1. The petitioner, on 15.9.2005, handed over a cheque for Rs.3,00,000/-, to the respondent, towards the debt due by Sri Shivakumar and Smt Amrutha, who had availed a loan from the respondent, by deposit of title deeds. On 28.7.2005, the said cheque was presented for payment. It was returned unpaid by the banker of the petitioner on the ground of 'insufficient funds'. Respondent sent an intimation dated 15.9.2005 to pay the amount within 7 days, in terms of an affidavit executed by the petitioner.

2. The said cheque was again presented before the bank on 1.10.2005 and was dishonoured on the ground 'funds insufficient'. Respondent served a notice dated 6.10.2005, calling upon petitioner to pay the cheque amount within 15 days from the date of receipt thereof. Since, no payment was received, a complaint under S.200 Cr.P.C, was filed, to punish the petitioner for the offences under Ss.138 and 142 of the Negotiable Instruments Act, 1881 ('the Act' for short). Cognizance was taken and petitioner was summoned to face the trial. Petitioner pleaded not guilty. For the complainant, PW-1 was examined and Ex.P.1 to P.10 were marked. PW-1 was not cross examined. Accused was examined under S.313 Cr.P.C. There is no defence evidence. Considering the arguments addressed for the complainant and the written submission of the accused, learned Magistrate found the accused guilty of the offence under S.138 of the Act and sentenced the accused to pay fine of Rs.30,000/-and compensation of Rs.3,00,000/-and in default, to undergo simple imprisonment for a period of 6 months.

3. Criminal Appeal filed, contending that in view of issuance of intimation dated 15.9.2005 by the complainant, the subsequent demand notice dated 6.10.2005 (Ex.P.6) is not a valid notice and that the complainant has no cause of action to file the complaint. The contention was not accepted and the appeal was dismissed. Feeling aggrieved, the accused has filed this Criminal Revision Petition.

4. Sri Shankaranarayana Bhat, learned advocate, contended that both the Courts below grossly erred in passing the impugned judgments holding the petitioner guilty of the offence under S.138 of the Act, since, the complaint stood barred under the proviso to S.138 of the Act. He submitted that the complainant did not take action on the basis of an intimation dated 15.9.2005, issued seeking payment of the amount and hence, the complaint filed based on demand notice Ex.P.6, issued with regard to the same transaction is barred. Reliance was placed on the decisions in the cases of (1) Sadanandan Bhadran Versus Madhavan Sunil Kumar, (1998 Cri.LJ. 4066) and (2) Tameeshwar Vaishnav Versus Ramvishal Gupta, (AIR 2010 SC 1209). He submitted that, though the payee was free to present the cheque repeatedly within its validity period, once a demand is made and payment is not received within the prescribed period, the payee has to avail the cause of action which arose on the basis of the demand made and file the complaint, if any and that the dishonour of cheque on each re-presentation would not give raise to a fresh cause of action. He submitted that both the Courts below have committed a material error and illegality and hence, interference in the matter is warranted.

5. Sri Mahesh R. Uppin, learned advocate, on the other hand, contended that the communication sent by the payee of the cheque on 15.9.2005 is not a demand notice, but is only an intimation to drawer of the cheque with regard to the return of the cheque and he being notified to act in terms of the affidavit (Ex.P1) submitted by him, when the cheque in question was issued. He submitted that, in view of the request made by petitioner, the cheque was presented for the second time, within its validity period and the same having been returned as per Exs. P.4 and P.5, a demand notice vide Ex.P.6 was issued and in view of non-payment of cheque amount, complaint vide Ex.P.10 was filed. He relied upon the decision of the Apex Court in the case