whether the non-mentioning of cheque number in the notice of demand issued in pursuance of clause (b) of the proviso to Section 138 of the N. I. Act would be fatal to the very case instituted subsequently, would depend upon the facts and circumstances of each case. No doubt, dishonouring of a cheque would constitute of an offence under Section 138 of the N. I. Act, but, clauses (a) to (c) of the proviso to Section 138 of the n. I. Act also cannot be lost sight of. In many cases, there could be a bona fide mistake on the part of the drawer of the cheque in calculating the amount due to his credit in his account with the bank concerned. In any number of cases, a cheque might have been given bona fide believing that much of the amount is there to the credit of the drawer of the cheque in his account with the bank. It is for that reason that an opportunity is to be provided to him even after dishonouring of the cheque, by issuing a notice to him under clause (b) of the proviso to Section 138 of the N. I. Act. It is on receipt of such a notice that he would immediately come to know that the cheque that he has issued has been dishonoured. In that event, he would immediately arrange

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